4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
Panel IPSA-RC48 – Session 1 or 2
Transparency and E-governance (administrative culture)
Mayors in cyberspace: Lessons from the Netherlands regarding the role of local government in the event of digital disturbance of the public order
Author(s)
Dr. Willem Bantema
NHL Stenden Hogeschool
Date of presentation
June 28, 2019
4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
Introduction
Four youths were injured in the panic resulting from a threatened shooting at a secondary school in Curacao. Soon it became clear that the episode was only a prank, based on false information disseminated over social media. The hoax was fuelled by a video clip on Facebook, which showed armed boys in a driving car, swinging their weapons. The clear relationship in this case between social media and public order is not new. Consider, for instance, the police shooting in Ferguson; the London riots of 2011; and the social unrest, social media hoaxes, and false news regarding the fire in Notre Dame Cathedral in Paris.
Recent advances in digitization have resulted in an increasing number of parties involved in security and safety issues. Security and digitization often intersect in the domain of cybercrime, but their intersection also includes issues of surveillance and maintaining law and order. This paper focusses on the role of mayors in the Netherlands in the preservation of public order and safety when the internet and social media are involved. Dutch mayors have several administrative powers that can be used in the prevention of disorder in local public life.
The local perspective taken in this paper may be surprising, for several reasons. Firstly, because the internet and social media are neither purely public or nor purely private, it is unclear who is responsible for their regulation. Secondly, if the internet and social media are worldwide in their scope, what is the advantage of adopting a local perspective on the regulation of public order? Thirdly, regulation of citizens’ online behavior is typically seen as the domain of criminal law, given the criminal character of some of this behavior and given the laws protecting freedom of speech that frustrate the possible use of administrative powers to regulate such behavior. In other words, the relevance of local governance and mayors is not obvious.
However, there are certain reasons why the perspective of mayors in the Netherlands has been chosen for this paper and why this perspective could be fruitful in relation to the regulation of social media. First of all, the Dutch criminal justice system is heavily overcharged, and exploration of the use of administrative powers may support or strengthen 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
criminal justice. Secondly, most behaviors of online agitators are not criminal offences and not a domain for prosecutors. Thirdly, a growing proportion of societal and human interaction occurs online, and thus public order is increasingly related to the internet and social media, in which the offline and online worlds are heavily entwined. Fourthly, Dutch mayors have particular administrative powers that they can use to preserve public order and safety, and there are cases in which they might be able to use these powers in a digital environment. In addition, the legal basis for the administrative powers of mayors is formulated openly and broadly, so that cyberspace and social media could likely be included within the definition of these without controversy. Fifthly, and related, criminal law is applied after the fact, and so is often too late to prevent public order problems and related societal costs, while administrative law is faster and thus potentially more useful in preventing disturbances of public order. For instance, when a social media agitator calls for a great event in the centre of a city, a mayor likely possesses the power to prevent this through early intervention, before a public order problem arises. A sixth and final motivation for this paper is the fact that no other scholars have taken this local perspective on social media and local public order. How is a local Facebook page different from a physical square?
Research question
Can the administrative powers of mayors in the Netherlands be used online to prevent local public order problems related to the internet or social media? And what are the views and experiences of practitioners about using these powers online?
Structure
The paper is divided into six sections. In the first section, the legal framework and context of Dutch mayordom is briefly described, followed by a short section describing the methods used in this study. Next, some examples of digital disturbances of public order are reviewed. The last three sections offer a legal analysis of the application of mayoral administrative powers over public order in an online world and reflect upon definitions and the views of mayors regarding their role in cyberspace. This paper ends with lessons learned from this study. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
1. Dutch mayors, their administrative powers, and their legal framework, in brief
As of 1 January 2019, the Netherlands has 355 municipal authorities1. Municipal authorities perform many different tasks, including registering residents, building roads and footpaths, providing social services, and maintaining law and order. Mayors are generally responsible for maintaining law and order, crisis management, and representing their councils at the national and international levels. Mayors decide how to deploy police forces to ensure public security. For example, they have powers to close illegal cannabis plantations, evict people from their homes if they commit acts of domestic violence, and take emergency action to counter threats to public security and order. In the event of an emergency, the mayor leads the crisis team. In the Netherlands, a mayor is a non-elected administrative authority appointed by the national government. The mayor chairs both the executive board and the legislative council of the municipality and is responsible for safety and public order.
