Partner - Timelex
Defamation, Privacy and Data Protection
Contributor: Frederic Debusseré (Partner, Timelex)
The fundamental right to freedom of expression, as protected by Article 10 of the European Convention on Human Rights (ECHR) and Article 11 of the Charter of Fundamental Rights of the European Union, is embedded in the Belgian Constitution in two separate provisions. First, Article 19 of the Belgian Constitution safeguards the freedom of expressing one’s opinion. Second, Article 25 of the Belgian Constitution explicitly protects the freedom of the written press and prohibits censorship of it. An extra protection to the freedom of expression under Belgian law is the Act of 7 April 2005 on the protection of journalistic sources. In 2006 the Constitutional Court broadened the scope of application of this Act to also include “everyone who delivers a direct contribution to collecting, producing, editing and distributing information to the public via a medium”. Hence, also freelancers and regular “bloggers” are now protected under that Act.
Freedom of expression is protected broadly under Belgian law, but there are nevertheless several limitations possible to the exercise of the right. A distinction should be made between, on the one hand, pre-emptive limitations and, on the other hand, repressive measures that follow from criminal and civil law.
Pursuant to Article 25 of the Belgian Constitution, which prohibits censorship, State measures, such as court judgements, that prevent people from exercising their freedom of expression are prohibited.
If a claimant wishes to request a pre-emptive injunction to prevent publication of a book or other work, they could consider initiating interim injunction proceedings (summary proceedings). In such cases, the president of the court can impose temporary measures if the claimant proves that such measures are urgent and necessary to safeguard their rights or interests, such as the right to privacy and reputation. In principle, such procedures are based on a debate between both parties. However, in cases of absolute necessity, for instance if there is no time for the claimant to serve a writ of summons to someone, a court can decide following an ex parte application of the claimant (which the defendant can appeal afterwards).
However, following a judgement of the Supreme Court in 2000, the majority of case law only allows an injunction preventing distribution when a publication has already been released or offered for sale, and when a sufficiently wide distribution has already taken place. When this is not the case, a preventive measure can be considered censorship and courts thus have to refuse it. Until 2011 there was still a lack of clarity as to whether the rule on censorship also applied to audio-visual publications, since Article 25 of the Constitution only refers to the written press. This was, however, clarified by the European Court of Human Rights in 2011, which held that Belgian law lacks a legal basis and consistent case-law to impose a broadcast ban (ECtHR, RTBF v. Belgium, 29 March 2011).
Notwithstanding the majority of case law, there are some known exceptions where courts allowed censorship without the publication having been distributed. There are, for example, some judgments in which the prohibition was not applied with regard to publications that merely reflect facts or information rather than opinions, or when the rights or interests of others were deemed to be more important.
Other Pre-emptive Measures
Nevertheless, there is case law where other preventative measures, such as an obligatory notice before broadcasting a television program or an informative banner attached to a written publication, have been obtained through an interim injunction procedure.
In Belgium, there are several forms of expression which are deemed non-acceptable in society and therefore punishable under criminal law. However, as provided for by Article 19 of the Belgian Constitution, these restrictions to the freedom of expression must have a legal basis. Furthermore, as a result of the direct application of Article 10 of the ECHR, the restriction has to be necessary in a democratic society and proportional.
An expression qualifies as defamation when:
Prosecutions for defamation can be prosecuted only upon a complaint filed by the victim of the offence, or, when the victim has deceased, his or her spouse, children or legal successor to the third degree. The person being prosecuted for defamation cannot argue as a defence that the expressions are a mere reproduction of already existing publications. Making defamatory statements public or even distributing them amongst several persons can be punished with imprisonment up to one year and fines up to 4000 EUR (Articles 443 ff. of the Criminal Code).
Other examples of criminalized expressions are set out in the Criminal Code and include:
Furthermore, some expressions are qualified as criminal offences through special laws, such as:
Additionally, some breaches to the right to privacy are criminalized under Belgian law. For example, processing personal data without a legal basis set out in Article 6 GDPR, and a processing which, as a result of a grave omission or malicious intent, does not respect the core principles of processing personal data set out in Article 5 GDPR are punishable with penal fines of up to 80 000 EUR (see Articles 222 ff. Belgian GDPR implementation Act).
It must be stressed, however, that Belgium, acting on the possibility under Article 85 GDPR to provide exemptions or derogations for processing carried out for journalistic purposes, almost completely exempted the applicability of the GDPR to processing personal data for journalistic purposes. As a result, the provisions on (children’s) consent, special categories of personal data and personal data on criminal convictions and offences do not apply (Article 24 Belgian GDPR Implementation Act).
Procedurally, the nature of the expression will determine which criminal court is competent for adjudicating the crime. When an offence is a so-called “press offence”, the author will be prosecuted by a jury at the Court of Assizes. The elements that need to be present in order for an offence to qualify as a press offence are an (1) unlawful (2) opinion, (3) made public by means of (4) the written press. However, exempted from this rule are racism and xenophobia, publishing- and printing offences and all other unlawful expressions which do not fall under the limited definition of a press offence, such as pictures or drawings. These offences are prosecuted before the Correctional Court without a jury. It should be noted, however, due to the burdensome nature of a jury trial, there has not been any prosecution of a press offence by a jury at the Court of Assizes since the Second World War, which thus leads to a de facto criminal immunity for press offences falling under the definition.
