Media Freedom in Belgium
The most important of our freedoms
"Vive De Potter', the Belgians who fought against the Dutch army in the streets of Brussels in 1830 shouted the name of Louis De Potter. He was a leading journalist who had been banished to France by the government because his newspaper advocated democracy, social equality and freedom of expression. The 'Belgian Revolution' was born - among other things - out of protest against censorship and the persecution of journalists.
By Karl van den Broeck
The Constitution, drawn up in 1831, was very clear: 'The printing press is free; censorship can never be introduced'. This law was very progressive at the time and would not be adopted by other countries until years later. That is why writers and thinkers like Karl Marx, Victor Hugo, Charles Baudelaire and Multatuli wrote their most critical works in Brussels.
In 2005, Parliament passed a strict law protecting journalists' sources. That protection is almost absolute. No one is allowed to ask journalists about their sources except when public safety is at risk.
(Julian Assange would have been better off fleeing to Belgium than to the Ecuadorian embassy).
Today, journalists in Belgium can still do their work relatively undisturbed (the biggest threat is the economic context, not government censorship). Belgium ranks twelfth in the World Press Freedom Index . That is a drop of three places.
In recent years it has become clear that legal protection can be undermined by the misuse of legal procedures (Strategic Lawsuit Againt Public Participation - SLAPP).
Apache, the independent news site for investigative journalism (of which I am chief editor), has had to defend itself against virulent attacks by an Antwerp property developer for three years now. Since 2013, Apache has been writing about the close relationship between this man, Erik Van der Paal, and the Antwerp city council under the leadership of mayor Bart De Wever. Van der Paal's firm, Land Invest Group, was able to close a whole series of lucrative contacts with Antwerp, against the advice of the competent authorities. Apache was first subpoenaed by Land Invest Group (and Bart De Wever's former head of cabinet) in 2017. This was a civil procedure for slander and defamation. In this way, the other party did not have to prove that Apache had published fake news (quod non), but that the reporting had caused damage to the company. The court ruled that Apache had carefully followed the deontological rules and that there was no question of defamation. The claims for damages, totaling EUR 350 000, were rejected.
In November 2017, Erik Van der Paal filed another complaint against Apache. A few days earlier, we had posted a video showing how almost the entire aldermen’s college of Antwerp was present at his birthday party. This was odd, to say the least, since at that time Land Invest Group was negotiating with the city about the allocation of an important building project to Van der Paal's group. Apache therefore wanted to investigate possible blurring of standards.
This time the charge was: stalking and invasion of privacy. If the court follows this line of reasoning, then the constitutional provision that press crimes must be dealt with before a jury will be circumvented ... and undercover journalism will be curbed.
In April 2019, Ogeo Fund, one of the shareholders of Land Invest Group, filed a complaint against a journalist from Apache and a colleague from LeVif/L'Express. Together they had revealed that the directors and executives of Land Invest Group had enriched themselves. Ogeo claimed as much as EUR 500,000, but withdrew the complaint even before the court case started.
A final complaint relates to an article from September 2020 which showed that Erik Van der Paal (who in the meantime has sold Land Invest Group) is once again active as a lobbyist in the real estate sector. This time, Van der Paal used a legal ‘atomic bomb’. He had Apache convicted in preliminary relief proceedings by 'unilateral petition'. This is an urgent procedure in which the other party is not heard. Apache had to take the article offline on pain of a penalty of EUR 5,000 per day. Outright censorship. Apache was forced to comply with the one-month judgment. This was followed procedure on the merits, but the case will not be heard definitively until 2021. In the meantime, the article has been placed online again. But Van der Paal also files a criminal charge against Apache. This complaint has to be investigated before the civil suit can go to trial. This can take years.
In the meantime, Apache is not sitting on its hands. In December 2019, the Flemish Association of Journalists (VVJ) announced that it would lodge a complaint (on behalf of Apache) against Land Invest Group. Apache has collected evidence showing that the company used private investigators to shadow journalists in 2017. This may be in breach of the law on the secrecy of sources and the law on private investigators.
This barrage of lawsuits by one man against a small independent medium such as Apache is causing Belgium a great deal of international damage. The Council of Europe has already asked Belgium five times what measures it will take to curb the abuse of legal proceedings against journalists. Belgium has not yet replied.
In the 'Report on the Rule of Law 2020' that European Commissioner Didier Reynders published in September, Belgium gets good points. However, explicit reference is made to the use of private detectives against Apache journalists. On November 25 the European Parliament adopted an amendment of Belgian MEP Kris Peeters (EPP) that (if member states agree) should makes it impossible for private to follow journalists, as is already the case for trade unionists.
Apache is doing everything possible to ensure that this flow of legal proceedings does not jeopardise the functioning of the editorial staff. The time now spent preparing for legal proceedings cannot be used for investigative journalism. Moreover, it also costs a great deal of money. Even if the court cases are won, lawyers' fees will still have to be paid. A serious problem in this respect is that journalists in Belgium can hardly get insurance cover for professional risks anymore. This is a direct consequence of Van der Paal's complaints. Apache is pleased with the support of a committee of sympathisers that wants to raise money so that we can continue the legal battle.
Apache has never lost a court case or a procedure before the Board of Deontology of the Council of Journalists. Erik Van der Paal has never been able to indicate a factual inaccuracy in our reporting. Most of the time he does not even answer when asked to comment on our articles or makes use of his right of reply. With his unsubstantiated complaints, he not only undermines Apache's operation, but also the freedom of the press on which Belgian democracy is based.
On 24 May 2017, Apache received the Ark Prize of Free Speech, one of the most important awards for journalists and writers in Flanders. The jury praised Apache because we "emphatically oppose the intimidation that undermines the mission of the fourth power: well-founded revelation journalism and double-checked facts".
The award strengthened our conviction to continue to do our bit in defence of what the authors of the Belgian Constitution called "the most important of our freedoms": freedom of expression and freedom of the press.