Advertising for political parties in Belgian media: is it legal or not?
In an attempt to limit election expenses, and fearing the impact of radio and television on voters, legislation was adopted at the federal level to ban political party advertising on radio and television and partly on the internet (this ban does not apply to the written press). However, when the Communities of Belgium (the Flemish Community and the French Community) started to enact their own separate rules on political advertising on radio and television, things became messy.
Federal Belgian law on political advertising
Federal Belgian law on the limitation of election expenses forbids political advertising during the election periods in audiovisual media, cinema and on the internet. As such, the Federal Act of 4 July 1989 stipulates that political parties may, during a period of 3 months prior to the election of the Federal Parliament, not broadcast political advertising spots on radio, television or in movies; nor may they disseminate paid messages on the internet during this period (so no paid advertising through Google's or Facebook's advertising programs). Identical rules of federal law apply to the elections for the European Parliament, the Flemish Parliament, the Walloon Parliament, the Parliament of the Brussels-Capital Region and the Parliament of the German-speaking Community of Belgium.
Community law on political advertising
Notwithstanding these federal rules, the Communities of Belgium have enacted separate (and contradicting) legislation on the issue of political advertising. Until 2010, French Community law contained a general prohibition on political advertising, which applied both during and outside election periods. However, the Belgian Constitutional Court considered this general prohibition an unreasonable restriction on the freedom of expression and nullified it. Since 2009, Flemish Community law explicitly allows political advertising on Flemish radio and television during the 3-month period before the elections,  even though federal law on the limitation of election expenses continues to forbid this (see above).
It is as yet unclear which level of state is responsible for regulating political advertising. For the time being, the prohibition of political advertising during election periods as contained in federal law seems to prevail (but uncertainty reigns in the Flemish Community). Outside election periods, political advertising seems to be allowed.
Audiovisual media are bound by a duty of neutrality. They may not discriminate against political, social, cultural or other currents in society. This respect for pluralism is imposed by Flemish and French Community legislation for all public and private broadcasters, whether they broadcast at a national, regional or local level. Especially during election periods, the broadcasters are bound to treat all political parties and currents equally. In practice, this means that each party should be accorded broadcast time according to its electoral weight.
Do not hesitate to contact me for more information. If you need advice from a Belgian lawyer or attorney specialised in media law and advertising law, I will be glad to assist you.
Author: Bart Van Besien
Attorney - Lawyer - Belgium - European Union (E.U.)
Specialised in media law and intellectual property law (copyright, trademarks, patents, domain names, etc.).
 Article 5 of the Act of 4 July 1989 (Moniteur belge, 20 July 1989, 12715)
 Article 5 of the Acts of 19 May 1994 (Moniteur belge, 25 May 1994, 14101 and 14105).
 Art. 27bis FRBA (French Community Act of 27 February 2003 on audiovisual media services, as modified by the French Community Act of 5 February 2009).
 Constitutional Court, no. 161/2010 of 22 December 2010.
 Art. 49 FLBA (Flemish Act of 27 March 2009 on radio and television broadcasting). This legislation does not seem in line with the case law of the ECtHR (ECtHR, TV Vest AS and Rogaland Pensjonistparti v Norway, no. 21132/05, 11 December 2008).
 Art. 9 FRBA. Art. 29 FLBA.
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