Constitutional protection and policy considerations
Rise of the online press
Recent decisions

In two recent decisions(1) the Supreme Court held that offences committed online, such as libel in online publications, are 'press offences' for the purposes of Belgian law. The main effect of these decisions is that online press offences will no longer be criminally prosecuted (with the exception of breaches of the law on racist publications). Another possible consequence is that publishers of online publications are likely to benefit from a more favourable liability regime in both criminal and civil cases.

Constitutional protection and policy considerations

A 'press offence' has been defined by case law as "an unlawful expression of opinion in a text that is reproduced by a printing press or a similar process". This definition does not cover all types of offence committed in the press. For example, copyright infringement or publication of a photo that infringes a celebrity's privacy is not considered a press offence, as it is not an "unlawful expression of opinion".

Under Article 150 of the Constitution, criminal prosecutions for press offences are heard before a jury. When the rule was included in the Constitution in 1831, it was considered that professional judges should not decide cases which, at that time, often involved political opinions.

However, jury proceedings may be initiated only by the Office of the Public Prosecutor and are subject to cumbersome procedures. As a result, they have been given low priority, which has resulted in something close to de facto immunity. The issue of relative priorities also explains why a specific exception to the provisions on jury trials was enacted for racist and xenophobic infringements, which are considered more important and need not be heard by a jury.

The Constitution also covers publishers' liability. Under Article 25(2), when a press offence is committed, a publisher may not be prosecuted if the author of the infringing publication is known and is domiciled in Belgium; instead, criminal proceedings may be brought only against the author. This exemption was originally intended to prevent publishers from exercising a form of censorship over authors for fear of being subject to criminal prosecution. Case law has confirmed that this exemption applies only to press offences, not to other types of offence committed in the press (eg, copyright infringement).

In 1996 the Supreme Court confirmed(2) that the Article 25 exemption also applies in civil cases. Publishers are therefore immune from criminal prosecution and civil claims brought on the basis that a publication contains "unlawful expressions of opinion" (ie, press offences), provided that the author of the infringing publication is known and domiciled in Belgium, although they can be held liable for their choice and use of images or headlines. Authors remain liable.

Rise of the online press

Since the late 1990s the growing importance of online publishing has prompted a debate about whether electronic publications are part of the printed press and therefore whether:

  • offences committed in online articles should be considered in jury trials; and
  • website publishers should enjoy the same exemption from liability as publishers of printed publications.

Recent decisions

In its recent decisions the court reiterated the definition of a 'press offence' and stated that digital distribution is a 'similar process' within the meaning of the definition. Therefore, criminal offences committed in online publications are press offences for the purposes of Article 150 of the Constitution. The court expressly stated that criminal cases regarding electronic publications should be heard before a jury.

In considering the exemption of liability for publishers in criminal and civil proceedings, the court stopped short of expressly confirming whether the publisher of a website may enjoy immunity under Article 25(2). However, the fact that the court found the digital distribution process to be similar to printing can be seen as a strong argument in favour of the application of Article 25(2) to the online press.

For further information on this topic please contact Olivier Sasserath or Herman Croux at Marx Van Ranst Vermeersch & Partners by telephone (+32 2 285 01 00), fax (+32 2 230 33 39) or email ([email protected] or [email protected]).


(1) Cass, P 11.0855 N/2 and Cass, P 11.1374 N/1, March 6 2012.

(2) Criel v Lousberg, Cass RG C95.0377 F, May 31 2006.