The protection of freedom of expression and freedom of the press in Belgian media law

The main rules on freedom of expression and information and on press freedom are enshrined in the Belgian Constitution. These articles (Articles 19, 25 and 150) of the Constitution have remained largely unchanged since their first drafting in 1831. This provides for a high degree of stability, but also raises problems with regard to their interpretation in the light of new technologies. Particularly problematic are Articles 25 and 150, which refer literally to the ‘press’ (i.e., ‘the press is free’ [1] and ‘a jury will be installed for press offences’ [2]), and are, at least according to the Belgian Court of Cassation and some of the lower courts, not technology-neutral. The technology dependency of Articles 25 and 150 is in sharp contrast with the more general Article 19 of the Constitution on freedom of expression and with Article 10 of the ECHR, which do not refer to a certain technology.

Constitutional safeguards to freedom of expression and freedom of the press

The main legal norms about freedom of expression and information and freedom of the press in Belgium are incorporated in the Belgian Constitution.

Article 19 of the Belgian Constitution is a general provision safeguarding the freedom of expression, albeit that offences committed when using this freedom may be punished (e.g. cases of defamation, etc.).

Article 25 specifically safeguards the freedom of the press and prohibits censorship. It also sets a principle of stepped liability for both criminal prosecutions and civil liability, whereby in principle only one person can be prosecuted: in the first place, the author, provided that he is known and resident in Belgium, in second instance, the publisher, then, the printer, and finally the distributor. This stepped liability replaces one actor by the next actor if the preceding one is missing in the chain, and was established as a mechanism to prevent private censorship by publishers, printers or distributors (i.e., since in principle the author alone will be prosecuted for a published work, publishers, printers and distributors do not have to fear for prosecution; [3] see my previous blog post for more information on the principle of stepped liability).

Article 150 of the Belgian Constitution submits all 'press offences' to the jurisdiction of a jury (with the exception of press offences inspired by racism or xenophobia which are tried by professional judges). By submitting press offences to a jury (i.e., representatives of the people), the Belgian Constitution meant to install a special judicial protection for authors, journalists and editors: in practice, the cost of trials by jury has led criminal authorities to a general attitude of not bringing proceedings against the press, [4] so that the press is de facto only subject to civil proceedings, and that the civil courts have become the central forums for discussions on the limits of press freedom.[5]  Following two recent decision of the Belgian Court of Cassation of 2012 (see below), it seems that the de facto criminal immunity for press offences of Article 150 of the Constitution covers not only traditional media of the written press, but also digital communications over the internet.[6]  However, it is yet unclear whether this principle applies also to audiovisual broadcasts (the Belgian Court of Cassation has traditionally interpreted the concept ‘press offence’ in Article 150 of the Constitution so restrictively that it does not include audiovisual broadcasts; this means that the latter may be prosecuted before the ordinary criminal courts). It remains to be seen whether the recent changes in case law of the Court of Cassation and of the ECtHR will bring any changes to this.[7]

Article 32 of the Constitution is a provision on open governance, providing that everyone has the right to consult any administrative document and to have a copy made of such document, except in limited cases as specified by secondary legislation. The exception referred to in Article 32 has been laid out in different legislative acts, such as the Act of 11 April 1994 (federal level), the Decree of 26 March 2004 (Flemish level) and the Act of 12 November 1997 (provincial and municipal level). Exceptions mainly relate to sensitive personal information, public security or abusive requests. In practice, concerns are raised with regard to the enforceability of Article 32 of the Constitution and related laws on open government. Journalists are largely unaware of the laws on open government, and the appeals procedure of the federal law on open government is considered inadequate (i.e. if access to documents is refused by the administration, the Council of State can only nullify the decision, following which the journalist/citizen has to renew his/her demand for access to the same administrative body).[8]

The interpretation of the concept of the ‘press’ in the Constitution

The fact that Articles 25 and 150 of the Belgian Constitution refer to the ‘press’ has given rise to discussions in the case law and legal doctrine on the exact scope of these articles. On the one hand, there are courts and authors who defend an extensive and evolving interpretation of the concept of the ‘press’ in the Constitution. The core of their argument is that, when the Constitution was drafted in 1831, the legislator could not have foreseen the emergence of new technologies of communication other than the printing press, and that, as a consequence, the concept of the ‘press’ in the Constitution should be interpreted in a contemporary sense to include modern communication media. Other courts and authors adhere to the restrictive interpretation in the case law of the Court of Cassation, and argue that numerous other articles of the Constitution have been revised since 1831, but that the legislator has so far not broadened the scope of Articles 25 and 150. Opponents of an evolving interpretation also refer to the fact that, when the official Dutch translation of the Constitution was enacted in 1967,[9] the legislator translated the French term (‘presse’; ‘press’ in English) as ‘drukpers’ (‘printing press’ in English) rather than the broader term ‘pers’ (‘press’ in English). In other words, at a time when new communication media such as the radio and television already existed, the legislator chose a restrictive term (‘printing press’) rather than a broader and more technology-neutral term (‘press’).[10]

