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Mayors could impose so-called ‘online area bans’ to temporarily prohibit people from expressing themselves on social media or repeating specific calls. However, when the mayor of Utrecht imposed such a ban, the administrative judge ruled that she was not allowed to restrict freedom of expression and had no control over what happened online.  

Mayor Halsema disagrees with this ruling and wants to take similar measures via the Municipalities Act. Together with forty other mayors, she signed an opinion piece in NRC on Monday, 6 February, to call for a change in the law. According to actors, the current legislation is limited to intervention in the physical world and is, therefore, ‘outdated’.  

Incitement

Incitement is embedded in Article 131 of the Penal Code and concerns the public, verbal or written incitement of others to commit a criminal offence or violent action against public authority. Halsema and the other mayors also want to restrain online incitement, ensuring faster enforcement. Those guilty of incitement can already be prosecuted through criminal law. But this procedure is often very slow, and justice usually only acts when a disturbance has already occurred.   

Schuilenburg understands why mayors are keen to intervene. Yet, he also warns: “I fear that they will stretch the boundary of what constitutes incitement, for fear of creating risks to public order. And that this will also put pressure on the right to demonstrate, for example, because officials can quickly interpret calls to protest as incitement.” 

What is the limit? 

Schuilenburg observes that mayors want to intervene more and more quickly to prevent risks. “You already see demonstrations being banned relatively early concerning public disorder”, the professor argues. According to him, mayors have become like sheriffs who have already been given many surveillance powers in recent years to tackle insecurity. “Moreover, several reports have shown that demonstrations are mainly seen as a risk to public order and not as the exercise of a fundamental right”, Schuilenburg concludes.   

In addition, Schuilenburg questions where the boundaries of online area bans lie. After all, mayors are bound to the area of their municipality in the physical world, but in the online world, this is difficult to delineate. “Something strange threatens to happen: that mayors extend their powers to other municipalities where someone posts something online”, Schuilenburg explains.   

Moreover, Schuilenburg suspects that municipalities do not have enough qualified staff to monitor the internet: “This is, in fact, quite a task that requires municipalities to hire specially trained staff”. “And all this stands apart from the fundamental question of whether it is desirable - in addition to the police and commercial companies - for mayors to monitor online life”, Schuilenburg stresses. In that context, he points to the danger of surveillance solutionism - the idea that risks can be prevented by controlling human behaviour with digital surveillance.