Defamation () in Dutch criminal law is a form of insult where someone's honor or good name is attacked through a concrete accusation, made with the aim of publicizing it. When defamation is committed by means of a document, illustration or audio recording, it is called libel ().

Defamation and libel belong to expression offenses and have been punishable as crimes in Netherlands since the introduction of the Dutch Criminal Code in 1886. Since then, the provisions on defamation and libel have not been fundamentally changed by the legislator. They have only been adapted to technological and social developments.

Defamation differs from other forms of insult by the requirement of a concrete accusation and the aim of publicizing it. The accusation does not have to be untrue; an accusation relating to a true act can also be defamatory. However, someone who in good faith could assume that the accusation was based on truth and also served the public interest is not punishable. The same applies to someone who acted in necessary self-defense. Under certain circumstances, freedom of expression can also preclude a conviction for defamation.

Slander (Dutch: laster) is a qualified form of defamation in Dutch criminal law. Slander occurs when all elements of defamation are met and the perpetrator also knows that the accusation is untrue.

History

The word smaad (defamation) is derived from the Middle Dutch word smade, meaning 'attack on someone's dignity'. It is further related to the Old High German smahen which means 'to humiliate, belittle, despise'.Etymologisch Woordenboek, lemma smaad; Van Dale, lemma smaad. In this sense of 'intentionally offending', the word was also used in legal texts. Around 1300, the Sachsenspiegel referred, for example, to 'smatheit mit worten oder mit tat'.Die Dresdner Bilderhandschrift des Sachsenspiegels, Mscr.Dresd.M.32, folio 83r.Loose translation: defamation committed by words or deeds.

In the 17th century, Hugo Grotius made a dogmatic distinction between insult by words, which he called 'lasteringh' (slander), and insult by deeds (the 'hoon' - scorn). With an incorrect reference to the Sachsenspiegel, he equated 'smaet' (defamation) with verbal insult by 'lasteringh'. Following the theories of legal scholars such as Hugo Grotius, various forms of insult were gradually distinguished from each other. In German, and to a lesser extent Dutch, legal practice, simple insult by means of insults began to be distinguished from offensive slanders. However, the word smaad was still used in legal practice in the general sense of 'humiliation and offensive expression', such as in an Utrecht ordinance that prohibited 'smedelijke rimen ende andere scrifte'.Janssens 1998, p. 18-21.Loose translation: defamatory rhymes and other writings.

In that sense, the Criminal Code for the Kingdom of Holland of 1809 (the first Dutch criminal code) also used the term. This Code contained a provision that, among other things, punished 'smadelijke bedrijven' (defamatory acts) against another as scorn.Art. 164 CW: "He who, by striking, threatening or other defamatory acts, committed on or about a person's person, dwelling or place where he is, or also by contemptuous displays, or by making and disseminating drawings or prints, or in any other similar way, intentionally scorns, provokes, ridicules, seeks to make hateful or contemptible, shall be punished according to the circumstances [...]" The Criminal Code was only valid for two years. In 1810, the Kingdom of Holland was incorporated into the First French Empire, after which the Code was replaced in 1811 by the Code pénal. The Code contained a section with the heading 'slander, defamatory words or defamatory statements, breach of secrecy'. It criminalized the utterance and dissemination of 'smaad- of scheldwoorden' (in French injures) that did not contain an accusation of a specific fact but merely contained a specific vice.Art. 375 CP: "As for defamatory or abusive words, and offensive expressions, which contain no accusation of a specific and defined act but of an indicated vice, in case they are uttered in or at public places or gatherings, or are placed in printed or unprinted writings that have been disseminated and circulated, the penalty shall consist of a fine of sixteen to five hundred francs." In addition, all other 'smaadwoorden of beleedigende uitdrukkingen' (injures ou expressions outrageantes) were criminalized as offenses.Janssens 1998, p. 23-27.Art. 376 CP: "All other defamatory words or offensive expressions, where this double quality of seriousness and publicity does not apply, shall only give rise to simple police penalties. In both the Criminal Code and the Code pénal, however, there was no specific offense of defamation and the word was used in the everyday sense of 'humiliating, belittling, and insulting'.

Draft Criminal Code

On September 28, 1870, by royal decree no. 21, a state commission was established for the drafting of a new Criminal Code.Smidt I, p. 1. For the provisions on insult, the Commission wanted to break with the previous system of the Code pénal. Chairman De Wal proposed to take the Italian draft criminal code of 1870 as an example. The Italian draft distinguished three types of punishable insult. First, publicized and disseminated defamatory writings (libello famoso). In addition, defamation (diffamazione) by communicating the insult to several persons. Finally, simple insult (ingiuria) that did not meet the requirements of libel and defamation.Dorst Notulen I, p. 165. The preliminary draft still translated diffamazione as honor theft. Dorst Bijlagen I, no. 42. De Pinto proposed to change this name, because it concerned a crime that was much lighter than slander, which was not apparent from the word honor theft. According to De Pinto, the word 'smaad' (defamation) fitted much better here, also because of the close connection between honor theft and libel. The Commission shared these concerns and adopted the name defamation.Dorst Notulen II, p. 454; Janssens 1998, p. 34-35.

