Caribbean Review: Curaçao Scandal Exposes Weaknesses in Digital Governance
Social media, when used as a tool of the government, toes the fine line between formal government policy and informal outreach and communication. When ministers, employees and leaders use social media to communicate new laws to constituents, the legality and security of their posts are immediately called into question. This is the case in Curacao, as social media was used as a tool by a high-ranking official to communicate a new department-wide directive yet, it puts companies, banks and citizens in a position to rely on government leaders’ Facebook pages to be informed about government policy. The ongoing legal battle within the Kingdom of the Netherlands explores the legality of using social media as a platform for official government communication.
The Scandal
In March, the Attorney General of the Netherlands, Jos Silvis, advised the Dutch Supreme Court to overturn a ruling made within the Kingdom of the Netherlands by the Joint Court of Justice of Aruba, Curaçao, Sint Maarten, and the Caribbean Netherlands. The ruling was regarding a dispute in 2013 when a Curaçao tax inspector implemented a government-mandated corporate tax assessment on a bank. The bank argued that the subsidiary to which the tax assessment targeted, qualified for a tax exemption law which would nullify the tax inspector’s actions. As the bank filed a subsequent lawsuit to protect its subsidiary, the Court of First Instance in the Dutch Caribbean ruled in favor of the tax inspector, setting off a legal fight and an appeal from the bank.
During the appeal process, Minister of Finance, Javier Silvania, posted on his personal Facebook page that all tax assessments before 2017 would be canceled which he later took back. Yet, the bank used these statements as legal basis for their claims that the tax assessment should be voided since Silvania had directed the Ministry himself. The Joint Court yielded and overturned the ruling by the Court of First Instance, ruling that the taxes could no longer be mandated by the state and rejected the bank’s appeal, deeming it an unnecessary action.
Attorney General Teases Legal Fight
The Attorney General in his capacity as advisor to the Dutch Supreme Court, immediately flagged this action as an illegal and misguided ruling, advising the Supreme Court to take the case and overturn the Joint Court. Silvis argues that the Joint Court’s overturning based on the sentiments expressed in privately made Facebook posts sets a dangerous precedent and blurs the line between official government policy and informal communication in the vein of social media. Besides the informality of the Minister of Finance’s Facebook posts, the Attorney General points to their illegality as interpretations of government policy. The fact that many Curaçaoans should not be forced to rely on a private platform such as Facebook to find the latest updates on tax information and messages produced by the Minister of Finance. All reasons for the Joint Court’s to be voided and to avoid the dangerous precedent of allowing social media to be used as a tool of official governance.
While the appeal has been rejected in the Joint Court, the Attorney General’s advice to the Dutch Supreme Court spurs a larger question within the space of governments around the world especially with the rise of AI: What is Social Media’s role in communicating official government policy and is it appropriate to be used to make policy?
Social Media’s Role in Governance
Many government entities, departments and agencies already operate their own social media accounts that include government leaders and political parties. However, these entities all use social media as another communication platform to inform citizens of changing policies, new initiatives or other general announcements but never as a forum for making policy; a power reserved for a lawmaking body.
Experts like Filipe Campante, a Distinguished Professor at Johns Hopkins University, say that many city governments, for example, use social media as a tool to connect their work to constituents in an informational manner. Campante, speaking at a Bloomberg Philanthropies City Data Alliance Conference, echoes that, “[cities] use [social media] to post things, to get interaction, to really foster participation and deliver services.” With over five billion of the world’s population online, social media is a platform that has the farthest reach of any medium and is a premier tool for engaging with citizens in urban and rural areas, erasing societal friction.
It is not that government officials like the Minister of Finance should be restricted from using social media but in fact that they should be encouraged to do so but only under their official accounts when posting official government information. The Attorney General’s argument to the Dutch Supreme Court is based on the principle that public officials should not share information entitled to the public exclusively on private channels. If the main reason is that official government entities like the Ministry of Finance, utilize social media to promote their services to inaccessible populations in Curacao, then sharing that information in a private setting should be deemed as a failure of service. Simultaneously, making decrees from an official position of authority on a private channel, a personal Facebook page, is argued by the Attorney General as an illegal use of power that should be deemed as such.
The Dutch Non-Plan?
While Curacao is a semi-autonomous island of the Kingdom of the Netherlands, policies like defense and border security are controlled by the Netherlands in the structure of the Constitution. According to the European Union’s national policies webpage, the Dutch government currently lacks a national strategy for media literacy or the safe use of new media. Instead, the Netherlands takes an education-first approach to educating youth about the importance of media literacy and basic cybersecurity skills like password or data protection. This youth-focused approach that excludes a social media-specific plan is the closest initiative that the Netherlands conducts to educate the next generation of professionals yet, the current generation of professionals lacks a comprehensive plan. It begs the question: Is the Minister of Finance a bad apple or a representation of a much wider issue?
International guidelines on digital governance including the OECD Digital Government Policy Framework prioritize a whole-of-government approach to producing a digital governance strategy that is simultaneously open and accessible by the public but also secure. According to the OECD, “using digital tools and data to simplify processes, increase transparency and convenience in public interactions, and improve efficiency,” is the best way to revolutionize the role of government and improve public trust. While the Minister of Finance’s action was not considered a threat to national security, it begs a legal fight and a rethinking of Curacao’s commitment to cybersecurity and training in order to avoid a future action of self-sabotage.
Organized by the Caribbean organization CARICOM IMPACS, a cybersecurity training hosted by the Thales Institute brought together regional CSIRTs and law enforcement agencies dedicated to strengthening the region’s defenses. Not attended by Curaçao, the meeting focused on a host of priorities but most importantly, “understanding the cyber threat landscape and the impact of cyber crises on organizations and societies.” In a slight instance, governmental security could have been put at risk by the Minister of Finance’s ill-advised decision. A personal Facebook page that is private and unverifiable exposes the government to cyber threats and misinformation that opposes the government’s interest and puts the public at risk.
As the Dutch Supreme Court still decides on whether to bring this case to their docket, the point is clear: the precedent of the Joint Court threatens societal chaos and promotes unpredictable governance. Social Media is a powerful tool with enormous influence that can enhance governmental power but it should be harnessed with a national strategy on its usage. The Attorney General’s advice should be heeded by the Supreme Court to quell a dangerous and untamed use of social media.
