The principle of 'stepped liability' and its implications for the liability of journalists working in Belgium

Article 25 of the Belgian Constitution does not only stipulate that the press is free and that (prior) censorship is not allowed; it also establishes a system of stepped liability for criminal prosecutions and civil liability.[1] Under this system, in principle only the author of a work, and not its publisher, printer or distributor can be prosecuted in Belgium. Only if the author is not known or not resident in Belgium, will the other players come into the picture (in the order listed above). Sadly, there is no scientific research on the impact of this system of stepped liability on freedom of expression.

Practical implications of 'stepped liability' for journalists in Belgium

Although the shelter offered to publishers, printers and distributors aims to prevent censorship ‘from within’, the practical effect is that individual journalists are largely unprotected from criminal and civil liability claims. In this sense, journalists, even if they work under a contract of employment, are worse off than other employees, because they cannot invoke protective legislation such as Article 1384 of the Civil Code or Article 18 of the Act on Employment Contracts, [2] which offer broad protection for employees against liability claims for damage which they cause to their employer or to others in the performance of their employment contract.[3] This seems at odds with the way most journalists work today (i.e. they are often employees who work in collaboration with other journalists and under the supervision of editors, etc.) and one may wonder whether it would not be better to shift the responsibility from the individual journalists to those who set the scene for the journalistic work. In practice, courts often seek to implicate the publishers indirectly by identifying a separate fault by the publisher (as independent from the fault committed by the journalist), such as in the choice of the title, format, placement of the article, etc.

'Stepped liability' and audiovisual media (radio and television)

There is no unanimity on the question of whether the system of stepped liability applies to audiovisual media. If one accepts that the system should be limited to print media, this means that a breach of criminal legislation by audiovisual media can lead to a condemnation of the journalists and of the responsible editor in chief. In civil procedures, the liability will most often be situated at the level of the broadcast organisations, rather than the individual journalists or editors.

'Stepped liability' and internet media

Furthermore, the application of the principle of stepped liability to internet media raises the problem of how to translate the legal concepts of ‘publisher’, ‘printer’ and ‘distributor’ to Internet media such as forums, blogs or other Web 2.0 applications. In the context of the Internet, one must also take into account the provisions on the liability of intermediary service providers imposed by the European Directive on Electronic Commerce of 8 June 2000 [4] and the Belgian Act on Electronic Commerce of 11 March 2003, [5] and in particular the exemptions of liability for services of ‘mere conduit’, ‘caching’ and ‘hosting’.[6] If one accepts that the system of stepped liability applies to Internet media, [7] the question that is then raised is how to treat, for instance, defamatory messages on an Internet forum of a newspaper. Under Article 25 of the Constitution, the newspaper publisher will normally be liable as a ‘publisher’ if the author of the messages cannot be found (which is often the case). However, the ‘publisher’ will often be exonerated as a ‘hosting provider’ under the legislation on electronic commerce. As yet, it is unclear how these different legislations should be brought in line with one another (for more information, see Van Besien, B., "La responsabilité des gestionnaires de forums de discussion 'non commerciaux'", Auteurs & Media 2010/5-6, 562-568). Some authors see a trend in case law to treat operators of Web 2.0 platforms as hosting providers, rather than as publishers, provided that they do not actively select the users/authors and do not actively interfere with the content of the opinions published (e.g. Werkers, E., "De omgang van de pers met gebruikersinhouden: 'de bluts met de buil'?", Auteurs & Media 2010/1, 21).

Journalistic self-regulation (journalism ethics)

These issues have been covered by journalistic self-regulation as well. In 2009, the RVDJ ('Raad voor de Journalistiek') published a recommendation on how the media should handle user-generated content.[8] In this recommendation, the RVDJ sees it as an ethical duty of the media to always clearly distinguish user-generated content from its own content and to limit the publication of anonymous contributions to exceptional circumstances.[9] The RVDJ distinguishes factual content provided by users from opinions provided by users. In the case of factual content, the RVDJ mentions that journalists have a duty to properly check their sources. For the publication of users’ opinions, the RVDJ on the one hand identifies the author as the first responsible person, but on the other hand adds that the medium that publishes the opinion has a responsibility to properly manage its forum. The RVDJ suggests that the media should for instance pre-monitor, actively moderate or post-monitor their discussion forums (forum monitoring). This position is difficult to reconcile with the exonerations provided by Article 25 of the Constitution and by the legislation on electronic commerce, following which intermediaries are encouraged to take a neutral stance in order to benefit from exoneration.

For more information on the liability of journalists for defamation and breach of privacy, visit my separate blog post on this issue.