A short description of public order and safety is needed to understand the exploration of the ‘law in action’ in this study. The term ‘public order’ is broadly defined, and its meaning is often debated by lawyers and scholars. The Dutch government (1988) explains it as the ‘desired level of order and rest in public life.’2 In the Dutch academic literature, it is defined as ‘the regular course of events in public spaces’.3
Article 172 of the Municipality Law determines that the mayor is in control of the enforcement of public order and safety and has administrative powers to support him in this task. According to Article 172 of the Municipality Law, enforcement includes ‘maintaining and re-establishing of the local public order and ensuring compliance in the case of non- compliance, when order and rest in the local public life are disordered’. Thus, the administrative powers of mayors can be used in the prevention of disorder in local public life.
1 At 1 of January 2018 (during our study) the Netherlands has 380 municipal authorities. 2 Kamerstukken 11, 1988/1989, nr. 10, p. 89. 3 De jong e.a. 2016. P.10-11. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
Also important to mention is the definition of ‘public space’. Public space can be divided into public spaces (1) and publicly accessible spaces (2). Public spaces are accessible to everyone without such restrictions as tickets, membership, or other permissions or conditions formulated by the owner of the space. Examples of public spaces are streets, public squares, and terminals. Publicly accessible spaces are also open to the public, but access is related to specific goals and the owners of these spaces can formulate conditions for or restrictions upon access. Examples of publicly accessible spaces are restaurants and hospitals. Besides public spaces and publicly accessible spaces, there are also private spaces, such as residences and other fully restricted spaces. These sorts of spaces are not the domain of mayors in their role as guardians of public order and safety unless public order is disturbed from such a place.
Examples of administrative powers to regulate public order and safety are a preventive payment penalty (to prevent an actual offense from happening), an area ban (the creator of a nuisance is banned from a specific area for a set period of time), and an administrative power to close houses used for criminal activities such as drug trafficking.
2. Methods
This explorative study is based on a legal analysis and interviews with 25 experts and 14 mayors to investigate their views on the potential role of mayors in administrative law enforcement in cyberspace. The interviews took place between 1 July 2017 and 20 May 2018, and the duration the interviews varied from 30 minutes to 1 hour. The study was funded by Police & Science.
3. Experiences and examples of digital disturbances of public order
3.1 Examples from the Netherlands Before embarking upon a legal analysis, we first present some examples of digital disturbances of the public order in the Netherlands mentioned by our respondents. These concern, for instance, online calls (over social media) for a water fight with water guns, online calls for demonstrations (without permission), hypes and influencers on social media, 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
soccer hooligans, and announced fights. In some cases “sexting” and social media (based on criminal law in the Netherlands) even leads to suicide and societal unrest in municipalities. Other examples include calls for events like Project X (mobilization), online blaming of administrators or other authorities like the police, and threatening tweets about a potential school shooting (fake news). In addition, local events are sometimes the start of online (and eventually offline) unrest. We might also consider unrest related to paedophiles in residential areas, unrest related to the potential establishment of an asylum centre, and polarization between population groups on local Facebook pages or Twitter.
3.2 Project X - Haren Project X (Haren) will be explained in more detail here, because it is one of the most familiar Dutch examples of public order disturbances initiated online. Haren is a village near Groningen with 20,000 citizens. In September 2012, a 15-year-old girl accidentally posted an open Facebook invitation to her 16th birthday party. Facebook users broadcast the message, and thousands of youths heeded the call. The mayor tried to stop them by spreading a social media message stating in effect that there was no party. However, between 3,000 and 5,000 people assembled with severe disturbances as a consequence, including the destruction of shopping showcases and robberies. Project X (Haren) was a wake-up call for local authorities regarding the role of social media and its relationship to public order and safety.
