The essential guide to Belgian media law

The basic rules on freedom of expression and freedom of the press in Belgium are enshrined in the Belgian Constitution. The majority of Belgian media-related legislation concerns audiovisual media, rather than the written press or the internet. The rules on audiovisual media are passed by the Community Parliaments (i.e. mainly the Flemish Parliament and the Parliament of the French Community). The Federal Belgian Parliament is responsible for indirect state subsidies, copyright legislation and telecommunications policy (including satellite reception and terrestrial networks).

 

The protection of freedom of expression and freedom of the press under the Belgian Constitution

 

Below are the main rules on the protection of freedom of expression and freedom of the press as they are listed in the Belgian Constitution. For a more extensive discussion on the rules on freedom of expression and freedom of the press under Belgian law (and relevant case law of the Belgian courts and the European Court of Human Rights), check out my separate blog post on this issue. Article 10 ECHR (the European Convention on Human Rights) and article 19 ICCPR (the International Covenant on Civil and Political Rights) are directly applicable by Belgian judges and, as such, are of main importance in Belgium’s case law on media freedom and independence.

 

Article 19 of the Belgian Constitution reads as follows: "Freedom of worship, its public practice and freedom to demonstrate one’s opinions on all matters are guaranteed, but offences committed when this freedom is used may be punished."

 

This article is a general provision safeguarding the freedom of expression, albeit that offences committed when using this freedom are punishable (e.g. cases of defamation, etc.).

 

Article 25 of the Belgian Constitution reads: "The press is free; censorship can never be introduced; no security can be demanded from authors, publishers or printers.

When the author is known and resident in Belgium, neither the publisher, the printer nor the distributor can be prosecuted."

 

This article specifically safeguards the freedom of the press and prohibits censorship. On the interpretation of the concept of the 'press' in the Belgian Constitution, read my separate blog post. In sum, there is a lot of discussion in Belgium on whether the constitutional freedom of the press applies only to the written press, or also to more contemporary forms of media such as audiovisual and internet media. The discussion also centers on the question whether the constitutional protection of a free press applies only to prior censorship (and not for instance once there has been some kind of dissemination). In practical terms, this is an important discussion in court cases where newspapers or magazines are taken out of distribution or where television or radio programs are prohibited from broadcasting by judges (for instance, in urgent-application procedures to avoid damage to one's reputation, privacy, etc.). For more information on the discussion whether article 25 of the Belgian Constitution applies only to actions of prior censorship, read my previous blog post (especially concerning the case law of the European Court of Human Rights against Belgium, such as the cases of Leempoel & Ciné Revue v Belgium and RTBF v Belgium).

 

Article 25 of the Belgian Constitution 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; [1] see my previous blog post for more information on the principle of stepped liability).

 

Article 150 of the Belgian Constitution reads as follows: "A jury is sworn in for all criminal matters, as well as for political and press offences, with the exception of press offences motivated by racism or xenophobia."

 

This article 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,[2] 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.[3]  Following two recent decision of the Belgian Court of Cassation of 2012, 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.[4]  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.[5] On the interpretation of the concept of the 'press' in the Belgian Constitution, read my separate blog post.

 

Finally, article 32 of the Belgian Constitution holds the following: "Everyone has the right to consult any administrative document and to obtain a copy, except in the cases and conditions stipulated by the laws, federate laws or rules referred to in Article 134."

 

This article is a provision on open governance, stating 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).[6]

 

Main Belgian acts on audio-visual media

 

Structural media regulations in Belgium almost exclusively target audiovisual broadcasting. The main broadcasting act for the Flemish Community is the Act of 27 March 2009 on radio and television broadcasting (hereafter ‘FLBA’).[7] 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’)[8] and the Act of 14 July 1997 on the Belgian radio and television of the French Community (hereafter ‘RTBF Act’).[9] 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 and regulations for the public broadcasters are the management contracts between the public broadcasters and the Communities and the anti-discrimination acts of 10 May 2007, which limit the freedom of expression if this amounts to unlawful discrimination.

 

Competition and ownership regulations for Belgian audiovisual media

 

The main competition and ownership rules for Belgian radio and television are to be found in these broadcasting acts.[10]  The general Competition Act of 10 June 2006[11] and relevant EU laws also apply to the media sector. There are no special rules for newspapers or magazines concerning ownership, concentration or protection of pluralism, nor are there obligations for newspapers or magazines to provide transparency about their capital structure, shareholders or owners. For more information on competition and ownership rules applicable to the Belgian media sector, visit my previous blog post.

 

License and declaration rules for Belgian audiovisual media

 

These broadcasting acts also contain the main license and declaration rules for Belgian audiovisual media.

In Flanders, terrestrial radio broadcasters need to obtain a licence in order to broadcast (Art. 134 FLBA). If radio broadcasters only transmit via cable or Internet, they simply need to make a declaration to the regulator VRM (Art. 147 FLBA). Television broadcasters need to obtain a licence only if they broadcast regional television (Art. 166 FLBA); for all other types of television broadcasting, broadcasters are only required to make a declaration to the VRM (Art. 161 FLBA).

