4 ms·

Dunno if this is the case in the Netherlands, but it's worth noting in some legal systems defamation is defined something like spreading harmful accusations as

Dunno if this is the case in the Netherlands, but it's worth noting in some legal systems defamation is defined something like spreading harmful accusations as opposed to spreading harmful lies. The intent being that if you have an accusation that is true, you settle it in the courts rather than in the press, with an angry mob, on social media, or the like. Since the whether or not the accusations are true doesn't factor into such a crime, it can be enforced on the presence of harmful accusations alone, which has fairly big implications for the sort of social media witch hunts that we've seen cropping up in the recent decade.

jorams 3y ago
The Netherlands has both. "Laster" requires the accusation to be untrue. "Smaad" is the broader form that does not require the accusation to be untrue. Justifications defined in the law are "necessary defense" and "common interest". The second one is specified as "believed in good faith that the charges were true and that the public interest required the charge." IANAL, but I think this can apply to social media witch hunts to at least some extent.
carlosjobim 3y ago
That makes the courts the sole deciders of truth, which is extremely bad in all ways. The press can for example discover and publish evidence of corrupt dealings of a politician, while there is a minimal chance any prosecutor or court would be interested in the case.
- flangola7 3y ago
  Most Dutch would not agree with this opinion.
- jeltz 3y ago
  Things like political corruption are exempt from this due to "common interest". So, no, that is not an issue. As a someone from a country with similar law I think it is a good thing. Social media witch hunts are not good for society and they often fall under our defamation laws but people are still allowed to write about corrupt politicians.
  - metalcrow 3y ago
    Have the Netherlands never had a case where the courts ruled against the interests of the public? Or favored the corrupt system? It seems trivial to imagine a case where a rape victim can accuse someone, but the attacker can beat the case by technicalities and then silence their accuser.
    - hobo_in_library 3y ago
      That's where the "make the accusation in the courts, not the press" rule is most important! If you have a legitimate accusation to make, prosecute. Don't merely complain on social media.
      - metalcrow 3y ago
        My example was in the case where the prosecution failed unjustly. Or are you allowed to talk about a failed prosecution and still claim that you believe the individual in question did it? Even if so, that also poses a problem in cases where the action was immoral but not illegal, not to mention if the case cannot be prosecuted for financial or other reasons. It's confusing from a US perspective, where we believe free speech is important since it allows the bringing of injustices to light. Are courts in the Netherlands trusted so much that they leave almost no injustices for others to speak out on?
- Arnt 3y ago
  Fact finding is part of the court's job. The courts are the institution we've established to do that job. A case has a fact-finding part, then a part where the law and precedences are matched to the facts as found, then a decision.
  - derefr 3y ago
    It would be interesting if those were two different systems: a system where the outcome is a declaration of "what the state believes to be true" being entered into the books; and then another system that — perhaps quite efficiently — can just consume the output of the former system, to evaluate the application of law in the deciding of punishments for crimes. An "is" system, and an "ought" system, per se. There actually is a very limited "is" system in use in common law in many countries — the https://en.wikipedia.org/wiki/Inquest https://en.wikipedia.org/wiki/Inquest (usually: "coroner's inquest.") But they're really only used in practice to find cause-of-death. A "libel inquest" would be quite novel.
    - Arnt 3y ago
      So instead of having one long document with chapters about facts in front, you'd have two shorter documents, one about facts and one about the rest, and the org chart of the people writing it would be somewhat different.
      - derefr 3y ago
        The idea would be that the facts of the case wouldn't be subsumed by matters of justice. Right now, in most legal systems, you can't create legislation based on findings of a court other than the ultimate toplevel finding(s) — and those toplevel findings, at least in a criminal court, can only ever be about innocence/guilt for specific crimes, and can only ever be about the titled parties of the case. This means that, if the justice system happens to discover an important fact about someone that it would be helpful for legislation to "trigger upon" — but that fact doesn't translate to their guilt in a specific specific crime that they are a titled party to a settled criminal case about — then there's no toplevel assertion for the fact about them to "ride in on" to have effect in law. So the law is effectively helpless to do anything, despite the court having "uncovered" that information. Consider: a criminal trial for kidnapping of a child, where the child was being dropped off at a daycare center every day; and in the course of establishing motive, testimony from expert witnesses reveals that said daycare center was negligent in their care — perhaps criminally, though not necessarily so — but at least to a degree that would trigger the state licensing board for daycare centers to revoke their license... if the trial had been a civil trial about that. Because the evaluation of the innocence or guilt of the accused for the crime of kidnapping, does not directly require the establishment of the "truth of the matter" of whether the daycare center was negligent, the testimony given in such a trial cannot be relied upon to establish negligence. But, if the "truth of the matter" came first — as its own top-level inquest — and if it sought the truth-value of every claim made by both parties, hierarchically — then the result of the inquest could be used directly to decide both the guilt of party X in the crime of kidnapping, and the guilt of business Y re: both civil suits and statutory negligence. Consider also: in such a system, you could get rid of the concept of a "class-action lawsuit." Class-action suits exist because the alternative is O(N) expensive and lengthy civil suits that each have to independently evaluate the claims of harm to a concrete party. But if instead an inquest is done into the "truth of the matter" of whether party X caused harm to a class Y; and then that fact became valid basis for any individual member of class Y to sue X and receive a summary judgement based upon the already-evaluated "truth of the matter" — then we'd have a much more useful system, where only the people who really do feel that they were harmed would bother to sue, and would each then receive damages sized to the harm actually done to that party. (Yes, I realize that this creates an unlimited liability on the balance sheet of any company who "falls victim to" a class-action inquest, given that there's no point at which they can say they've settled with all parties. Good! They should be perceived as permanently tainted by anyone looking to M&A with them — they're the corporate equivalent of a convicted felon!)

