Belgium

By Jonathan Check

Flag of Belgium (Image is in the Public Domain)

Flag of Belgium (Image is in the Public Domain)

In the 2016 Reporters Without Borders “World Press Freedom Index,” Belgium was ranked 13 out of 180 countries (“Belgium.” 2016 World Press Freedom Index). They moved up from being ranked 15 in 2015. In 2014, they were ranked 23, the lowest they had ever been on the list. They achieved their highest ranking ever, 5, in 2007, which was the last year they improved prior to 2015.

Their tendency to drop or stagnate in recent years was probably due to increasingly questionable treatment of journalists and a lack of protection regarding freedom of the press. The past couple of decades have seen the government draw the ire of Belgian media increasingly, most often when the press is critical of a public official. Prior to this though, the government was often criticized for being too laissez-faire with the media, causing the press to self-regulate and form their own code of ethics in the absence of governmental regulations.

BelgiumPFI

Historical Background

Belgium is located in northwestern Europe, bordering the Netherlands, Germany, Luxembourg, France and the Atlantic Ocean. Their location, lack of natural resources and small internal market for finished goods have forced their economy to be based largely on trading (World Book, Inc. 232). Their location has also meant that their territory becomes a battleground for other nations, as it did in both World Wars. Since then, countries have met within Belgium’s borders for more peaceful purposes, such as the European Union and North Atlantic Treaty Organization establishing their headquarters there.

Belgium declared independence from the Netherlands in 1830 and drafted their constitution in 1831. Their government is both a parliamentary democracy and a constitutional monarchy. The constitution established their monarch as chief of state and the prime minister as head of government. The prime minister and cabinet rule for as long as the parliament approves of them.

The Belgian Parliament is split into the 150-member Chamber of Representatives and the 60-member Senate. The Chamber is elected directly by the people, while 50 senators are appointed by regional governments and the other 10 are selected directly by the first 50 members. Parliament members are elected every five years, though the prime minister can at any time ask the monarch to disband the parliament and call for new elections. National and regional governments follow generally the same structure.

Belgium’s highest court is the Court of Cassation, followed by five regional courts which hear appeals from the various lower courts. Specialized courts exist for labor disputes, commercial disagreements, military justice and conflicts between regional and national laws.

Linguistically and culturally, Belgium is clearly influenced by its neighbors. Northern Belgium, known as Flanders, is heavily influenced by their Dutch neighbors, while southern Belgium, known as Wallonia, has clear French influences. There is also a small segment of eastern Belgium influenced by its German neighbors. Because of this diversity, the government works to ensure all ethnic and linguistic groups are represented and respected.

Free Speech

Belgians have historically enjoyed rather impressive freedom of speech rights. Their constitution protects it in two articles. Article 11 states that “laws and decrees shall especially guarantee the rights and liberties of ideological and philosophical minorities,” allowing every voice in Belgium, no matter how quiet, to be heard and protected (Wolfrum et al. 4). Additionally, Article 19, “the freedom to manifest personal opinions in every way [is] guaranteed, except for the repression of offenses committed in the exercise of these liberties,” allows anyone to speak their mind insofar as it does not hinder another person’s ability to speak theirs.

Belgium has shown in recent years that such freedoms are apparently not absolute. In 1995, they passed an anti-revisionist law – a law stating that people cannot deny or downplay the atrocities committed in the Holocaust. This law blatantly goes against Article 11 of Belgium’s Constitution, which protects ideological and philosophical minorities. The law was first put to use in 1999 when David Vercruysse was handed a six-month suspended sentence and an $863 fine for distributing copies of Final Conflict, a British neo-Nazi booklet claiming the Holocaust was exaggerated (UPI). Vercruysse defended his actions by claiming prosecution violated his right to freedom of speech.

“We have foreseen limitations to freedom of speech, more particularly when combating opinions baneful to society,” said the judge that doled out Vercruysse’s sentence. “We must avoid Belgium becoming a refuge for revisionism.” The judge said Final Conflict minimized the atrocities committed by Nazi Germany and showed hostility toward democracy. Vercruysse claimed he was unaware that his actions were illegal, despite a line in the booklets he distributed blatantly saying “it is illegal to ask this particular question [about the extent of the crimes committed in the Holocaust].” Although the book originated in Britain, this line ought to have set off a warning in his head about whether the issues expressed were allowed to be brought up and disseminated in his own country.