In the French Community of Belgium, editors of terrestrial radio services need to obtain a licence, which entitles them to broadcast using a designated frequency. It is the government that designs the allocation scheme and opens calls for applications. Operators that provide radio services transmitted by other means (cable or Internet) are only required to make a declaration to the regulator CSA. This is also the case for editors of television services that intend to broadcast in the French Community.[12]

 

Belgian regulators for the audiovisual media

 

The main regulatory bodies responsible for monitoring compliance with audiovisual regulations are the ‘Vlaamse Regulator voor de Media’ (VRM) for the Flemish Community and the ‘Conseil Supérieur de l'Audiovisuel’ (CSA) for the French Community. They are to a large degree independent of the Community Governments. The Belgian Institute for Postal and Telecommunication Services (BIPT), at the federal level, is the regulator for telecommunications and postal services.

 

As a result of the convergence of the telecommunications and audiovisual markets, the VRM and the CSA work together with the BIPT in a Conference of Regulators for the sector of Electronic Communications (CRC).

 

The responsibilities of the regulators are mainly to monitor compliance with audiovisual media regulations, especially related to the rules on advertising, the protection of minors, the protection of consumers and the impartiality of information. The VRM and the CSA are especially responsible for making decisions in cases of conflicts and claims related to compliance with audiovisual media regulations. The CSA and the VRM also play a major role in monitoring the competition in the Belgian media market, for instance by publishing information on the ownership and the degree of concentration of the media. As far as the written press is concerned, they are only responsible for reporting on the degree of concentration in the market (incidentally), not for monitoring compliance with the regulations. Finally, they manage the process of granting licences for terrestrial audiovisual broadcasting (it are the governments of the Flemish Community and the French Community that design the allocation schemes and open the calls for applicants). Before taking measures with a potential significant impact on the market, the VRM and the CSA usually organise sector and public consultation rounds to collect information from stakeholders. The Belgian Council of State, the highest administrative tribunal, is responsible for reviewing decisions of the media regulators.

 

Self-regulation for journalism ethics

 

The main self-regulatory organisations for the journalistic profession are the Dutch-language 'Raad Voor De Journalistiek' (Council for Journalism) (RVDJ) and the French-language 'Conseil de Déontologie Journalistique' (Council for Journalistic Deontology) (CDJ). Their main tasks are to formulate rules for journalism ethics and ensure their effective application. These organisations have a mixed character in the sense that they are common to all types of media outlets and that their members consist of both journalists and publishers (and to a limited degree, civil society). The policy of the RVDJ and the CDJ is to first try and settle disputes through mediation between the parties. If mediation is unsuccessful, they deliver a non-binding decision on the subject, but cannot compel parties to observe these decisions. Their power lies more in their pragmatism, in the publicity provided by their decisions and opinions and in their widely accepted moral authority. The RVDJ and the CDJ are co-financed by the publishers’ and the journalists’ associations. However, in reality, the Community governments sponsor the journalists’ associations for their contribution to the RVDJ and the CDJ.

 

The liability of journalists for defamation and breach of privacy under Belgian media law

 

Belgian courts have quite often been called upon to judge whether a newspaper article or television program breached particular rights of third parties, such as in defamation cases and cases where the privacy of third parties was at stake. As applied to the civil liability of journalists, courts construct the duty of care of journalists to imply that a journalist should pursue the truth, should not use unnecessarily or excessively hurtful words and should respect personal rights such as the right to privacy. As such, the general lines in case law show that civil courts tend to condemn inaccurate or incorrect imputations where there is an obvious lack of evidence; unnecessarily or excessively hurtful words with the sole intention to damage; and breaches to the privacy or other personal rights of individuals.

 

To learn more about the liability of journalists for defamation and breach of privacy under Belgian media law, check out my previous blog post on this topic.

 

The protection of journalistic sources in Belgium

 

The new Act on the Protection of Journalistic Sources was enacted on 7 April 2005.[13] The Act substantially reduces the risk of journalists seeing their sources disclosed. Under Article 4 of the Act, journalists and editorial staff can only be forced by a judge to disclose information sources if these are of a nature to prevent crimes that pose a serious threat to the physical integrity of one or more persons, and if the following two conditions are cumulatively fulfilled: (1) the information is of crucial importance for preventing such crimes and (2) the information cannot be obtained by any other means. Under Article 5, the same conditions apply to investigative measures (searches, seizures, telephone tapping, etc.) taken with respect to journalistic sources.

 

The Act gives a broad definition of the journalists and editorial staff who are protected by it, and an equally broad definition of the type of information it protects.[14] Following a decision of the Constitutional Court, the Act covers all individuals who exercise an informative activity, whether or not they are professional journalists (for instance, the protection includes bloggers).[15]

 

For more background information on the Belgian Act on the Protection of Journalistic Sources, visit my separate blog post on freedom of expression and freedom of the press in Belgian media law.