This discussion is important in so far that it touches the very core of the constitutional guarantees for media freedom in Belgium. At a time when the Internet and convergence of technologies are posing a number of new legal problems, judges and legal scholars are still discussing on the exact scope of the term ‘press’ and whether or not it comprises comparatively ‘old’ media such as radio and television. Both Article 25 and Article 150 of the Constitution have been declared subject to revision in 2010, and their scope will probably be extended to other forms of media in the future.[11] However, such revision is yet to take place.

The case law of the ECtHR (the European Court of Human Rights) has had an important influence on the debate in Belgium on the scope of the prohibition of censorship as mentioned in Article 25 of the Belgian Constitution. The Belgian Court of Cassation has since long interpreted Article 25 of the Constitution on the freedom of the press and the prohibition of censorship restrictively as applying only to the written press, and not to radio or television, for example (see also above).[12] Furthermore, the Belgian Court of Cassation interprets Article 25 of the Constitution as applying only to prior censorship, which means in practice that the prohibition of censorship applies only if there has not yet been any dissemination; this prohibition does not apply from the moment there has been some kind of dissemination (it is yet unclear how this criterion would be applied to the Internet).[13]

Although all scholars and courts do not share these interpretations, some Belgian courts have granted injunctions for taking newspapers or magazines out of distribution, based on the argument that, since the papers and magazines were already available for sale, their judicial ruling did not constitute prior censorship. The situation was even more problematic for television and radio broadcasts. Based on the case law of the Court of Cassation that such broadcasts do not fall under the constitutional prohibition of censorship, in several instances Belgian urgent-application judges have prohibited the broadcasting of programs, even before any dissemination had taken place.[14]

These cases covered a range of different facts and allegations, ranging from defamation to breach of privacy, breach of the presumption of innocence and breach of confidentiality of parliamentary inquiries. In scholarly literature, one of the recurring issues is the unilateral character of some of the judicial decisions in urgent procedures, where the judge ‘provisionally’ (i.e. pending a definitive decision) orders the paper or magazine to be taken out of circulation, in order to prevent further harm to the claimant, without hearing the publisher.

Two of these cases have been brought before the ECtHR, one involving a magazine (written press), and another one involving a television broadcast. In the first of these cases, Leempoel & Ciné Revue v Belgium, [15] the ECtHR found no violation of freedom of expression in the way that a Belgian urgent-applications judge had ordered a magazine to be withdrawn from sale and banned from further distribution. The ECtHR accepted that the publication of an article in the magazine (which comprised confidential correspondence of a judge) breached the private life and the defence rights of the judge, while not contributing to the public interest. The ECtHR ruled that the grounds given by the Belgian judge to justify the provisional ban on further sale and distribution (i.e. limitation of damage caused to a person’s private life and defence rights) were relevant and sufficient and that the limitation of the publisher’s right to freedom of expression could in casu be seen as necessary in a democratic society and proportionate to the aim pursued.

In a second case, RTBF v Belgium, [16] the ECtHR did condemn Belgium for an injunction ordered by an urgent-applications judge against RTBF, preventing the broadcast of a program until a decision on the merits was rendered between RTBF and a person named in the program, who claimed that the program impugned his honour and reputation and interfered with his private life. The Court of Cassation had decided that Article 25 of the Constitution on the prohibition of censorship did not apply to the case, since it was only applicable to print media, and that the restriction on freedom of expression was legitimate, as it was based on legislation allowing preventive restrictions on freedom of expression in flagrant cases of violation of the rights of others.[17]

The ECtHR had to determine whether the interference with RTBF’s freedom of expression had a legal basis and it reiterated that a norm can only be regarded as a ‘law’ within the meaning of Article 10 § 2 ECHR if formulated with sufficient precision to enable the citizen to foresee the consequences of a given action. Although Article 10 does not prohibit prior restraints on broadcasting as such, any such restraints require a particularly strict legal framework to ensure a tight control over the scope of the ban and an effective judicial review to prevent abuse. The ECtHR considered that the vague legislative framework in Belgium (with no specification of the type of restrictions authorised, nor their purpose, duration, scope or control), together with the discrepancies in case law on the possibility of preventive intervention by urgent-application judges (the ECtHR listed examples of contradicting Belgian case law and stressed the differences in approach between Belgium’s highest courts [18]), did not fulfil the condition of foreseeability under Article 10. The ECtHR particularly denounced that, at least in this case, the distinction made by the Court of Cassation between print and audiovisual media did not provide a strict legal framework for prior restraints on broadcasting.