In 2012, Belgium passed a law that punished those who utter offensive language with a fine between 75 and 250 euros (Newcomb). The law applied not only to the spoken word, but statements made in print and other forms of mass communication as well. A spokesman for Freddy Thielemans, the mayor of Brussels, said “any form of insult is from now on punishable, whether it be racist, homophobic or otherwise.” Police previously had no reason to arrest people for such an exercise of free speech because nobody on the receiving end ever wished to prosecute the speaker.

In November 2015, the government of Belgium restricted the free speech of individuals in Brussels as police and military executed a terrorism raid on Salah Abdeslam, a man suspected of participating in the infamous Paris attacks (Daniels). Local Belgians near the raid were asked not to share eyewitness details online about the actions taken by the police and military for the stated purpose of keeping them safe and not alerting the suspect to their movements and plans. Bizarrely, residents began flooding Twitter with pictures of cats instead of firsthand observations about the nearby operation, complying with the somewhat justifiable form of government censorship. Although understandable, this social media censorship is still a violation of Belgians’ right to free speech and expression.

Free Press

Like speech, freedom of the press is also protected by the Belgian Constitution, in this case more directly and comprehensively. Article 25 states that “the press is free; censorship may never be established and no security may be demanded from writers, publishers or printers [and] where the author is known and resides in Belgium, the publisher, printer or distributor may not be prosecuted” (Wolfrum et al. 7). Also, Article 32 guarantees freedom of information: “everyone has the right to consult any administrative document and obtain copies, except in the cases and under the conditions specified by the law, decree or rule referred to in Article 134.” After the government had shown leniency – perhaps even apathy and disinterest – toward the press in Belgium, the Belgian Press Council, made up of various press organizations in the country, drafted the Belgian Code of Journalistic Principles in 1982 to create some form of self-regulation in the absence of any by the government (Quick 97).

Just like freedom of speech though, the freedom of the press in Belgium has come into question in recent decades. MED-TV was a licensed Kurdish satellite broadcaster based in Belgium which aimed “to develop Kurdish culture and language, and to provide communication for the Kurds,” who are marginalized and spread out mainly across northern Africa, the Middle East and Europe, and who were previously unable to access news coverage not prejudiced against them within their home countries (Ryan). While MED-TV was directed toward Kurds, they aimed to be as objective as possible and give voice to all sides in an argument concerning Kurds. The governments that have marginalized the Kurds, particularly Turkey, continuously complained to and put pressure on other governments to sanction MED-TV.

It seems Belgium gave in to this pressure in 1996 as over 200 police raided the Belgian offices of MED-TV, arresting both staff and guests alike. Authorities took tape machines, computers, video news archives, disks, printers and other equipment from the office, with the stated goal of “find[ing] evidence of money laundering, drug trafficking, prostitution and smuggling ‘illegals.’ ” No evidence of any of these charges was found and all those arrested were released. In disregard for both the free press article of their constitution as well as the article guaranteeing the expression of minority points of view, the Belgian government violated the freedom of the press being lawfully exercised by MED-TV.

A notable area where press freedoms have come into question is in criticism of public officials, directly or indirectly. Legal observers have noted that, despite many cases being overturned on appeal, lower courts are increasingly siding with public officials accused of wrongdoings. A police officer investigating allegations of sex abuse by a minor in 1999 was accused by multiple publications of being negligent in his duties to thoroughly investigate the claims (Quick 98). Le Soir Illustr journalists who implied such inaction was being taken were fined 55,000 euros for their statements. In addition, Michel Biouffoux and Marie-Jeanne Van Heeswyck of Tele Moustique also had fines levied against them for calling the same officer a “manipulator.”

