Belgium

 CountryType of Law 
 
 

Criminal Defamation

Defamation remains a criminal offence in Belgium.

There are two main defamation-related offences in the Belgian Criminal Code : slander and insult.

Slander/defamation (Criminal Code Art. 443) consists of “maliciously imputing to another person a precise fact that may damage that person’s honour or expose him/her to public contempt”. This act is described as “slander” in cases in which the law admits proof of the act but such proof is not provided. It is described as “defamation” in cases in which the law does not admit proof of the act.

The penalty for the act under Art. 443 is imprisonment from eight days to one year and a fine of €26 to €200 if the act is committed in meetings or public places; in the presence of several individuals in a place that is not public but is open to a certain number of people; in any place in the presence of the offended person and in front of witnesses; through writings or images distributed or communicated publicly or addressed to several persons (Criminal Code Art. 444).

Insult (Criminal Code Art. 448) against a person through acts, writings, images or emblems, committed with publicity according to Criminal Code Art. 444, carries a penalty of imprisonment for a term of eight days to two months and/or a fine of €26 to €500. The term “insult” is not defined in statute, but, in general, is constituted by an imprecise accusation that may damage a person’s honour. In practice, insult also requires an element of malice.

It should be noted that, under Criminal Code Art. 449, if the proof of an accusation in question is established but it is concluded that the offender “made the accusation without any motive of public or private interest but with the sole aim of causing harm”, the offender shall be guilty of malicious disclosure. The penalty in this case is eight days to two months in prison and/or a fine or €26 to €400.

Note that the minimum punishment for slander, defamation and insult can be doubled if motivated by hate, contempt or hostility against persons due to their supposed race, skin colour, heritage, national or ethnic origin, birth, age, fortune, religious or philosophical conviction, present or future state of health, disability, language, political conviction, union conviction, physical or genetic characteristic or social origin (Criminal Code Art. 453bis).

 

Criminal Defamation of Public Officials

Criminal Code Art. 275 provides criminal liability for insult (outrage/smaad) directed at a member of legislative chambers, a government minister, a member of the Constitutional Court or other judicial office, an active-duty police officer, all with respect to official function. The penalty is 15 days to six months in prison or a fine of €50 to €300. The punishment is elevated to imprisonment of two months to two years, or a fine of €200 to €1,000 if the act occurs during a sitting of the Chamber or during court.

Criminal Code Art. 276 provides liability for insult directed at a public officials. The penalty is a imprisonment from eight days to one month and a fine of €26 to €200.

Insult against juries and witnesses in relation to their function is an offence under Criminal Code Art. 282. The penalties under Art. 275 apply.

According to Art. 277, insult against “constitutional bodies” shall be punished in the same manner as insult committed against members of those bodies.

However, it should be noted that these provisions (Arts. 275 to 277, 282) apply to words, threats and gestures, etc., directed at public officials in their physical presence and in the course of performing their public function (and not, for example, to media content).

The Act of 20 July 1831 on the Press states that slander or insult committed against public officials is subject to the same provisions as regarding private individuals, subject to a few exceptions, most notably that while criminal proceedings for slander and insult can normally only be prosecuted upon request, in the case of the king, the royal family, or public authorities with respect to their official function, prosecution may be conducted ex officio.

Criminal Defamation of the Head of State

Offence toward the monarch and the royal family (lèse-majesté) remains a criminal offence in Belgium under Law of 6 April 1847 on Offence toward the King .

Art. 1 punishes insult toward the King by any means, including writings or images sold or distributed in public with imprisonment from six months to three years and a fine .

Art. 2 punishes insult toward other members of the royal family with imprisonment from three months to two years and a fine .

In addition, those convicted of lèse-majesté may be stripped of certain political rights according to the Belgian Criminal Code.

 

Criminal Defamation of the State and its Symbols

Criminal prosecutions for slander and defamation directed at “constitutional bodies” (corps constitué) are explicitly permitted by Art. 446 of the Belgian Criminal Code, subject to the same conditions as defamation against individuals.

Art. 277 of the Criminal Code also foresees criminal liability for insult against constitutional bodies, punished under the same terms as insult of public officials in their physical presence (see under “Criminal defamation of public officials”).