The Belgian Constitution provides for the additional rule of layered liability when there is a press offence (Article 25). This rule entails that, if the author of an unlawful opinion is known, the publisher, the printer and the distributor cannot be prosecuted. When the author is not known, the publisher can be prosecuted. If the latter is also unknown, the printer can be prosecuted. If even the latter is unknown, the distributor can be prosecuted. For a long time, there was a dichotomy in Belgian case law on whether this principle could also be applied in civil cases. The Supreme Court, however, has answered this question affirmatively, leading to several lower courts also applying the rule in civil cases. Nevertheless, the application of the concept to expressions made through non-printed press, such as radio, tv and digital publications, is still contested.
The victim of one of the aforementioned criminal offences can file a complaint with the police, following which the public prosecutor decides to prosecute or dismiss the case. Another possibility is filing a civil complaint with the investigating judge, i.e. a magistrate who performs a pre-trial investigation of the alleged offence. Upon receipt of a civil complaint, the investigating judge is obliged to carry out a judicial investigation and, once completed, to send it to the Council Chamber. The latter is a pre-trial court that decides to refer the case to the competent criminal court or to dismiss the case. Once an offence is already being prosecuted, a victim can still file an action for damages before the criminal court, which will then decide both on the criminal and civil aspects of the case. After a criminal court has already given judgement on the criminal aspects of a case, a victim who is not involved in the legal proceedings is still able to claim damages before that same court.
Under Civil Law
Besides limitations to the freedom of expression in the form of criminal sanctions, there are also boundaries to exercising the right to freedom of expression under civil law. In most cases, obtaining a civil recourse for unlawful publications proves to be useful, keeping in mind the de facto criminal immunity for press offences.
First, there are the rules on fault-based liability (Articles 1382 and 1382 of the Belgian Civil Code) which can be invoked against the author, publisher, printer or distributor of a certain expression. The plaintiff must prove:
1) A misconduct or negligence;
2) Material or moral loss and;
3) A causal link between the misconduct and the loss
In order to determine whether there is a misconduct, a court can suffice by finding that there is a breach of one of the criminal provisions mentioned above, creating a “quasi-criminal liability”. Furthermore, the misconduct can be determined on the basis of the criterion of the “reasonably cautious journalist”. In various cases sanctions have been imposed as a result of the publication of incautious and incorrect accusations, unnecessarily harmful wording or breaches of the right to privacy.
When adjudicating cases of unlawful exercises of the right to the freedom of expression, courts will inevitably take into account the aforementioned constitutional provisions and the conditions of Article 10 ECHR.
Procedurally, the unlawfulness of a publication can be established in civil law courts, which can subsequently impose damages and/or a cease-and-desist order on the author, publisher, the printing house or the distributor.
The statute of limitations of civil claims for damages is 5 years after the acknowledgement of the loss and the identity of the person or organisation causing the loss and in any case after 20 years after the event giving rise to the damage (Article 2262bis Civil Code).
When provisional measures are required, the claimant can request the court that will rule on the merits for an interim judgment that imposes provisional measures, such as an obligatory information notice or a ban to spread the publication any further. Another possibility is initiating interim injunction proceedings, requesting the president of the court to impose interim measures. In such proceedings, the claimant has to show urgency (Article 584 Code of Civil Procedure) and the president cannot rule on the merits of the case (Article 1039 Code of Civil Procedure).
Second, there are several unfair market practices that give rise to limiting the exercise of the right to (commercial) freedom of expression. For example, communications that parasite on another company’s reputation, intentionally create confusion with another company’s tradename or products, infringe on their intellectual property rights or reveal another company’s trade secrets can give rise to cease-and-desist orders which could have an adverse effect on the freedom of expression. From a procedural perspective, cessation of the practices can be requested through cease-and-desist proceedings before the president at the Enterprise Court (Article VI.104 Code of Economic Law). Cease-and-desist proceedings can only be brought before the court within one year after the unfair market practice has ended (Article XVII.1 Code of Economic Law).
Third, exercising the freedom of expression is limited by data protection law, a breach of which can give rise to cease-and-desist proceedings (Article 209 Belgian GDPR Implementation Act). The president of the court of first instance can establish the breach of the rights of a data subject and can order the cessation thereof. However, this procedure is limited to establishing a breach and ordering a cease-and-desist. Damages have to be claimed through the regular proceedings on the basis of fault-based liability. Besides these proceedings, the data subject whose rights have been breached can file a complaint against the data controller with the Belgian Data Protection Authority. The authority can then, amongst other measures, issue a warning to the controller, order the controller to comply or impose a fine on the controller.
Fourth, as a result of the right to image, publishing pictures depicting a person’s image is only allowed when that person has consented to the publication (Article XI.174 Code of Economic Law). When a picture is taken of a public figure, such as a politician, a musician or an athlete, while conducting his public role, consent to publish these pictures is presumed to be tacitly given. When a picture is published without consent, the person depicted in that picture can claim damages without having to prove misconduct, loss and a causal link between both. The right to image should be seen separately from the right to data protection, which implies that a journalist who is responsible for publishing the picture cannot invoke the journalistic exceptions to the GDPR.
The party bringing a civil claim bears the burden of proof of the misconduct, loss and causal link; the unfair market practice; the processing in breach of data protection rules or the publication of his image without his consent. The defendant is allowed to defend the claim with all evidence at hand.
Contributor: Frederic Debusseré (Partner)
Joseph Stevensstraat 7 rue Joseph Stevens
The material in this Guide is for general information only and does not constitute legal advice.
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