Should Critique on Governmental Policy Regarding COVID-19 Be Tolerated on Online Platforms? An Analysis of Recent Case-Law in the Netherlands

Abstract

This policy and practice note describes and discusses two recent decisions by the District Court in Amsterdam regarding the applicability of YouTube’s and Facebook’s Community Guidelines on COVID-19 misinformation. The decisions (Café Weltschmerz /YouTube and Smart Exit/Facebook) illustrate the tense intersection between, on the one hand, the possibility to express critique on the government’s policy to fight the outbreak of COVID-19 in the Netherlands, and on the other hand, the prevention of (dis)information with the potential to harm public health.

The author will point out that the two decisions, although covering merely the same subject matter, differ significantly in argumentation regarding the (scope of the) application of the freedom of expression. Analysing this divergence in argumentation will show that the root of the difference can be traced back to a different valuation of the role of the online platforms regarding the dissemination of speech. A debate on this divergence is needed to prevent inconsistency in future decisions and contributes to the broader discussion on content regulation in the European Union.

Keywords: COVID-19, content moderation, freedom of expression, Netherlands