Regarding insult of the State, the Royal Decree of 19 July 1926 states that whoever knowingly and intentionally publishes a report that may negatively affect the creditworthiness of the State will be punished with imprisonment from three months to two years and a fine.

 

Criminal Defamation of Foreign Heads of State

The Law of 12 March 1858 on Crimes against International Relations contains a provision on insulting accredited foreign diplomats through actions, writings, images or symbols. The penalty is imprisonment from two months to 18 months and a fine.

A law prohibiting insult toward foreign heads of state was abolished in 2005 .

Criminal Defamation of Foreign States and Symbols

No provisions.

 

Criminal Defamation of the Deceased

No provisions.

Art. 450 of the Criminal Code states that spouses or descendants (up to and including the third degree) may file criminal defamation charges on behalf of a deceased person.

 

Criminal Blasphemy

Art. 144 of the Criminal Code provides criminal liability for insult through “actions, words, gestures or threats” of the objects of a religion “whether in places destined for or habitually used for the exercise thereof, or in public ceremonies of this religion”. The penalty is imprisonment for 15 days to six months and a fine of €50 to €500.

Under Art. 145, similar insult against the minister of a religion, in the exercise of his ministry, shall be punished with imprisonment for two months to two years and a fine of €50 to €500.

 

Criminal Procedure

For private citizens, slander and insult or normally may normally only be prosecuted on request (Art. 450). In the case of the king, the royal family, or representatives of public authority, prosecution may be conducted ex officio. Contempt toward a member of the Chamber of Deputies can normally only be prosecuted upon request except in “flagrant” cases (Art. 275).

Criminal prosecutions against the press for slander or defamation are extremely rare in Belgium. This is due in large part to a constitutional requirement that alleged criminal offences committed by or through the press (press offences) can only be heard by a Court of Assize, a jury-based tribunal that is reserved for serious felonies. The only exception to this is defamation that is motivated by racism of xenophobia; such cases may be heard by a judge in a criminal court. Prosecutors have historically been reluctant to try press offences due to the lengthy, costly, and highly publicised proceedings associated with a Court of Assize and, as such, it has been suggested that the press enjoys effective immunity from criminal defamation. Notably, the category of press offences does not currently included offences committed via audiovisual media.

 

Statistics on Criminal Law Application

As regards the broader application of the criminal provisions noted above, according to official statistics from Belgium’s Criminal Policy Service , for the year 2015, the most recent year for which statistics are available, there were:

• 21 convictions for insult (Criminal Code Art. 448), none of which were for insult “in meetings or public places”.
• 35 convictions for defamation (Criminal Code Art. 444), of which: 31 were for defamation in “meetings or public places”; one for defamation “in a non-public place in the presence of other persons”; and three for defamation “in any place in front of the offended persons at witnesses”
• One conviction for malicious disclosure (Criminal Code Art. 449)
• 15 convictions for insult under Criminal Code Art. 275
• 524 convictions for insult under Criminal Code Art. 276

Since 1995, there have been only two convictions for defamation directed against constitutional bodies (Criminal Code Art. 446). Additionally, since 1995 there have been only five convictions for insult against constitutional bodies (Criminal Code Art. 277). Arts. 275/276 are applied most often in cases of insult against police officers, particularly while the offender is being arrested.

Historical statistics suggest that figures for insult and defamation have remained broadly constant over the past 20 years.

 

Selected Criminal Cases Involving Media

Criminal press offences in Belgium can only be heard by a Court of Assize, a jury-based tribunal that is reserved for serious felonies. Du to cost, length and publicity concerns, press proceedings before the Court of Assize are extremely rare (the last such proceeding is believed to have taken place more than 70 years ago). As a result, the media enjoy a de facto exemption from criminal defamation laws, including lèse-majesté. In practice, virtually all defamation cases brought against the media are handled in civil court (under the tort rules of Arts. 1382 to 1384 of the Civil Code).

 

Civil Defamation

Belgium does not have specific civil defamation law. Defamation can be redressed as a tort under the The relevant articles are 1382 and 1383, which specify that “any person who causes damage to another is obligated to repair that damage”, including when caused through negligence or imprudence.