In summary, in all cases in which there is an online component in a public order and safety problem, such as the mobilization of a large number of people, social unrest and rumours, violence, and witch hunts can occur. The problem is sometimes rooted in a local and physical event, and on other occasions the root is online. However, in all cases online behavior (most of the time social media posts, likes, and shares) is a factor.
4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
4. Legal analysis and discussion
As mentioned earlier, the term ‘public order’ is broadly defined, and its meaning is debated by lawyers and scholars. In the Dutch academic literature it is defined as ‘the regular course of events in public spaces’. Based on Article 172 of the Municipality Law, enforcement includes ‘ensure and duty for the actual maintaining and re-establishing of the local public order and ensuring compliance in the case of non-compliance, when order and rest in the local public life is disordered’. Thus, the administrative powers of mayors can be used in the prevention of actual or potential disorder in local public life.
At first glance, mayors have a wide discretionary scope to use administrative powers to enforce public order and safety in their communities, and these powers can be used for a range of public order and safety situations. As stated earlier, the disturbance of public order is not necessarily caused by behavior in a public space; it could be behavior outside the public domain, as, for instance, in a specific household.
4.1 Interpretation of ‘public order’ by practitioners As mentioned earlier, the legal definition of ‘public order’ is broad. Practitioners likewise recognize a broad definition of public order. For instance, some of them refer to responsibility of mayors in a broad sense for safety; they sometimes also refer to liveability and other things.4 Others add the local aspect by directing their definitions at local society: ‘normal and peaceful functioning of a local society’5 or a ‘municipality’6. Some respondents take an even broader perspective, talking about ‘a disturbance of public order whereby people feel themselves unsafe and societal unrest can derive.’7 One respondent refers to concrete disturbances of public order: ‘The normal functioning of a society could be disturbed by a demonstration, by loss of electricity, or by plunder.’8 Beside the public and
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local component, another component is added: ‘The legislator has consciously chosen for an open and broad definition, because it’s a variable concept, but what it clearly shows is that it’s always related to a physical context’9. Another respondent makes a similar statement and excludes the internet explicitly from the definition: ‘a proper course of events in the physical and public space. Chaos on the internet, for instance hate speech, is not a problem of public order and safety’.10 A very practical statement is made by one of the mayors: ‘I wish to speak to the first person who is capable of giving a proper definition of public order and safety. If I see a problem where I can use my administrative powers for maintaining public order I will formulate it as a part of public order and safety’.11
4.2 Interpretation by practitioners of ‘public space online’ There is also debate over the concept of ‘public space’ and the online interpretation of it. Is there an online (local) public space? Some respondents recognize an online public space: ‘In my opinion, it’s an extension of the public domain we know’,12 or ‘it’s a public domain, a kind of public or digital space where everyone can remain or be doing things.’13 Another respondent adds: ‘A distinction between public space online and offline is in my opinion not useful; there is one public domain.’14
However, certain complexities arise: ‘For the enforcement of public order one never thought about a mayor intervening on the internet’.15 Another respondent opts for more focus: ‘For which public domain? I think order and rest in the public domain (as mentioned in the law) isn’t applicable on the internet, although I admit that behavior on the internet can have an effect on order and rest on the street.’ Borders can also play a role, according to one
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respondent: ‘Only offline and within the borders of his municipality is a mayor responsible for public order and safety.’16
There is also discussion about the character of the internet and social media: ‘Facebook is just a private service on which people communicate. When you arep posting, you are not present in a public space. However, Facebook can be used to communicate emphatically to many others.’17 Additionally: ‘I think it’s too facile to describe services such as Facebook as solely private. Twitter and Facebook have a public character, so they are a kind of hybrid. The expressions on them are accessible to the public.’18 The configuration probably matters: ‘it’s possible to make your profile public, but it can also be configured as private.’19 One of the respondents reacts against a potential rejection of a mayor's role in online public space that would be grounded in the private character of social media: ‘I think that’s too 1992. Then you live in a complete other time, and that is very naïve when you look at societal unrest. One can say, it’s on the internet, but it occurs here, in a municipality.’20
4.3 Legal obstacles The first legal argument concerns the extent to which a sufficiently direct relationship exists between online behavior and offline disturbances of public order. A few calls on Facebook are probably not sufficient; a call must be shared among large groups of people and certain people must answer it. Perhaps the explicitness of the call and the explicitness of references to disturbances of public order have to be taken into account as well.
