Defamation proceedings against accusations of sexual misconduct: a Dutch case study in light of European human rights law

• In Event: Gender in criminal law and policy: Europe-wide perspectives

Abstract

Since the inception of the #metoo movement and ensuing movements that aim to give voice to victims/survivors of sexual violence and harassment, there has been a rise in criminal (and civil law) defamation proceedings against persons accusing others of such behaviours.
While these movements have sought to show the world the extent of the problem of sexual misconduct by raising the voices of victims/survivors that previously dared not speak up, in various instances the identity of alleged perpetrators has also entered the public domain (whether intentionally, accidentally or somewhere in between). Worldwide, such accusations have resulted in criminal – as well as civil – proceedings against the accusers, using offences such as defamation and slander. While the risks and long-lasting consequences of online shaming and digital vigilantism today are apparent, such proceedings have also been criticised as perpetuating exactly those inequalities and the epistemic injustices which the #metoo movement has sought to challenge.
In this paper a case study from the Netherlands is presented to throw light on the way criminal law is used against accusers of sexual misconduct since the #metoo-movement. The paper will also delve into the parameters that can be derived from the case law of the European Court of Human Rights to deal with such cases in light of the right to freedom of expression and the right to privacy. The question will be raised if and how the Dutch criminal justice system – and the ECHR framework behind it – has been able to take account of the particular context of #metoo and related movements to address broader patterns of systemic injustice.

Author

• Marloes van Noorloos, Leiden University