Damages

There are no caps on non-pecuniary damages for defamation in Belgian law.

There are no specific limits to pecuniary and non-pecuniary damages. However, in practice damages are often only symbolic—in some cases, just €1 has been awarded. Courts can also require the judgment to be published in the media.

Defences

There are no specific civil provisions related to defamation, and civil cases involve a weighing of the right to free expression and the right to private life and reputation. In this, according to Belgian experts consulted by IPI, Belgian courts normally follows the spirit of the European Court of Human Rights. Belgian courts generally distinguish between factual allegations and value judgments. For the former, journalists are normally protected from damages provided they have fulfilled their journalistic duty to check the veractiy of the allegation, even if the allegation later turns out to be false. This is particularly the case when the allegation in question concerns a public figure or a matter of public interest. The latter are granted a much wider berth by the courts, usually as long as there is some basis in fact and the opinion is not considered excessive under the circumstances.

Media Liability

For defamation cases, the principle of “waterfall” responsibility applies, meaning that the journalist is solely responsible for the damage unless his or her identity is not known, in which case responsibility passes to the publisher, printer, and distributer, in that order.

 

Media Cases and Case Law

Relevant case law

The Belgian Court of Cassation (Cour de cassation/Hof van Cassatie) has confirmed that the guarantees under Article 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights, apply to cases brought under §1382 of the Civil Code.

For example, in 2005, the Antwerp Appeals Court ruled that the authors of a critical book about Johan Demol, a former Belgian police commissioner and leading member of the Fleminst Nationalist Party Vlaams Belang, had unlawfully defamed Demol through “unfounded accusations and insinuations”. The Court ordered its judgment to be published in the newspaper De Morgen, although it rejected Demol’s demand of €250,000 in moral damages. According to the Appeals Court, the authors, Ron Herman and Eric Goeman, “had manifestly crossed the line”, asserting: “ Public interest does not justify defamation.”

The decision was criticised by judicial observers for its “autonomous application” of §1382 without any regard to the case law of the European Court of Human Rights or Article 10 (the Appeals Court that freedom of expression “did not stand in the way” of the application of civil defamation provisions).

In 2007, the Court of Cassation the ruling, explicitly relying on Article 10 and emphasising, following the European Court of Human Rights, that any restriction or sanction involving freedom of expression must be “necessary in a democratic society”. The Court of Cassation specified: “The restriction of free expression is necessary in a democratic society only in response to a pressing social need on the condition that proportionality be respected between the means used and the aim pursued and that the restriction be justified by pertinent and sufficient reasons.”

Quoting the Appeals Court’s assertion that public interest did not justify defamation, the Court of Cassation found in this case that the Antwerp Appeals Court had “punished the authors’ opinions … without showing that the restriction imposed responded to a social need or that proportionality was respected between the means used and the objective intended”.

Recent examples of cases involving the media

In 2013, Yves Desmet, editor of daily De Morgen, was to pay €1 in symbolic damages for libel to Ingrid Schoeters, the wife of Antwerp’s prosecutor-general. The case related to an opinion column Desmet had written on an ongoing investigation into tax evasion in the diamond industry. According to reports, the judge presiding over the investigation had wanted to prosecute the case, but the prosecutor, Yves Liégeois, was instead pressing for a settlement between the suspects and the tax authorities. In the column, Desmet accused the prosecutor of being disinclined to pursue white-collar criminals, writing: “You could say there seems to have been partiality. Or, if the term were not outmoded, class justice pure and simple.” Despite not being mentioned in the column, Schoeters sued and demanded €19,000 in damages, alleging that the column had caused “irreperable damage” that the column had allegedly caused her and her family. The judge in the libel suit agreed, ruling that the suggestion of partiality and the use of the term “class justice” were “based on a personal perception” and were “serious expressions” that had no basis in fact. The judge thus found that the opinion column was “wrong from the point of view of objective reporting.” However, the judge awarded only €1 in damages. Desmet was ordered to pay Schoeter’s legal costs, totaling €1,496 and well as his own legal costs, totaling €1,210. Desmet is reportedly appealing.