A request for referral to the Grand Chamber of the Court was refused. As a final decision, this judgment has direct effect in domestic Belgian law. It is in our view correct to say that, in the current state of the law, the prohibition of prior censorship of Article 25 of the Belgian Constitution is no longer limited to print media but also applies to audiovisual media. Likewise, it makes sense to accept that audiovisual broadcasts should no longer be barred from the criminal immunity for press offences provided by Article 150 of the Constitution).

Other important legislation on the protection of free speech and press freedom in Belgium

Although there is no legal registration or notification obligation in Belgium for publishing a newspaper, a magazine or a book, Article 299 of the Penal Code stipulates that publishing or distributing a printed matter without mentioning the real name and address of the writer or the printer is punishable. However, this is not considered a major obstacle to free publishing. The Penal Code also contains specific language on the punishment of libel (articles 443 – 452).

The main broadcasting act for the Flemish Community is the Act of 27 March 2009 on radio and television broadcasting (hereafter ‘FLBA’).[19] The main broadcasting acts for the French Community are the Act of 27 February 2003 on audiovisual media services (as modified by the Act of 5 February 2009; hereafter ‘FRBA’) [20] and the Act of 14 July 1997 on the Belgian radio and television of the French Community (hereafter ‘RTBF Act’).[21] For the German-speaking Community, the main acts are the Act of 27 June 2005 on audiovisual media services and film showings (hereafter 'GBA') and the Act of 27 June 1986 on the Belgian radio and television centre of the German-speaking Community (hereafter 'BRF-Act'). For the region of Brussels, the main act is the Act of 30 March 1995 on electronic communication networks, electronic services and broadcasting activities in the bilingual region of Brussels-Capital. Other important documents for the public broadcasters are the management contracts between the public broadcasters and the Communities.

Other relevant legislation are the Holocaust Denial Act of 23 March 1995 which makes it illegal to publicly “deny, grossly minimise, justify or approve the genocide committed by the German National Socialist regime during the Second World War”, and the different anti-discrimination acts of 10 May 2007 which limit the freedom of expression if this amounts to unlawful discrimination. The Racial Equality Act of 10 May 2007 implements the EU Racial Equality Directive and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, and prohibits discrimination on grounds of alleged race, color, descent, national or ethnic origin, and nationality. The Gender Equality Act of 10 May 2007 fights discrimination related to sex and assimilated grounds (i.e. maternity, pregnancy and transsexualism). The General Anti-discrimination Act of 10 May 2007 implements Directive 2000/78/EC of 27 November 2000 and prohibits discrimination on all other grounds (i.e., age, sexual orientation, civil status, birth, wealth/income, religious or philosophical belief, state of health, disability, physical characteristics, political opinion, language, genetic characteristic, social origin). This Act also contains language that incitement to hatred, discrimination or violence is punishable (see art. 22 of the Act and art. 444 Penal Code).

The impact of the case law of the European Court of Human Rights on Belgian media policy

Article 10 of the European Convention on Human Rights (ECHR) (and Article 19 of the International Covenant on Civil and Political Rights (ICCPR)) and the decisions of the ECtHR exert direct effect on the Belgian legal system. Generally speaking, there are no major problems with the implementation of ECtHR case law in Belgium, and even ECtHR decisions against other countries are generally followed by Belgian case law.[22]

The prohibition of prior censorship and the distinction between the written press and audiovisual media

For the cases of Leempoel & Ciné Revue v Belgium [23] and RTBF v Belgium [24], see above.

In RTBF v. Belgium, the ECtHR found the restrictive interpretation of Article 25 of the Belgian Constitution (in the sense that the prohibition of prior censorship would apply only to print media outlets, not to broadcasters) to be a violation of Article 10 of the ECHR. This ECtHR decision means in effect that audiovisual content must come within the scope of the prohibition of prior censorship in Article 25 of the Belgian Constitution.[25] Meanwhile the Belgian Court of Cassation, in two decisions of 2012, [26] decided that digital communication via the internet should be considered a ‘press offence’ within the meaning of Article 150 of the Belgian Constitution. It can therefore be expected that the Court of Cassation will henceforth consider internet publications to fall within the scope of Article 25 of the Belgian Constitution and thus benefit from the prohibition on prior censorship.