A second argument relates to uncertainty about the violator. The people who actually commit physical disturbances of public order are not necessarily (or even usually) the same people who place calls on Facebook and share those calls. The existence of troll-accounts makes the matter even more complex, because who is responsible for such behavior?
16 R12. 17 R15. 18 R6. 19 R8. 20 R18. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
A third argument concerns the territory of the administrative powers. The authority of mayors is restricted to the territory of the municipality, of which the external borders are absolute. Because of this, serious problems can arise with online disturbances of public order, since online agitators are often located outside the borders of the municipality, and computer servers are often located not only outside the municipality but even outside of the Netherlands.
A fourth argument concerns the legal principles of proportionality and subsidiarity and a consideration of relevant interests. The foundation of the Dutch legal system is the freedom of citizens. The question of which public interests justify legal interventions, and the question of the potential damage to individual freedom that such intervention might cause, has to be taken into account. “Proportionality” means that a restriction of these interests may not last any longer than necessary or be more severe than is required to accomplish the intended goal. “Subsidiarity” means, in this case, consistently choosing the lightest means to achieve a specific, determinate and substantially formulated goal. In this consideration of relevant interests, causality can also play a role. An online call is most often not a criminal offence, and the potential disturbance of public order is based on the anticipated consequences of the call. This assumes a sufficient relation between the call and the consequences. There are some problems here.
In many cases, it is not a single call on the internet that precipitates an event but rather a shared call. This implies difficult questions about causality of calls and their effects on public order (mentioned earlier). Besides this, probably most of the time the online agitator is not the same person or group of people who are present on the street in the disturbance of public order. The question, therefore, is ‘who is responsible?’ What responsibility do the online agitator and the people sharing the call hold for the actions of people who create a disturbance of public order offline? Online calls are often formulated ambiguously and not explicitly related to proposed offline behavior. A final issue is the question of the extent to which governments should intervene with light sanctions to regulate the intermediaries in online calls. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
A fifth argument concerns fundamental rights. Online calls and behavior related to disturbances of public order and safety can always be argued to be protected by fundamental rights such as freedom of expression, articulated in both Article 7 of the Dutch Constitution and Article 10 of the European Convention on Human Rights (ECHR). Thus, when Dutch mayors intervene online with their administrative powers, their actions may restrict and infringe upon citizens’ freedom of expression. The core of the ECHR-restriction system is formed by a requirement that any restriction of a fundamental right has to be necessary in a democratic society. This means a consideration of interests. A restriction requires sufficient proper and relevant reasons, serving an urgent societal aim which should be heavier than the interest served by the freedom of expression. Subsidiarity is also important. In some cases (Article 17 ECHR), it is assumed that it is not possible to take claims based on freedom of expression – for instance, in the case of expressions with a racial or anti-Semitic character. Such expressions, based on national legislation, are criminal offences. Some cases of online expressions that could lead to disturbances of public order have racial roots. However, almost all of the examples in this study concern expressions that are legal and, often, apparently innocent.
Freedom of expression is also incorporated in the Dutch Constitution (Article 7). This old constitution, which has not been updated for modern times, refers to the revealing of feelings and thoughts by means of the printing press. Nowadays, all expressions based on a writing system are part of the scope of the freedom of the press, and such expressions as theatre, the burning of flags, and pictures are included. One important difference from the ECHR is that the receiving of information not is protected by Article 7 of the Constitution. Most importantly, Articles 7.1 and 7.3 of the Constitution state that freedom of expression exists according to the responsibility of all citizens according to the law. Law in this case is formal law, and delegation to local governments is not permitted by the Constitution. However, local governments have a strong interest (based on public order) in regulating such expressions as bill posting, flyers, public speeches, and so on. Thus, regulation is based not on the content of expressions but on their potential effects upon order in the public space. In the 20th century, Article 7 has been refined through jurisprudence by making a 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
distinction between the right to freely reveal feelings and thoughts and the right to spread those expressions. The right to freely spread expressions and feelings is not directly bound to the Constitution and formal law and can be debated locally, but with certain restrictions. To what extent does this power of regulation of the right to spread expressions create legal possibilities for locally regulating expressions on the internet? Based on concerned regulation, the possibilities are restricted. Certainly, the manner of the spreading is not the main factor in the disturbances of public order, but rather the content of the messages, which the Constitution strictly protects. However, there are indications that the boundaries between the legal review of content and the protection of the content of expressions has become/is becoming thinner in current administrative and legal practices.
