Dutch court acknowledges objections but finds no grounds for ban: No ban on stemfies

POSTED: 05/11/14 7:31 PM

St. Maarten / THE HAGUE – There is no law that prohibits voters taking pictures of themselves with their ballot to show whom they have voted for (so-called stemfies), a court in The Hague ruled yesterday in summary proceedings brought by the Foundation for the Protection of Civil Rights against Home Affairs and Kingdom Relations Minister Ronald Plasterk. During the municipal elections on March 19, Plasterk tweeted: “I do not encourage people to make stemfies but it is allowed to do so.”

The plaintiff went to court demanding that Plasterk rectify this statement. Their main argument against stemfies is that they allow for undue and verifiable influence on voting behavior by third parties.

In St. Maarten, the case was followed with more than average interest. Parliament has urged the government to remove the black curtains from voting booths for the August 19 elections to make it easier to check whether voters are taking pictures of their ballot. The Dutch court ruling seems to make this measure a moot point because it opens the way for voters to do as they please.

On August 4, the court in Philipsburg will handle an election fraud case against police officers and a member of the voluntary corps VKS who allegedly sold their votes in the September 2010 elections for $300 a piece to the United People’s party. A representative of the party, an uncle of party leader Theo Heyliger, is also summoned in this trial. The maximum punishment for election fraud is currently 3 months imprisonment or a $165 fine.

Judge Hofhuis stated yesterday in his ruling that “the disadvantages outweigh the advantages” but this does not lead to the conclusion that stemfies are prohibited. “The minister’s statement is therefore not incorrect or wrongful.” The judge did not comment on the question whether, considering the ballot secrecy, it was sensible for the minister to make his statement.

For the European elections, the state will inform voters through posters in de polling stations that they are under no obligation to make public whom they voted for.

In January, Plasterk’s ministry published a folder about the municipal elections that contains a reference to social media in the polling stations. It stated amongst others, “More and more people and members of polling stations use smart phones and social media on Election Day, sometimes even in the voting booth. The Electoral Law does not impose explicit rules for these kinds of resources. Voters are allowed to take pictures of themselves as long as this does not hinder the voting process. Admitting smart phones must not result in a situation whereby the secret ballot of other voters is no longer guaranteed, or whereby they feel this as an infringement on their privacy.”

The folder goes on to point out that it is prohibited to photograph voters in the polling stations without their permission.

Later in January, Plasterk said in a radio broadcast that he had ordered a thorough research on the topic.  This was his conclusion: “I have added the instruction that it is not allowed to photograph or to film others in the polling station, but it is allowed to take a selfie of yourself and of your ballot in the voting booth and you are also allowed to distribute that photo.”

For good measure, Plasterk added, “I have checked how things hang legally, but I actually find it also not unpleasant because when people post (their stemfie – ed.) others will think, hey so and so has voted, I have not done that yet. Maybe it has a positive effect that will inspire others to go and vote as well.”

Answering a letter from a second plaintiff, an unidentified voter from Eindhoven, Plasterk wrote in early March that nobody can be forced to reveal for whom he or she has voted. The constitution states that the vote is secret, but this does not ban voters from announcing voluntarily whom they voted for. Voters have the right to keep their vote secret, Plasterk concluded, but there is no obligation to do so.

The minister concluded that making stemfies is not prohibited. He did point out in the same letter that it is however prohibited to pressure someone to vote a certain way, or to accept bribes for voting a certain way.

“If a voter is able to prove afterwards through a picture whom he voted for, the danger exists that a third party will force him to vote a certain way and to prove this,” the Foundation for the Protection of Civil Rights argued in its petition. “It cannot be excluded – certainly when there is only a limited number of votes – that it is possible to determine how others voted who did not make a stemfie.”

The foundation also pointed to an article in the Electoral Law that prohibits voters doing anything else with their ballot than taking it folded-closed to the polling station.

The court ruled that stemfies relate to a most important aspect of democracy. “The interest of free elections with an absolute secret ballot is essential for the effectuation of democratic principles. There is however no dispute about the fact that everybody is free before or after voting to announce his vote. Seen this way, the secret ballot is not an obligation but a right.”

Judge Hofhuis added that voters are also free to lie about their vote – though he put it in more formal terms. He also considered that the plaintiffs have valid grounds for their objections against the use of stemfies. “It is possible that eligible voters experience pressure from third parties, for instance within the family, work or religious circles, to show whom they have voted for, or that they are rewarded for their vote.”

The court furthermore pointed out that voters could ask for a new ballot after making their stemfie. They could also make their vote invalid after taking the picture.

The state defended itself against the complaint, saying that stemfies could have a promotional effect. The state also referred to freedom of expression as an argument in favor of stemfies.

“These advantages nor the aspect of freedom of expression outweigh the objections,” the court ruled. “Every potential infringement on the secret ballot is extremely serious. Frustrating or at least discouraging such infringements carry the most weight, also in relation to the basic right of freedom of expression.”

Judge Hofhuis was however firm in his ruling on a possible ban on stemfies. “Such a prohibition does not exist in the Netherlands. (….) The fact that one could derive from the evident importance of free elections and the secret ballot, that stemfies apart from advantages could have more serious disadvantages, does not lead to the conclusion that stemfies are currently outlawed.”

 

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