De volgende bepalingen zijn van belang.
- Artikel 266 van het Wetboek van Strafrecht (hierna: Sr):
“1. Elke opzettelijke belediging die niet het karakter van smaad of smaadschrift draagt, hetzij in het openbaar mondeling of bij geschrift of afbeelding, hetzij iemand, in zijn tegenwoordigheid mondeling of door feitelijkheden, hetzij door een toegezonden of aangeboden geschrift of afbeelding, aangedaan, wordt, als eenvoudige belediging, gestraft met gevangenisstraf van ten hoogste drie maanden of geldboete van de tweede categorie.
2.4.4Over de vraag onder welke omstandigheden sprake kan zijn van een beperking van de vrijheid van meningsuiting van een politicus die zich uitlaat over (laakbaar) gedrag van een andere politicus heeft het EHRM in zijn uitspraak van 28 juli 2020, nr. 53028/14 (Monica Macovei tegen Roemenië) overwogen:
“72. In this connection, the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Perna v. Italy [GC], no. 48898/99, § 39 (a), ECHR 2003 V; and Paraskevopoulos v. Greece, no. 64184/11, § 29, 28 June 2018).
73. The test of whether the interference was “necessary in a democratic society” requires the Court to determine whether it corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, for example, Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 41, 21 February 2012; and Paraskevopoulos, cited above, § 30).
74. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts, but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 IV; and Frisk and Jensen v. Denmark, no. 19657/12, § 51, 5 December 2017).
75. In this connection, the Court reiterates that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 XI; Makraduli v. the former Yugoslav Republic of Macedonia, nos. 64659/11 and 24133/13, § 62, 19 July 2018; and Paraskevopoulos, cited above, § 32). In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the status of the applicant and that of the plaintiff in the domestic proceedings, the content of the critical comments held against the applicant, as well as the context and the manner in which they were made public (see Lykin v. Ukraine, no. 19382/08, § 25, 12 January 2017; and Makraduli, cited above, § 62), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Makraduli, cited above, § 62) and that an applicant clearly involved in a public debate on an important issue is required to fulfil a no more demanding standard than that of due diligence as in such circumstances an obligation to prove the factual statements may deprive him or her of the protection afforded by Article 10 (see Makraduli, cited above, § 75, with further references).
76. When called upon to examine the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and on the other, the right to respect for private life enshrined in Article 8 (see Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG, cited above, § 83; and Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016).
77. Where the right to freedom of expression is being balanced against the right to respect for private life, the relevant criteria laid down in the Court’s case-law include: (a) contribution to a debate of general interest; (b) how well known the person concerned is and what the subject of the report was; (c) prior conduct of the person concerned; (d) method of obtaining the information and its veracity; (e) content, form and consequences of the report and (f) severity of the sanction imposed (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108-13, ECHR 2012; Axel Springer AG, cited above, §§ 89-95, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 165-66, ECHR 2017 (extracts); and Falzon v. Malta, no. 45791/13, § 55, 20 March 2018).
78. As regards, in particular, protection of the rights of politicians, the Court has held that while freedom of expression is important for everybody, it is especially so for elected representatives of the people. They represent the electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with their freedom of expression call for the closest scrutiny on the part of the Court (see Castells v. Spain, 23 April 1992, § 42, Series A no. 236; Lombardo and Others v. Malta, no. 7333/06, § 53, 24 April 2007; and Lewandowska-Malec v. Poland, no. 39660/07, § 60, 18 September 2012).
79. The Court has also held that a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures in respect of whom limits of critical comment are wider, as they are inevitably and knowingly exposed to public scrutiny and must therefore display a greater degree of tolerance (see Milisavljević v. Serbia, no. 50123/06, § 34, 4 April 2017; and Prunea v. Romania, no. 47881/11, § 30, 8 January 2019). A politician is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but in such cases the requirements of that protection have to be weighed against the interests of the open discussion of political issues (see, among other authorities, Lykin, cited above, § 26).
80. The Court has also held that Article 10 of the Convention does not, however, guarantee a wholly unrestricted freedom of expression even in respect of coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which are liable to assume significance when there is a question of attacking the reputation of private individuals and undermining the “rights of others”. Thereby, the information conveyed on issues of general interest is subject to the proviso that the party concerned is acting in good faith in order to provide accurate and reliable information (see Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal, no. 4035/08, § 31, 11 January 2011, with further references; and Kurski v. Poland, no. 26115/10, § 56, 5 July 2016).
81. Lastly, the Court reiterates that where the national authorities have weighed up the freedom of expression with the right to private life in compliance with the criteria laid down in the Court’s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see Von Hannover, cited above, § 107; Axel Springer AG, cited above, § 88; and Frisk and Jensen v. Denmark, cited above, § 54).”