Today the Court of The Hague ruled in summary proceedings in the case initiated against the Dutch State by the Stichting Bescherming Burgerrechten (a civil rights foundation) and Lucas Kruijswijk regarding so called “stemfies”: photos of filled out ballot papers taken in the polling booth. The Court concluded that the stemfie is actually in violation with the secrecy of the vote. However, since there is no Dutch law explicitly prohibiting stemfies, the Court felt it had no other choice than to deny the claims.

According to the Court making photos of ballot papers in the polling booths: “refers to a highly important aspect of democracy. The interest of free elections, with an absolute secrecy of the ballot, is essential to effectuate democratic principles”. The State therefore has an “active duty to respect the secrecy of the ballot to its full extent.” According to the judgement, voters can feel pressured to show others what they voted for. Moreover, the Court rules that it is not imaginary that technological developments could bring even more risk to the secrecy of the ballot.

“Any advantages of the stemfie nor the aspect of freedom of speech, compensate for the serious objections to the stemfie. Every potential, not imaginary infringement of the secret ballot is extremely serious. Opposing or at least discouraging these infringements bears heavier weight, also in relation to the freedom of speech”.

However, the Court could not prohibit the making of photos of ballot papers in the polling booths because there is no law explicitly prohibiting these actions. Because of this, the statements of the Dutch minister could not be qualified as being unlawful. And “it is not to the courts to rule on whether it was wise of the minister to communicate that it is allowed to make photos of ballot papers in the polling booths”.

For now it seems that the making of photos of ballot papers in the polling booths will not be prohibited at the elections of May 22nd. However, after this judgement, it is clearly up to the legislator to make sure that the secrecy of the ballot will be guaranteed in future. We congratulate the Stichting and Lucas Kruijswijk on putting this important discussion on the political agenda.

See the full judgment here (Dutch only).

Douwe Linders