The State Commission submitted its report to the King on May 13, 1875, after which the government made some changes to the draft. On February 22, 1879, the Original Government Draft (O.R.O.) for a Criminal Code was sent to the House of Representatives.Kamerstukken II 1878/79, 110, no. 1. Now that the Italian draft criminal code had been taken as a starting point, the regulation of punishable insult in the O.R.O. differed significantly from the Code pénal. According to the government, this change was necessary because the old system was no longer followed in legal science and legal practice. Moreover, the insult provisions from the Code pénal, and especially slander, had still not penetrated the 'public consciousness'.Smidt II, p. 387. One of the changes was the number of independent insult offenses. The Code pénal distinguished three different forms of insult, namely slander, scorn, and insults. The new criminal code only had two main forms. Following the Italian draft, a distinction was made between defamation/libel and simple insult.Janssens 1998, p. 22; Smidt II, p. 388. Simple insult was a residual category for insults that did not possess the characteristics of defamation or libel.Smidt II, p. 388. Slander disappeared as an independent offense and became a qualified form of defamation.Janssens 1998, p. 36.This is called a qualified offense. This is a criminal offense in which, compared to the basic offense, additional elements have been added, so that the qualified offense is threatened with a heavier penalty.

In his dissertation on punishable insult, Janssens argues that the draft provision on defamation also shows similarities with the offense of diffamation introduced in France in 1819.Janssens 1998, p. 37.The French text of art. 13(1) loi du 17 mai 1819 reads: "toute allégation ou imputation d'un fait qui porte atteinte à l'honneur ou à la considération de la personne ou du corps auquel le fait est imputé est une diffamation." Among other things, the term 'honor or good name' is said to have originated from this French law.Janssens attributes this assertion to David Simons, who is said to have used it in his dissertation De vrijheid van drukpers in verband met het Wetboek van Strafrecht ('s-Gravenhage: Belinfante 1883). In addition to similarities, however, there are also clear differences. The French law of 1819 made it possible to insult a collectivity (e.g., a legal person or an administrative body). The Dutch draft provision, on the other hand, only recognized individuals as victims of insult. The offenses of defamation and libel were placed in a separate title with the heading insult. The text in the O.R.O. read:

Treatment of the O.R.O. in the House of Representatives The Committee of Rapporteurs of the House of Representatives could not fully agree with the draft provision of Article 279 O.R.O.The Committee of Rapporteurs had to comment on the bill on behalf of the House of Representatives. This comment was written in the form of a report to the government; the government then responded with an answer to the report. They agreed with the government that the old system of slander in the Code pénal was not effective, but they could also not agree with the new system. The biggest problem with the old slander provision was that it only concerned public communications, while the most punishable slander was often committed secretly and thus escaped punishment.Kamerstukken II 1879/80, 47, no. 25, p. 153. The Committee found the new defamation provision unclear and arbitrarily defined, thus missing its objective. They considered it inconsistent, among other things, that the communication of an accusation to one person was insufficient to constitute defamation, but communication to two persons with an interval of several years was. After all, communication to two persons can remain without consequences for the offended, while disclosure to one person can have major consequences for the defamed person. The Committee also found that the draft exceeded its purpose by allowing criminal prosecution when the defamation remained within a limited circle.

To address these concerns, it proposed to focus on the defamer's purpose – to make the accusation widely known. The provision was added to the draft that the defamation was committed "in public or with the obvious aim of bringing it to the public's attention" or "to publicize it". A minority could not agree with the words 'in public', because it would place too much emphasis on the place where the defamation was committed. Moreover, in their opinion, the addition was superfluous because it was already implied in the purpose of bringing the defamation to the public's attention (or publicizing it). Finally, it was proposed to delete the phrase 'under whatever guise' in the draft text, as it added nothing. The Committee also believed that the exclusion of housemates in the second paragraph of Article 279 O.R.O. should preferably be deleted. The exclusion had been added to the State Commission's draft by the government. The explanation in the explanatory memorandum was brief: the government believed that freedom of speech towards housemates should be fully respected by exempting conversations within the household from criminal prosecution for defamation.Kamerstukken II 1878/79, 110, no. 3 (MvT), p. 112.; Janssens 1998, p. 37. However, the addition was short-lived. In the government's response to the report, the minister agreed without much ado to the proposed editorial changes.