In 2013, a court in Leuven found in favour of a journalist in a libel suit brought by a former senator and then-candidate for mayor of Bruges. The journalist, Jan Antonissen of HUMO magazine, had reported that the candidate, Pol Van Den Driessche, had a history of committing acts of sexual harassment. The story was titled “DSK in Flanders”, a reference to disgraced French politician Dominique Strauss-Kahn. The court reportedly ruled that “when a journalist is convinced of the fact that a public figure is guilty of sexual harassment he has the right to inform the public about this” and that “the journalist was not wrong to find the allegations to be of public importance or to ask the question of whether someone exhibiting this behaviour can be mayor”. On the question of journalistic duty, the court stated that the journalist should be allowed to assume that the witnesses on whom he based his story “were sufficiently credible and that the overall picture that emerged from the various testimonies corresponded with reality.” The court also reportedly that although the title was “provocative” but did not overstep any limits on free expression. Van Den Driessche was ordered to pay legal costs for Antonissen of approximately €11,000.

In 2012, a Belgian court brought against filmmaker Thierry Michael by John Numbi, former inspector general of the Democratic Republic of the Congo National Police. Numbi had sought to ban posters for Michael’s film The Chebeya Scandal: A State Crime?, which investigated the murder of Congolese human-rights activist Floribert Chebeya following a meeting Chebeya had with Numbi. According to the Congolese press-freedom group Journalistes en danger, the court found that the poster presented an “appropriate balance between, on the one hand, the implication of a public authority and their impunity, and other hand, the unanswered questions in this regard”.

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The Belgian courts are also seen as overly generous in granting emergency (last-minute) injunctions against the publication of allegedly defamatory material. In a well-known case from 2001, the broadcaster RTBF was blocked from reporting on alleged errors by a doctor hours before transmission after the doctor filed an urgent injunction citing the need to protect his reputation pending the outcome of broader proceedings against RTBF. The judge who issued the injunction apparently had not even seen the transmission in question. Although RTBF was eventually allowed to show the segment four months later, the Belgian courts (including appeals courts) in part based their decision on a constitutional separation between the written press (explicitly protected from prior restraint in the Belgian Constitution) on the one hand and audiovisual media on the other. In 2011, the European Court of Human Rights that Belgian law did not provided no consistent or clear foundation for  such injunctions and, accordingly, that the injunction against RTBF constituted a violation of Article 10.

Despite this ruling, on April 8, 2014, another broadcaster, the Flemish station VTF, was served with a last-minute injunction blocking transmission episode of its programme “Telefacts” that was to report on a judge accused of extortion and possible corruption. The ruling that the station would be fined €200,000 if it broadcasted in defiance of the injunction. VTF eventually was allowed by the courts to broadcast the episode on April 29. “All it had to do,” one commentator (sardonically), was hie lawyers and initiate a court procedure”. The April 29 ruling reportedly continued to leave the door open for prior censorship.

 

Recent Legal Changes

No relevant known changes.

 

Notes and Acknowledgements

Information for Austria was originally collected by IPI as part of the “Out of Balance” report, published in January 2015 with support from the European Commission and incorporating research contributed by Center for Media, Data and Society at Central European University in Budapest and by the SHARE Foundation in Belgrade. This entry was later expanded and updated by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). Last update: March 2017.

The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.

Belgian Civil Code, Law of March 21, 1804. Available in Dutch and French.
Dirk Voorhoof, “Johan Demol krijgt gelijk voor Hof van beroep Antwerpen”,  De Juristenkrant 2005/116, 13.
Court of cassation, Arrêt N° C.06.0123.N, 27 avril 2007.
Mechelen Court of First Instance, A.R.nr. 12/694/A.
Rechtbank laat ruimte aan gefundeerde kritiek op publiek personen”, 22 May 2013, official webpage of Dirk Voorhoof, Universiteit Gent.
RTBF v. Belgium, 50084/06, ECHR 2011.
VVJ steunt VTM-Telefacts in verzet tegen gerechtelijke censuur”, Flemish Journalists Association, 9 Apr. 2014.
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