4.4 Some legal reflections by practitioners Based on territory: ‘I think the cyber environment is more and more a public domain, in which a mayor has to intervene in case of disturbances of public order. The actual administrative instruments are not tailored to this form of disturbance of public order, because the internet does not stop at municipality borders, and that’s a serious problem’ 21
‘Of course the internet does not stop at municipality borders. However, for instance, both criminal motor clubs and drugs-dealing criminals also don’t stop at municipality borders. The age when we had our municipality and a mayor restricted to his own domain with a municipality border and a town guard at the city gate lies behind us in the Middle Ages, and with the internet the world becomes a whole lot bigger. However, if you want to intervene online, you have to deal with another domain than usual because it’s virtual not physical and restricted by fundamental rights – thus the mayor with administrative powers has no authority there.’22
21 R22. 22 R24. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
Based on fundamental rights: ‘Based on fundamental rights, it’s not the mayor’s task to intervene in messages or online calls spread by an organization or an individual; his task is restricted to public order and public order consequences. If one disagrees with a particular online call, one can go to a judge.’23
Based on outdated legislation: ‘The application of public order administrative law is really intended for the physical space and is not related to the virtual world. I see some interpretation space in the definition of public order, but the definite word is for the judge.’24
Another respondent is more critical: ‘I think that based on the formation of the legislation, where most of the Articles stem from the 19th Century, an application in cyberspace is impossible.’25
This respondent asks for changes in legislation: ‘I think the actual legislation has to be updated in the future to meet technological developments. That takes some time, we know, and is not fixed in 5 years. Also judges work from their own framework, which is often the traditional offline world. And then they say, this is insulting, that’s clear, we take the same approach as usual. Afterwards, they need to know which medium is used. Is a specific medium also responsible? I think most of the judges are too traditional and do not have this specific knowledge.’26
5. Mayors on the use of administrative powers to regulate disturbances of public order
The legal analysis has shown that there are problems with the preventive enforcement of public order using mayors’ administrative powers when the internet or social media is involved. In this section, the attitudes of the mayors themselves are the focus. Mayors and other practitioners are divided in their opinions about the role of mayors in cyberspace.
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Most of them acknowledge the legal problems related to the preventive and online use of administrative powers for maintaining or preserving public order and safety.
Here we describe some clusters of attitudes related to the roles of mayors in cyberspace. These clusters can be divided into three main principles: (1) creating case law, based on actual administrative powers, (2) mayors using non-legal means to secure and protect public order in their municipalities (and being cautious with administrative powers), (3) emphasizing the role of prosecution and criminal law and restricting the role of mayors.27
5.1 Creating case law One of the mayors28 wants to try to intervene online using his actual administrative powers to explore their reach; he believes this is possible. Firstly, he (like most of his fellow mayors) believes in the reach of his actual, non-legal instruments, which include talking to people, threatening interventions (even if bluffing, in fact), and contacting social media providers to request that particular posts be deleted. He thinks that his actual administrative powers are applicable in an online domain and is open to testing the extent to which that application is possible.
