What are expression offenses?
Expression offenses are criminal offenses where an expression is central. What kind of expressions are we talking about? It can be something you say, something you write down, or even an action you perform. Under certain circumstances, this can constitute a criminal offense. Of course, that is not always the case. To assess whether the expression is punishable, the content of the expression must be examined. Sometimes an expression can infringe on the rights of another. In that case, the expression may be punishable. However, this is not always easy to determine. After all, when you are criminally prosecuted for a certain expression, your right to freedom of expression is restricted. That is not permitted without good reason. With expression offenses, there is therefore a tension where your right to freedom of expression must be weighed against the rights of the person affected by the expression.
What different expression offenses do we know?
Our Penal Code contains a large number of expression offenses. In practice, however, not all of those offenses occur frequently. We will therefore discuss some common expression offenses.
Simple insult
Simple insult is the most common expression offense. Simple insult is easily established. This criminal offense occurs if the expression harms the honor or good name of another. The issue is whether the expression is actually insulting. Insulting certain persons is specifically criminalized, such as insulting the King, insulting a member of the government of a friendly state, and insulting a public official.
Group insult
A special form of insult is group insult. Unlike simple insult, group insult is not directed at one person, but at a group. Group insult occurs when someone makes insulting remarks about a group of people because of their race, their religion or belief, their hetero- or homosexual orientation, or their physical, psychological, or mental disability.
Defamation
Defamation is, as it were, a more specific form of simple insult. We speak of defamation if the expression contains the accusation that someone has performed a certain act and this accusation has harmed the honor or good name of the other. Defamation is therefore not at issue if you merely express an insulting opinion about someone. We only speak of defamation if you accuse someone of having done something that puts that person in a bad light. In this regard, it is irrelevant whether that accusation is correct or not. Even if your accusation is based on the truth, it can constitute punishable defamation.
Libel
Libel is again a more specific form of defamation. Libel also involves an accusation that someone has performed a certain act, which accusation has harmed the honor or good name of that other person.
Threats
Threatening is an expression offense with a completely different character. We speak of a threat when someone indicates that he or she will commit one of the serious offenses mentioned in the law against another. Because a threat constitutes a serious infringement on the rights of the other, freedom of expression does not play a major role here.
Sedition
Sedition occurs when someone incites others to any criminal offense or to violence against public authority. Because this punishable expression can jeopardize safety, freedom of expression also plays a less important role here.
How can an expression offense be committed?
When thinking of expression offenses, we quickly think of oral expressions. That is indeed a common category. Most expression offenses can be committed orally. For example, if you verbally abuse another person. But that is not the only form in which expression offenses occur. Expression offenses can also occur in writing. If you write down an insult on paper and show it to the person the insult concerns, then that is also punishable. Even if you did not speak the insult aloud. In addition, expression offenses can also consist of behaviors, even if these behaviors are not accompanied by any oral or written expression. Many different examples can be conceived of behaviors that can constitute an expression offense. If you flip someone off, for example, that can constitute a punishable simple insult. If you point a firearm at another, that can constitute a punishable threat.
What role does freedom of expression play?
It has already been mentioned several times that the right to freedom of expression can play an important role when it comes to expression offenses. When you are criminally convicted for an expression offense, your right to freedom of expression is restricted. In some cases, that is accepted and the right to freedom of expression does not stand in the way of a conviction. In the case of threats and sedition, for example, the expression has such undesirable consequences that it is quickly found acceptable for a criminal conviction to follow and for the right to freedom of expression to be limited. With other expression offenses – such as simple insult, defamation, and libel – this is often somewhat more difficult.
When an expression hurts another, it may be desirable to take criminal action against it, but at the same time, the right to freedom of expression of the person from whom the expression originates must not be restricted too lightly. In that case, a balancing of interests must therefore take place to assess whether the right to freedom of expression stands in the way of a criminal conviction. In this regard, the content of the expression, the context in which that expression was made, and the purpose for which that expression was made are of decisive importance. It must be examined whether the expression contributes to a public debate and whether that expression is not unnecessarily offensive. In this regard, the person from whom the expression originates and the person whom the expression concerns are also of great importance. When a politician expresses an opinion, it should not be easily restricted by means of a criminal conviction, even if that opinion is unpopular. The same applies, for example, to journalists. At the same time, a politician must also be able to take a lot. If an expression relates to a politician, there is enhanced protection of freedom of expression. Sometimes an expression must be provided with substantiation to prevent criminal conviction. We then speak of factual judgments. Other expressions fall under the protection of freedom of expression even if they are not further substantiated. These are value judgments. Ultimately, it depends on the circumstances of the case whether the right to freedom of expression stands in the way of a criminal conviction for an expression offense.
Do I need a lawyer if I am suspected of an expression offense?
When you are criminally prosecuted for an expression offense, it must ultimately be assessed within the criminal case whether all requirements have been met to reach a conviction and whether the right to freedom of expression does not stand in the way of a conviction. Various factors are important in this regard. A specialized criminal defense lawyer can best assess for you which circumstances are relevant and should therefore be presented to the court. A criminal defense lawyer can also search for applicable case law for you. Because there is a lot of important and relevant case law in the field of freedom of expression from the European Court of Human Rights, it is particularly wise to engage a criminal defense lawyer in the case of expression offenses.
