Philipsburg – The Ministry of Justice would like to inform the general public about a person’s right of freedom of speech as stipulated in Article 10 of our Constitution and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (EHRM). St. Maarten is bound by the EHRM.
The right to freedom of speech is one of the most essential human rights. It means that you must be able to freely express your opinions.
However, there are legal limitations to this human right. The freedom of speech cannot lead to a violation of other human rights an individual has, such as the right to privacy and family life. One aspect of the right to privacy and family life is the right not to be subjected to attacks upon his/her honor and reputation.
A legal limitation to the freedom of speech is found in the Criminal Code the form of defamation and slander (in Dutch: smaad and laster). Defamation and slander are serious criminal offences.
The definition of defamation (smaad) is:
“He who intentionally attacks someone’s honor or good name, by accusation of a certain fact, with the apparent purpose of publicizing it.”
The definition of slander (laster) is:
“He who commits the crime of libel or defamation knowing that the accusation is contrary to the truth.”
According to Articles 2:223 and 2:224 of the Criminal Code smaad is punishable with a fine up to ANG 10.000 or up to 6 months detention. Laster is punishable with a fine up to ANG 25.000 or up to 3 years detention.
If these crimes are committed against a government official or dignitary, the penalties are even higher. That is, a fine up to ANG 25.000 or 8 months detention (smaad) and a fine up to ANG 100.000 or 4 years detention (laster).
In addition to these criminal limitations to the freedom of speech, there is also a civil legal limitation found in the Civil Code. Intentionally attacking someone’s honor or good name, by accusation of a certain fact can be considered a civil unlawful act (Article 6:162 of the Civil Code). A person who’s honor or good name is damaged by a publication, can start a civil case to correct this unlawful act. If the claim of an unlawful act is considered justified, the judge often instructs the person responsible for the damage to publish a rectification within a set short timeframe. In addition to that, the payment of damages can be imposed by the judge.
To answer the question of which human right – the right to freedom of speech or the right to protect one’s reputation – weighs more heavily in a case, the mutual interests must be weighed. The interest of a person that he or she should not be exposed to lighthearted imputations and the interest of the other person to be able to express themselves in public in a critical, informative, opinionated or warning manner about matters that affect society. Which of these interests, which are in principle equal, should prevail depends on the circumstances of the case. These circumstances include the seriousness of the accusations, the breach of reputation and – seen from the perspective of the public interest – the matter that the publication wishes to expose, but most importantly the extent to which the accusations are supported by the available factual material.