Officials came under serious criticism regarding the case of Marc Dutroux, a serial killer and child molester who kidnapped, tortured and sexually abused six girls in 1995 and 1996. He ultimately killed his accomplice as well as four of the girls. However, despite being arrested, his trial seemed to be perpetually delayed, leading the press to criticize officials and try to dig up reasons why the government was so keen to drag the case out, which led to mass protests by the Belgian citizenry who sought justice. Details and a transcript of the case against Dutroux were posted by a Belgian journalist online before promptly being ordered to be taken down by the government. This comes in direct conflict with the freedom of information guaranteed by Article 32 of Belgium’s Constitution, which guarantees that all Belgians can obtain a copy of government records. The European Court of Human Rights sided with the journalist and awarded them legal compensation.

That isn’t the only instance where the government burned journalists on freedom of information. In 1997, police raided the home of Hans Van Scharen, a De Morgen journalist, and confiscated items related to a “hormone mafia” case Van Scharen had investigated. He was accused of improperly possessing judicial documents. Separately, in 2000, L’Investugattuer editor Jean Nicolas faced an emergency injunction to stop the paper from publishing a list of convicted and suspected pedophiles. The court said it would have violated the rights of the accused and threatened to impose a fine of 22,000 euros per copy if the paper published the list. The public, on the other hand, saw this as indifference toward victims and potential victims of pedophilia. While the rights of the accused are important, at least the list of convicted pedophiles ought to be publishable.

Belgian journalists have also been targeted by the government for refusing to reveal their sources. In 2002, De Morgen journalists Douglas de Coninck and Marc Vendemeir were asked to reveal their sources after they reported that the Belgian State Railways had overshot its budget for a high-speed train. They faced a threat of being fined 25 euros per hour until they complied. A judge for the Court of First Instance in Brussels recognized the concern of the journalists that handing over the source document could identify the source of their information and so ruled in their favor (Voorhoof). A similar incident happened in 2005 as Anne De Graaf and Yves Desmet, also of De Morgen, were asked to reveal their sources for a story incorporating leaked information from the police about concerns that Al Qaeda was planning an attack on Antwerp (RSF/IFEX). Authorities interrogated them and demanded to be informed of their sources, but the journalists refused.

The latter case was going on at the same time that a law creating protections both for the confidentiality of journalists’ sources and against the intrusion on and removal of journalists’ property was working its way through Belgium’s Parliament. The law ended up passing in March 2005, to the relief of everyone concerned over the increasing government intrusions on the press (IFEX). The law’s protection is almost absolute, with its only exception being in extreme circumstances where a person’s physical well-being is at stake and law enforcement has no other way of obtaining the information in order to help their investigation. This new protection for journalists led to a sigh of relief from them and their advocates.

In a more recent – and somewhat dumbfounding – incident, a Mechelen, Belgium, court in 2013 ruled against Desmet, from the 2005 De Morgen confidentiality incident, in a libel suit (RSF). He was accused of expressing a “wrong” opinion in an editorial he wrote in which he accused Yves Liégeois, a prosecutor-general in nearby Antwerp, of showing partiality to white-collar criminals in a tax fraud investigation. Liégeois’ wife sued for libel, demanding 19,000 euros in damages. Though the court awarded only one euro in symbolic damages, they concluded that “the suggestion of apparent partiality and the use of the term ‘class justice’ were based on a personal perception,” going on to classify Desmet’s comments in the editorial as “wrong from the point of view of objective information.”

Reporters Without Borders issued a pointed, scathing response:

“This ruling is as absurd as it is outrageous. An editorial is not an exercise in investigative journalism or a factual report that has to be objective. It is by definition the free expression of an opinion, a series of ideas deriving solely from freedom of expression.

“How can an opinion, which is by definition subjective, be expected to satisfy criteria of objectivity? How are we to interpret the extremely dangerous notion of a ‘wrong opinion’ being voiced by a judge who is supposed to guarantee freedom of expression? Does this mean that some opinions are now unacceptable in Belgium?”

Reporters Without Borders went on to express their concern over what this ruling could mean for the right to scrutinize public officials internationally, let alone in Belgium. On appeal, the case’s ruling was reversed in 2015 and the measly one-euro fine was overturned (Hope). While the appellate court said errors were made in the editorial as well as insufficient rights of reply given to Liégeois, it was also decided that because Liégeois’ wife was not explicitly mentioned in the editorial, she had no right to sue for libel. That should pose a new question though: How might this have turned out differently if Liégeois himself filed suit? Based on the ruling and explanation given after appeal, he probably would have won damages if he had.