 

Advertising rules for Belgian media

 

Commercial advertising is largely regulated by the Belgian Federal Act on Market Practices and Consumer Protection of 6 April 2010.[16] This Act stipulates that the use of editorial content in the media, for which the advertiser has paid, to advertise a product, when this is not made clear to the consumer, constitutes illegal misleading advertising.[17]

 

Other legislation and regulation on commercial advertising in the media almost exclusively focuses on the audiovisual media. The FLBA (Flemish Act of 27 March 2009 on radio and television broadcasting)[18] and the FRBA (French-Community Act of 27 February 2003 on audiovisual media services, modified by the Act of 5 February 2009)[19] contain specific regulations for advertising on radio and television,[20] where the ‘golden rule’ is that advertising should be clearly identifiable as commercial information and distinguishable from news information.[21] This rule is also the basic rule in most ethical codes and internal operational charters of the audiovisual broadcasters. There are special rules for commercial communication directed at minors,[22] for certain products (such as a general prohibition on advertisements for tobacco, weapons, etc.; and special rules on advertisements for alcohol and certain medicines) and for certain types of advertising (such as teleshopping).[23]

 

In particular, there is specific legislation with regard to those forms of advertisement that can cause confusion based on the commercial character of the information or its origin, such as with regard to ‘product placement’[24] and ‘sponsorship’.[25]

 

As concerns ‘product placement’, Flemish broadcasters are bound by law to show a logo (‘PP’) on the television screen to indicate that a program is financed with product placement.[26] For French-language audiovisual media, the regulator CSA also recommends the use of a ‘PP’ logo on the screen to indicate the use of product placement to the public (though this recommendation does not have the force of law).[27]

 

Legislation on ‘sponsorship’ stresses in particular that the content and programming should not be influenced by the sponsor so that responsibility and editorial independence should not be affected.[28] Viewers and listeners should be clearly informed of the sponsorship, by indicating the name, logo or symbol of the sponsor at the start, during and/or at the end of the program.[29] There is a general prohibition against sponsoring news bulletins and other information-related programs.[30]

 

The regulators VRM and the CSA have, in recent years, been called upon frequently to decide on the legality of commercial practices such as ‘product placement’ and ‘sponsorship’ and have developed their own case law on these topics. In their case law, the VRM and the CSA take as main criterion the principle of strict separation between editorial content and commercial information, which is laid down in the FLBA and FRBA. In practice, it is not always easy to classify an advertisement in one or another legal category (e.g. the line between product placement or sponsorship on the one hand and surreptitious advertising on the other hand is not always easy to draw)

 

For more information on political advertising according to Belgian law, visit my previous blog post.

 

Right of reply under Belgian law

 

The Belgian Act of 23 June 1961 on the right of reply grants a broad right of reply to any individual or corporation named or implicitly referred to in a newspaper or a magazine, and a more limited right of reply to any individual or corporation named or implicitly referred to in an audiovisual broadcasting (i.e., radio or television). The Act on the right of reply does not apply to electronic versions of newspapers and other internet-based media. Several legislative proposals aimed at applying similar rules to electronic media have failed so far, but journalistic self-regulation to some extent covers an electronic right of reply.

 

In other words, there are distinct rules applicable to the right of reply depending on the type of media outlet. In the case of audiovisual broadcasts, the claimant must prove a personal interest in the reply and the right of reply consists only in the right to rectify incorrect facts relating to the claimant and to reply to facts or declarations that touch the honour or reputation of the claimant (for media of the written press, these restrictions do not apply and a broader right of reply exists). For Flemish audiovisual media (radio and television), distinct but similar rules apply (Articles 103-112 of the Flemish Act of 27 March 2009 on radio and television broadcasting). In practice, this means that the articles on the right of reply in the (federal) Act of 23 June 1961 are no longer applicable in Flanders, but remain applicable in the rest of the country (i.e., in the French Community and in the German-speaking Community of Belgium). However, the Flemish rules are very much similar to the rules in the Act of 1961.

 

The right of reply should always be free of charge and refusal of the right of reply may lead to penal sanctions. The right of reply as protected by Belgian law offers one the possibility to react within a short timeframe to an article or program, in the same media outlet that published the first article or program, without costs and without the need to start a legal procedure in court. However, in practice, it is not uncommon that a request to publish a reply is met with reluctance on the part of the publishers. In case a right of reply is refused or is published in a way that does not conform to the legislation, a publisher may be sentenced to payment of a fine, of an indemnification for damages, and/or of non-compliance penalties (which are often much higher than the fines, and in practice are the most convincing tool to ensure compliance).

 

 

For more information on Belgian media law, you are welcome to contact me. Also, if you need professional advice from a Belgian media law attorney (lawyer), I will be glad to be of help.

 

Author: Bart Van Besien

 

Finnian & Columba

Belgium

bart@finnian.be

Attorney - Lawyer - Belgium - European Union (E.U.)

Specialised in media law and intellectual property law (copyright, trademarks, patents, domain names, etc.).