jorams 3y ago

The Netherlands has both. "Laster" requires the accusation to be untrue. "Smaad" is the broader form that does not require the accusation to be untrue. Justifications defined in the law are "necessary defense" and "common interest". The second one is specified as "believed in good faith that the charges were true and that the public interest required the charge." IANAL, but I think this can apply to social media witch hunts to at least some extent.

carlosjobim 3y ago

That makes the courts the sole deciders of truth, which is extremely bad in all ways. The press can for example discover and publish evidence of corrupt dealings of a politician, while there is a minimal chance any prosecutor or court would be interested in the case.

flangola7 3y ago
Most Dutch would not agree with this opinion.
jeltz 3y ago
Things like political corruption are exempt from this due to "common interest". So, no, that is not an issue. As a someone from a country with similar law I think it is a good thing. Social media witch hunts are not good for society and they often fall under our defamation laws but people are still allowed to write about corrupt politicians.
- metalcrow 3y ago
  Have the Netherlands never had a case where the courts ruled against the interests of the public? Or favored the corrupt system? It seems trivial to imagine a case where a rape victim can accuse someone, but the attacker can beat the case by technicalities and then silence their accuser.
  - hobo_in_library 3y ago
    That's where the "make the accusation in the courts, not the press" rule is most important! If you have a legitimate accusation to make, prosecute. Don't merely complain on social media.
    - metalcrow 3y ago
      My example was in the case where the prosecution failed unjustly. Or are you allowed to talk about a failed prosecution and still claim that you believe the individual in question did it? Even if so, that also poses a problem in cases where the action was immoral but not illegal, not to mention if the case cannot be prosecuted for financial or other reasons. It's confusing from a US perspective, where we believe free speech is important since it allows the bringing of injustices to light. Are courts in the Netherlands trusted so much that they leave almost no injustices for others to speak out on?
Arnt 3y ago
Fact finding is part of the court's job. The courts are the institution we've established to do that job. A case has a fact-finding part, then a part where the law and precedences are matched to the facts as found, then a decision.
- derefr 3y ago
  It would be interesting if those were two different systems: a system where the outcome is a declaration of "what the state believes to be true" being entered into the books; and then another system that — perhaps quite efficiently — can just consume the output of the former system, to evaluate the application of law in the deciding of punishments for crimes. An "is" system, and an "ought" system, per se. There actually is a very limited "is" system in use in common law in many countries — the https://en.wikipedia.org/wiki/Inquest https://en.wikipedia.org/wiki/Inquest (usually: "coroner's inquest.") But they're really only used in practice to find cause-of-death. A "libel inquest" would be quite novel.
  - Arnt 3y ago
    So instead of having one long document with chapters about facts in front, you'd have two shorter documents, one about facts and one about the rest, and the org chart of the people writing it would be somewhat different.
    - derefr 3y ago
      The idea would be that the facts of the case wouldn't be subsumed by matters of justice. Right now, in most legal systems, you can't create legislation based on findings of a court other than the ultimate toplevel finding(s) — and those toplevel findings, at least in a criminal court, can only ever be about innocence/guilt for specific crimes, and can only ever be about the titled parties of the case. This means that, if the justice system happens to discover an important fact about someone that it would be helpful for legislation to "trigger upon" — but that fact doesn't translate to their guilt in a specific specific crime that they are a titled party to a settled criminal case about — then there's no toplevel assertion for the fact about them to "ride in on" to have effect in law. So the law is effectively helpless to do anything, despite the court having "uncovered" that information. Consider: a criminal trial for kidnapping of a child, where the child was being dropped off at a daycare center every day; and in the course of establishing motive, testimony from expert witnesses reveals that said daycare center was negligent in their care — perhaps criminally, though not necessarily so — but at least to a degree that would trigger the state licensing board for daycare centers to revoke their license... if the trial had been a civil trial about that. Because the evaluation of the innocence or guilt of the accused for the crime of kidnapping, does not directly require the establishment of the "truth of the matter" of whether the daycare center was negligent, the testimony given in such a trial cannot be relied upon to establish negligence. But, if the "truth of the matter" came first — as its own top-level inquest — and if it sought the truth-value of every claim made by both parties, hierarchically — then the result of the inquest could be used directly to decide both the guilt of party X in the crime of kidnapping, and the guilt of business Y re: both civil suits and statutory negligence. Consider also: in such a system, you could get rid of the concept of a "class-action lawsuit." Class-action suits exist because the alternative is O(N) expensive and lengthy civil suits that each have to independently evaluate the claims of harm to a concrete party. But if instead an inquest is done into the "truth of the matter" of whether party X caused harm to a class Y; and then that fact became valid basis for any individual member of class Y to sue X and receive a summary judgement based upon the already-evaluated "truth of the matter" — then we'd have a much more useful system, where only the people who really do feel that they were harmed would bother to sue, and would each then receive damages sized to the harm actually done to that party. (Yes, I realize that this creates an unlimited liability on the balance sheet of any company who "falls victim to" a class-action inquest, given that there's no point at which they can say they've settled with all parties. Good! They should be perceived as permanently tainted by anyone looking to M&A with them — they're the corporate equivalent of a convicted felon!)