A more recent attack on freedom of the press in Belgium – albeit an indirect one – revolves around a case that has already been put forth in the free speech section of this essay. When the Belgian police and military executed a terrorism raid on Salah Abdeslam in November 2015 and asked locals to refrain from posting details to social media in order to avoid tipping the terror suspect to their actions, the Belgian media which were not able to get into the area were prevented from getting inside information from the locals to disseminate to their audiences (Daniels). As expressed earlier, this form of censorship is understandable, but it does create a definite hindrance to the press.

Critical Comparison

Belgium’s guarantees of free speech are similar to those of the United States. Of particular note is Article 11 of Belgium’s Constitution, which specifically “guarantee[s] the rights and liberties of ideological and philosophical minorities” (Wolfrum et al. 4). Belgium goes so far as to explicitly say in their constitution that free expression applies to minorities. Perhaps the closest the United States comes is saying something to the same effect in the majority opinion of Texas v. Johnson, written by Justice Brennan, which states “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (Texas v. Johnson 491 U.S. 397, 414).

As good as constitutional protection for expressing minority opinions is, it matters not if the government refuses to abide by it. Were David Vercruysse to have distributed copies of Final Conflict, the neo-Nazi revisionist booklet in the United States, it is likely that he would have been protected. Yes, the majority of American society would find the book disagreeable, but that isn’t enough to warrant banning it, since it simply expresses an idea and does not trigger the standard set forward in the per curiam opinion of Brandenburg v. Ohio by “inciting or producing imminent lawless action” (Brandenburg v. Ohio 395 U.S. 444, 447).

The law passed in Belgium restricting free speech by prohibiting offensive language would also likely not be upheld in the United States. U.S. citizens are allowed to express their feelings about one another with the boundary as to what can legally be said being drawn at fighting words that threaten to immediately breach the peace – again, getting back to the Brandenburg standard.

The social media censorship and restriction during the November 2015 terrorism raid, however, likely would be upheld in the United States, despite its inhibitions of free speech and press. While Near v. Minnesota protected the press from prior restraints in the case at hand, the majority opinion written by Chief Justice Hughes does note that “no one would question but that a government might prevent…the publication of the sailing dates of transports or the number and location of troops” (Near v. State of Minnesota ex. rel. Olson 283 U.S. 697, 716). Both police and military were involved in the terrorism raid, and the United States, based on that exception set forth in Near, would support and, if a similar incident ever occurred stateside, mirror the Belgian government’s request for social media silence concerning the actions being taken during the raid. This case is a perfect example that, as much as the world may cherish free speech, there are some highly justifiable reasons why it might be restricted in special circumstances.

Belgium and the United States both guarantee freedom of the press, though Belgium’s guarantee in Article 25 of their constitution that “the press is free; censorship may never be established and no security may be demanded from writers, publishers or printers [and] where the author is known and resides in Belgium, the publisher, printer or distributor may not be prosecuted” is much more explicit and encompassing than the First Amendment to the U.S. Constitution, which simply says that “Congress shall make no law…abridging the freedom of speech, or of the press” – and freedom of the press in Belgium has its own amendment, rather than being lumped in with the other freedoms of expression, like in the U.S. Constitution (Wolfrum et al. 7; “The Bill of Rights: A Transcription“). Article 32 of Belgium’s Constitution, guaranteeing freedom of information, has no constitutional parallel in the United States. However, the Freedom of Information Act passed in 1966 serves essentially the same purpose, and amendments were added 30 years later to include freedom of electronic information.

The incident involving MED-TV would likely be condemned in the United States, just as it was in Belgium when their government was pressured into acting against the Kurdish satellite television station. In addition to violating the protections for the press in both countries, the United States may also run into issues regarding the Fourth Amendment to their constitution, which guarantees that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the United States is mainly looking to protect individuals, it’s possible that the violations taken against MED-TV could still be prohibited under the same standard. The United States has given the press particularly broad freedom, which the Supreme Court has protected and defended on multiple occasions, so an anti-press action like this would be quite surprising if condoned.