Conviction of journalists for critical remarks towards magistrates

Another important case is the ECtHR’s decision De Haes and Gijsels v Belgium.[27] This case concerned a defamation procedure brought on behalf of members of the Belgian judiciary against two journalists who had made allegations against the magistrates of bias, affiliation with extreme-right-wing groups and miscarriage of justice. In their articles, the journalists had accused a Belgian notary of abuse of his children; when the Belgian courts decided to acuit the notary (it is now generally accepted that the allegations had indeed been false), the two journalists started attacking the judges who had awarded custody of the children to their father. The Brussels Court of Appeals had sentenced the two journalists to pay a symbolic sum of 1 Belgian Franc to each judge for defamation. Contrary to the Belgian courts, the ECtHR was of the opinion that the journalists had relied on detailed factual information in support of their claims, and had not breached their professional obligations. According to the ECtHR, the accusations made by the journalists amounted to an opinion, which was not excessive but proportionate to the stir and indignation caused by the matters alleged in their articles. Although the ECtHR conceded that the tone of the articles had been at times openly aggressive, it confirmed that Article 10 ECHR protects not only ideas and information, but also the form in which these are conveyed.

Protection of journalistic sources

Some other cases that were brought before the ECtHR against the Belgian state concerned the protection of journalists’ sources. In its judgment in Ernst and others v Belgium, [28] the ECtHR concluded that the searches and seizures by the Belgian judicial authorities at the homes of four journalists, their newspapers and RTBF constituted a breach of the journalists’ freedom of expression under Article 10 ECHR and a violation of their right to privacy under Article 8 ECHR. The searches were performed in connection with the prosecution of members of the judiciary for breach of confidence following leaks in sensitive criminal cases. The ECtHR stressed the large scale of the searches and the fact that the Belgian Government had not stated in what way the applicants were alleged to have been involved in the offences (it had not been alleged that they had written articles based on the confidential information). The Court questioned whether other means could not have been employed to identify those responsible for the breaches of confidence. In its judgment, the ECtHR found that the means employed had not been reasonably proportionate to the legitimate aims pursued, and concluded that a violation of Article 10 ECHR had taken place.

Despite of the direct effect of the Ernst decision, legislators took their time to enact new legislation, and in the meantime other similar problems occurred.[29] In 2004, a German reporter (Mr Tillack) wrote a story on irregularities in the European institutions, based on confidential documents from the EU’s Anti-Fraud Agency (OLAF). OLAF lodged a complaint against Mr Tillack with the Belgian judicial authorities, which opened an investigation for breach of professional confidence and bribery of civil servants and searched the home and workplace of the journalist, while placing his papers under seal. The Court of Cassation judged that the searches and seizures were not illegal and did not violate Article 10 ECHR.[30] The ECtHR, in its judgment Tillack v Belgium, [31] did not agree and found a violation of Article 10 ECHR. Importantly, this decision was issued after new legislation on the protection of journalistic sources had been enacted in Belgium. The ECtHR considered, on the one hand, that the interference with the journalist’s right to freedom of expression was based on Belgian law and pursued the legitimate aims of protecting the reputation of others and preventing disorder, crime and the disclosure of confidential information. On the other hand, the ECtHR emphasised that a journalist’s right not to reveal his sources was part and parcel of the right to information, to be treated with the utmost care. This was even more so since the journalist had been under suspicion because of vague rumours, and had subsequently not been charged.

Another incident that led to the enactment of legislation on the protection of journalistic sources was the revelation that the telephone traffic of a journalist had been monitored to identify her sources after she had written a story on police fears of a terrorist attack. The Court of First Instance of Brussels, in its judgment of 29 June 2007, convicted the Belgian state for breach of Article 19 of the Constitution and Article 10 ECHR.[32]

The new Act on the Protection of Journalistic Sources was finally enacted on 7 April 2005 (by unanimous vote in the Chamber of Representatives).[33] The Act took into account the relevant ECtHR case law (although it did not prevent subsequent condemnations of Belgium by the ECtHR based on facts committed under the old legislation). For more information about the Belgian Act on the Protection of Journalistic Sources, see my previous blog post.