Other practitioners follow this line: ‘I often call for making more case law; we need new rules for the game’29 Or, more concretely: ‘Don’t make it too difficult, sometimes you have to show some courage to use some administrative powers for public order and safety to test the limits of the powers in a virtual or online domain. Take Project X Haren (see earlier), we can contact the person who announces a huge party on social media and tell him that he’s responsible for what can happen. And I think it’s possible to prohibit the online call with a preventive penal sum. I think the judge will support that intervention.’30
27 Some practitioners asked for new administrative powers for online application but are too vague and unfocused about what kind of powers they need. 28 R14 (not on tape – based on written summary of the interview. 29 R6. 30 R21. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
5.2 Using non-legal means/being cautious with interventions As mentioned already, most of the mayors believe in non-legal means of preserving and maintaining public order, including when instigation or escalation takes place online. For instance, because he believes that public order is a physical domain, one mayor comments: ‘Public order interventions are the domain of the mayor. When the public order is disturbed, one can intervene in the physical domain. But in the digital world, I don’t know. What you can use is the authority of the mayor by sending a police officer or a personal message from the mayor.’31
‘We don’t use interventions online. At most we use communication as an instrument to put our opinions and information against online messages. We also delete messages on the website of our municipality, but for some people it’s very serious when you delete their posts. When an online threat relates to public order and safety (physical) we send a police officer to talk. I also don’t believe in the deletion of online messages and calls. For instance we had a citizen who posted serious allegations on Facebook directed at our Counsellor. After an invitation to our town hall and a good conversation with cup of coffee, it ended’.32
The same mayor uses an example of a major event that occurs in his city every year: Some years ago there was a message on social media that someone was killed in a shooting in the city. The festive ambiance was also killed at that moment, and there was some chagrin, because news spread lightning-fast. Then we used a Monty Python–like message: ‘We hereby officially declare that nobody has been shot’. People reacted very quickly, and the ambiance was great again. ’ He also refers to precaution with communication in open online discussions : ‘Before you know it you are one of the claimants in an appalling abuse. I also choose deliberately not to use Twitter as a medium to communicate in my role as mayor. I
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see too many accidents with that medium. When you communicate in an emotional mood, it can come again at a later moment. I think an administrator has to keep some distance’.33
Another mayor is careful with online interventions: ‘Often online calls end quickly without implications for public order and safety. Let them call for a great event; most of the time nobody is coming. The internet is very unreliable.’34
One mayor refers to a fictive case involving an awkward social media influencer in his municipality: ‘In this case, I would have made a contra video message. By the way, I make a monthly video message for my citizens.’35
5.3 Emphasizing the role of prosecution and criminal law over that of mayoral intervention Because of legal objections and the roles of other parties in the field of safety, some mayors prefer a more passive role for mayors in cyberspace, in some instances because they worry that mayors will become more and more like crimefighters: ‘It’s not desirable that I, as a mayor, march as a sheriff in cyberspace to look what can be allowed and what’s not. No, I think mayors are too much pushed into the role of sheriff. However, we have other sheriffs, the police. One say, mayor intervene, mayor forbid, mayor do this, do that.’36
At the same time, mayors find it difficult (also based on legal arguments) to identify a specific role or pallet of interventions to regulate the internet and issues related to public order: ‘What can I do online? It’s the same as taking someone’s pen away while he is writing a letter. If someone is doing a penalty, it’s not my role to intervene. If I intervene online, it means that I, as a mayor, have to intervene in someone’s social media account or prohibit him to post a message? I’m not a judge, and I can’t delete online messages. It’s more the role
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of social media platforms such as Facebook and Twitter to intervene, and they do it more than in the past’.37
Additionally, the collaboration with other organizations with a role to safety (especially prosecution) is highlighted : ‘When there is a public order threat from a chatgroup and people agitate, I always will, when I take it seriously, collaborate with the administrative triangle (with prosecution, police, and the mayor represented) and think about solutions. At this moment the route of criminal law (prosecution) is the usual one. When it’s not criminal law, I need to intervene with other instruments – for instance by participating in an online discussion – because I have no legal instruments with which to intervene.’38
Another mayor adds: ‘The online world is so large that a mayor can’t restrict himself to local thinking, and collaboration with other stakeholders is crucial. I also think the national government has a role in collaboration with the local government and the police. The mayors also have a role in this collaboration.’39
6. Lessons learned
6.1 The application of administrative powers in an online domain It is sometimes argued that mayors have an important role to play in public order and safety cases that relate to the internet and social media (see Introduction). However, this paper shows that although the definition of public order is broad and open to an interpretation that allows for the use of mayors’ administrative powers to prevent disturbances to the public order that arise from the internet and social media, people still refer to the physical character of public order and to its legal history. Most of the public order legislation was established in the 19th century, and obviously the internet and other media, like television, did not exist at that time.