The multiple cases where the press were sanctioned for criticizing public officials – within reason – certainly would not be tolerated in the United States. New York Times Co. v. Sullivan established the stringent criteria the press had to violate in order to be justly prosecuted for libel against a public official. The unanimous opinion written by Justice Brennan stated that “debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” (New York Times Co. v. Sullivan. 376 U.S. 254, 270). These attacks against public officials would certainly be tolerated in the United States, and any official who tried to sue would face a very steep uphill battle.

As for freedom of information in Belgium, the United States has similarly open records with similar restrictions. While some documents and the things that can be gleaned from them are restricted, both countries seek to make their governmental records and operations as open as possible to residents, including journalists. While, as mentioned earlier, the Fourth Amendment could possibly have been applied to protect MED-TV, it could certainly be applied in one of the cases regarding freedom of information. If Hans Van Scharen, whose house was raided to seize items related to a case he investigated and reported on, lived in the United States, the Fourth Amendment would protect him from the removal of documents obtained under the law and legally accessible to both press and public, unless police had a warrant. As for the case of L’Investugattuer editor Jean Nicolas facing an emergency injunction in 2000 before he could publish a list of convicted and suspected pedophiles, it is likely the United States would act similarly to Belgium and restrict him to protect the rights of the accused. However, the caveat would be that there is nothing wrong with naming those convicted of pedophilia – the United States even has governmental sex offender registries open for public search. It would seem Belgium has a thing or two to learn about holding true to their laws allowing for freedom of information for use by the public as well as the press.

It’s not easy to say how the United States might have ruled in the cases of source confidentiality. Branzburg v. Hayes, decided in 1972, was the last case that the Supreme Court heard regarding the protection of journalists from testifying and revealing their sources as part of that testimony – and the Supreme Court ruled that forcing them to testify was permissible and not a violation of the First Amendment (Lewis 87). The U.S. Supreme Court never created a clear rule and instead made decisions on a case-by-case basis, refusing to create an overarching standard.

However, a brief by the New York Times in that case suggests standards for source confidentiality similar to those created in the 2005 Belgian law that created protections both for the confidentiality of journalists’ sources and against the intrusion on and removal of journalists’ property. Just as exceptions were made in that law for instances where a person’s physical well-being is at stake and law enforcement has no other way of obtaining the information in order to help their investigation, the New York Times discouraged government subpoena unless the government knew the journalist had the information for a specific crime, they couldn’t obtain the information from other sources, and there was a “compelling and overriding” government interest in the information. Given where the U.S. Supreme Court stands – and has been frozen for over 40 years now – it seems that, for once in this comparison of free speech and press rights in the two countries, Belgium has the upper hand when it comes to source confidentiality.

Finally, in the case of Yves Desmet’s “wrong” opinion in a 2012 editorial, there’s almost no question how the United States would handle it. Legally, it is clearly protected by the First Amendment and the ruling in New York Times Co. v. Sullivan, which allows criticism of public officials by the press unless strict standards are met. Let’s step outside the bounds of the legal world for a second, if you will, and look at one particular element of the case though: the notion of a “wrong” opinion. Even elementary schoolers are taught the difference between a fact, which is true and cannot be overturned without strong evidence to the contrary, and an opinion, which can vary from person to person and can’t be right or wrong. An elementary schooler should be able to debunk the case against Desmet, so why can’t Belgian judges? Unlike regular news, editorials allow for expression of opinion and are therefore harder to scrutinize. The response from Reporters Without Borders clearly exemplifies the ridiculousness of the ruling against Desmet, and basically any country around the world would be fiercely questioned were they to side with the lower court that found Desmet guilty of libel in the editorial in question.

