Belgium

 CountryType of Law 
 
 

Criminal Defamation

Defamation remains a criminal offence in Belgium.

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

Slander (calomnie/laster) consists of pubicly and maliciously making a precise, unproven accusation regarding another person that may damage that persons’s honour or expose him or her to public contempt. The punishment for slander is imprisonment from eight days to one year or a fine of between €26 and €200 (Art. 444).

In certain cases described by law in which proof of truth is not possible or is not allowed, slander is known as defamation (diffamation/eerroof).

Insult (injure) is punishable with a fine of eight days to two months in prison and/or a fine of €26 to €500 (Art. 448). 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.

Finally,  even if the defendant proves the truth of a slanderous accusation, “if it is established that [he] made the assertion without any public or private motive but with the sole aim of causing harm” then the defendant will be considered guilty of malicious disclosure (divulgation méchante), punishable with between eight days and two months in prison and/or a fine of €26 to €400 (Art. 449).

The minimum punishment for the offences above can be doubled if motivated by “hate, contempt, or hostility” toward another person on account or race, skin colour, national or ethnic origin, nationality, sex, sexual orientation, civil status, age, wealth, religious or philosophic conviction, state of health, disability, language, political conviction, union membership, or physical or genetic characteristic.

 

Criminal Defamation of Public Officials

Provisions on the books.

The  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.

However, public officials in Belgium are protected by criminal laws prohibiting outrage (grave insult) toward authorities. Under Art. 275 of the , outrage toward a member of the 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, is punishable with between 15 days and six months in prison and 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.

Art. 276 of the Criminal Code punishes outrage toward a public official or an agent of public authority or any person having a public character with imprisonment of eight days to one month and a fine of €26 to €200.

 

Criminal Defamation of the Head of State

Provisions on the books.

Offence toward the monarch and the royal family (lèse-majesté) remains a criminal offence in Belgium under .

Art. 1 of the law punishes offence 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 of 300 to 3,000 Belgian francs (€7.44 to €74.37, according to fixed conversion rate). Similar offence toward other members of the royal family is punishable with imprisonment of three months to two years and a fine of 100 to 2,000 Belgian francs (€2.48 to €49.58). In addition, those convicted of lèse-majesté may be stripped of the civil rights enumerated in Art. 42 (now Art. 31) of the , including the right to hold public office.

 

Criminal Defamation of the State and its Symbols

Provisions on the books.

Criminal prosecutions for slander and defamation directed at constitutional bodies (e.g. Federal Parliament) are explicitly permitted by Art. 446 of the , subject to the same conditions as defamation against individuals. These bodies are also protected by outrage laws (Art. 277).

As far as insult toward the State, the 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 of €500 to €1,000.

 

Criminal Defamation of Foreign States and Symbols

Provisions on the books.

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

However, there remain contempt provisions regarding foreign diplomats in the .

 

Criminal Defamation of the Deceased

Provisions on the books.

Art. 450 of the  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 punishes contempt toward the “objects” of a religion with between 15 days and six months in prison or a fine of between €26 and €500. This article only applies when the act of contempt is performed in a place of worship or during a public ceremony of a religious group. Contempt toward a religious minister during his ministry is punishable in the same manner (Art. 145).

 

Other Relevant Criminal Offences

Obscene Libel

Offence to modesty, committed without violence or threats, is punishable with between one month and two years in prison and a fine from €251 to €10,000 (Belgian Criminal Code Art. 327).

In addition, the exposition or distribution of writings offensive to good morals (contraires aux bonnes moeurs) is punishable with between eight days and six months in prison and a fine of €26 to €500 (Criminal Code Art. 383).

 

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 Application

According to official statistics from Belgium’s Criminal Policy Service, in 2013 there were:

21 criminal  for calumny or defamation (Art. 444)
21 criminal convictions for insult (Art. 448)
0 criminal convictions for malicious disclosure. (Art. 449)

Historical statistics suggest that figures have broadly remained constant since the year 2000.

 

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 on defamation laws in Europe was collected by the International Press Institute (IPI) in collaboration with the School of Public Policy’s Center for Media, Data and Society at Central European University in Budapest and their partners at the SHARE Foundation in Belgrade. (Read more about our partners here.)

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 ipi[at]freemedia.at.

Information on Finland was last updated in January 2015.

 

Belgian Criminal Code (French: Code penal/Dutch: Strafwetboek).
Act of July 20, 1831 on the Press, available in French and Dutch.
Belgian Criminal Code (French: Code penal/Dutch: Strafwetboek).
Belgian Criminal Code (French: Code penal/Dutch: Strafwetboek).
Belgian Criminal Code (French: Code penal/Dutch: Strafwetboek).
Royal Decree of July 19, 1926 on the creditworthiness of the State (French: Arrêté royal déterminant les mesures destinées à réprimer les avis ou informations de nature à ébranler le crédit de l’Etat/Dutch: Koninklijk besluit houdende maatregelen bestemd om de berichten of tijdingen, die uiteraard ’s Lands krediet kunnen ondermijnen, te beteugelen), available via official government translation into German.
Belgian Criminal Code (French: Code penal/Dutch: Strafwetboek).
Belgian Criminal Code (French: Code penal/Dutch: Strafwetboek).
Note: Of these 21 convictions, 17 are classified as slander committed in public places (Art. 444, par. 2); 2 as slander via writings or images made public (Art. 444, par. 5); and 2 as slander via writings addressed to multiple persons (Art. 444, par. 6).
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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