More seriously, there are legal obstacles to using mayors’ administrative powers online, as well as to using them offline to prevent an online escalation. In addition to the problem of
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the territorial restriction of mayors’ administrative powers to the municipality, establishing a direct relationship between online behavior and offline outcomes in terms of public order and safety is often problematic. Besides, many people share online calls, and the people who lead to public order and safety problems on the street are not necessarily the same people who call for an event or share and spread the announcement on a large scale. Fundamental rights are also important because most behavior on the internet qualifies as expression, and the freedom of expression is protected in both the Dutch Constitution and the European Convention on Human Rights. Taking all these considerations into account, it is probably too radical for Dutch mayors to use their administrative powers over public order and safety to regulate online behavior related to public order. The fact that those administrative powers are not designed for application in an online world is significant, especially when principles like subsidiarity and proportionality are taken into account. This conclusion may feel somewhat peculiar, because most of the time these cases involve the same local citizens whose behavior offline is strictly regulated when it relates to disturbances of the public order, while their online behavior is rather unregulated.
6.2 Views of practitioners/mayors In this paper a selection of citations is used to illustrate some views of mayors and practitioners regarding the role of mayors in cyberspace. Based on the analysis presented here, one can conclude that mayors are aware of the legal minefield in which they move when they use their administrative powers to prevent and regulate public order and safety issues with an internet or social media component.
Based on a mix of legal arguments and practical considerations (regarding capacity, knowledge, and territory), Dutch mayors are holding back from taking an active role in the regulation of public order by taking action online, especially when it concerns their legal administrative powers for the regulation of public order and safety. They often see other institutions, such as prosecution and the national government, as better suited to the regulation of online behavior, even local online behavior. However, the creating of case law 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
based on the actual administrative powers is mentioned, as is the taking of non-legal action. Regulation using non-legal means often relates to the use of communication and tactics to de-escalate ‘social media unrest’ or, for instance, a potential mobilization as a consequence of an online call for an event somewhere in a Dutch municipality.
6.3 Lessons learned This study shows a great tension between mayors’ administrative powers for the regulation of public order and safety, established in the late 19th century, and actual public order and safety issues that are increasingly related to the internet and social media. Although the definition of ‘public order and safety’ allows for a broad interpretation, there are serious legal obstacles to using administrative powers online or to prevent an online effect. Therefore, the proposed route of creating case law is probably not a sustainable one.
Another discussion arises about administrative law and criminal law. This study has shown mayors believe (based largely on legal arguments) that prosecution is a more logical route for regulating online behavior. However, most examples are based on online behavior, not on criminal law. At the same time, when the online issues involved transcend the municipality, it is more logical to regulate them at the national level. The benefit of administrative law is that it allows the speed required for an early intervention (prevention), whereas criminal law is often slower, reacting after the fact.
This paper has focused on the use of legal administrative powers to regulate public order and safety. It has shown that mayors make extensive use of their non-legal means by using their authority creatively to regulate public order and safety issues related to the internet – by, for instance, starting a dialogue with individuals engaged in online calls, using online communication, and making video messages to propagate a counter-message about what online behavior is acceptable normal and what is not.
The future will show whether the level of teamwork between prosecution (criminal law) and mayors’ administrative powers (administrative law) remains sufficient to regulate the digital components of public order and safety. It is difficult to think about online equivalents of 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
offline administrative powers. If the legislation were to be adjusted, it would probably be wise to develop new laws in which online behavior is regulated more directly, instead of adapting old and outdated legislation. At the moment, offline instruments must be used online to prevent public order incidents, and so the regulation is rather indirect, taking place through instruments designed for the offline, physical world. A more direct method of regulation (with online norms) would be a more fruitful path. However, the question of desirability and fundamental rights is persistent and obviously important. Debate about this question probably helps to increase awareness, and it stimulates the quest to discover innovative solutions that have the least possible impact upon fundamental rights and that take into account the legal principles of proportionality and subsidiarity.
4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
References