Conclusion

While Belgium has a higher ranking than the United States in the latest World Press Freedom Index, one might not think so when comparing free speech and free press issues between the two countries. Although their record in recent decades has been sketchy, they have taken steps in the right direction. However, the trend of restricting and prosecuting journalists who criticize public officials is particularly worrying and perhaps shows a lack of integrity and honesty from the lower court judges who rule in favor of their colleagues. Additionally, the criminalization of hate speech and offensive language, short of what the United States considers “fighting words,” shows poorly for a country whose constitution goes even further than the U.S. Constitution to protect free speech. If one were to dig deep and look into free speech and free press issues in the United States in recent years, perhaps it would make sense why Belgium is 28places above the United States, but based on the incidents analyzed here, that difference seems questionable.

Works Cited and Consulted

“Belgium.” 2016 World Press Freedom Index. Reporters Without Borders, 2016. Web. 22 Apr. 2016.

“Belgium.” The Human Rights Encyclopedia. Armonk, NY: Sharpe Reference, 2000. 58-60. Print.

“The Bill of Rights: A Transcription.” National Archives and Records Administration, n.d. Web. 25 Mar. 2016.

Brandenburg v. Ohio. 395 U.S. 444. Supreme Court of the United States. 1969. WestLawNext. Thomson Reuters, n.d. Web. 27 Mar. 2016.

Daniels, Kit. “Belgium Censors Free Speech with Kitten Photos during Terror Raid.” InfoWars. Free Speech Systems, LLC, 23 Nov. 2015. Web. 17 Mar. 2016.

Hope, Alan. “Journalist Wins Damages Action Brought by Spouse of Prosecutor.” Flanders Today. Community of Flanders, 16 Apr. 2015. Web. 25 Mar. 2016.

IFEX. “LAW PROTECTS JOURNALISTS’ SOURCES – IFEX.” IFEX. International Freedom Exchange Express, 23 Mar. 2005. Web. 25 Mar. 2016.

Lewis, Anthony. Freedom for the Thought That We Hate: A Biography of the First Amendment. Philadelphia: Basic Books, 2009. Print.

Near v. State of Minnesota ex. rel. Olson. 283 U.S. 697. Supreme Court of the United States. 1931. WestLawNext. Thomson Reuters, n.d. Web. 27 Mar. 2016.

Newcomb, Alyssa. “Brussels Plans to Fine Offensive Language.” ABC News. ABC News Network, 05 Sept. 2012. Web. 17 Mar. 2016.

New York Times Co. v. Sullivan. 376 U.S. 254. Supreme Court of the United States. 1964. WestLawNext. Thomson Reuters, n.d. Web. 27 Mar. 2016.

Quick, Amanda C., ed. “Belgium.” World Press Encyclopedia, A Survey of Press Systems Worldwide. 2nd ed. Vol. 1. Farmington Hills: The Gale Group, Inc., 2003. 94-102. 2 vols. Print.

RSF. “Court Rules That Newspaper Editor Expressed “wrong” Opinion.” Reporters Without Borders. Reporters Without Borders, 17 Jan. 2013. Web. 25 Mar. 2016.

RSF/IFEX. “Police Question Two Journalists in Latest Attack on Confidentiality of Sources – IFEX.” IFEX. International Freedom of Expression Exchange, 28 Jan. 2005. Web. 25 Mar. 2016.

Ryan, Nick. “Television Nation – the Story of MED-TV.” Nick Ryan. Mar. 1997. Web. 18 Mar. 2016.

Texas v. Johnson. 491 U.S. 397. Supreme Court of the United States. 1989. WestLawNext. Thomson Reuters, n.d. Web. 27 Mar. 2016.

UPI. “Belgium Court Uses Anti-revisionist Law.” ResistanceS, 10 Nov. 2000. Web. 17 Mar. 2016.

Voorhoof, Prof. Dr. Dirk. “The Protection of Journalistic Sources: Recent Developments and Actual Challenges.” Council of Europe. 30 Sept. 2002. Web. 25 Mar. 2016.

Wolfrum, Rüdiger, et al. “The Kingdom of Belgium.” Constitutions of the countries of the world. New York, NY Dobbs Ferry, N.Y: Oxford University Press, Oceana Publications, 1971. Print.

World Book, Inc. “Belgium.” The World Book Encyclopedia 2016. Vol. 2. Willard, OH: World Book, Inc., 2015. 226-34. 22 vols. Print.

 

(This essay was last updated on April 30, 2016.)

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