Case Summary and Outcome

A Belgian First Instance Court convicted an influencer of electronic stalking and “doxing” and slander and defamation. The influencer had uploaded a video on YouTube in response to a controversial case in which members of a fraternity were given lenient sentences for their involvement in a death of a student during a hazing ritual. The influencer’s video named some of the fraternity members and identified a restaurant owned by one former fraternity member. That former member and his parents then subpoenaed the influencer. The Court rejected the influencer’s free speech defence and sentenced him to three months of imprisonment on probation, an 800 euro fine and a provisional civil compensation of 20,000 euros for defaming the restaurant. 

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Facts

On May 31, 2023, a Belgian YouTuber, Nathan Vandergunst, better known as Acid, shared an eleven-minute YouTube-video in which he mentioned five members of the “Reuzegom” fraternity by name. Reuzegom was an elite student fraternity that came under public scrutiny after their brutal annual hazing ritual resulted in the death of a young student, Sanda Dia, in 2018. In June 2023, eighteen members of the fraternity were found guilty of involuntary manslaughter, degrading treatment and violations of the animal welfare law, for which they were given between 200 and 300 hours of community service sentences and a fine of 400 euros. 

The sentences and the failures of news outlets to disclose the names of the accused sparked public outrage, both  in Belgium and abroad, and there were protests and calls for a parliamentary investigation. 

Acid revealed the identities of some Reuzegom members in his video and stated that his goal was “to expose people”. In the video, he said that he would pick his five “favorite” members of the fraternity and “tell people how dark they are; what they are doing now; where they are and how their life is going.” He considered their punishments too lenient and said that he wanted to see them “canceled”. The video was viewed hundreds of thousands of times before it was removed by YouTube for violating their harassment policy. 

One of the Reuzegom-members targeted by Acid was Mr. X – a man who had not been convicted for Dia’s death and had not been present at the hazing ritual. In the video, Acid claimed he did not just want to look at Dia’s death but at the “bigger picture”, and that Mr. X, as ex-President of the fraternity, had helped shape the hazing ritual and allegedly instructed the present members on WhatsApp to delete some potentially incriminating evidence after Dia died. Acid also claimed that it was Mr. X’s  idea to not apologize publicly for the death of Dia because it would be an admission of guilt. Acid said that Mr. X had “stayed in the shadows for too long” and so he listed Mr. X’s full name and read aloud his online CV which included that he was then a parliamentary assistant working for the N-VA, a right-wing Belgian political party.

In his video, Acid provided some information about Mr. X’s social background, and mentioned Mr. X’s parents and the restaurant they owned in Antwerp. He added the restaurant’s webpage and told his followers, “the more you know…” This led to “a full-blown smear campaign against the restaurant, with a flood of false, defamatory reviews, fake reservations, hate mail, and hostile phone calls”. [p. 15]

Acid later uploaded a slightly edited version of the video on YouTube, which was not removed. This version – which is just over a minute shorter than the original – does not mention Mr. X’s parents or their restaurant. 

After the Public Prosecutor’s Office did not open a criminal investigation against Acid, Mr. X and his parents’ restaurant, nv DIMA, subpoenaed Acid directly before the First Instance Court of Bruges for electronic stalking, slander and defamation, and violations of the law around sharing personal data online.

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Decision Overview

Judge Gheeraert delivered the judgment of the First Instance Court of Bruges. The central issue for the Court’s determination was whether Acid’s video amounted to electronic stalking of Mr. X and his parents.

Mr X, his parents, and their restaurant’s subpoena was redacted by the judge, who only stated: “The civil parties essentially claim that on May 31, 2023, a video titled ‘My Top 5 Reuzegommers’ was posted on the YouTube account belonging to the accused.” The judge also redacted a transcript of the video that would have included the defamatory language used by Acid. [p. 8]

Acid did not deny the existence or sharing of the video message, but argued that his speech should be considered satire. He requested that the Reuzegom file (or at least the police reports related to Mr. X) be added to the current case in order to “clarify [Mr. X’’s] role in the occurrence of the fatal events in the Reuzegom case and in the subsequent destruction of evidence, as well as to provide insight into [Mr. X’s] personality and disposition.” [p. 10] Acid submitted that he should be exonerated, as the Public Prosecutor’s Office chose not to initiate a criminal investigation against him and that the procedure of “direct subpoena by the civil party” violated his right to a fair trial under Article 6 of the European Charter of Human Rights. [p. 10]

The Court confirmed it was competent to rule upon the matter and declared the civil parties’ claim admissible.

Before reviewing the criminal charges made against Acid, the Court gave a brief overview of “the principle of freedom of expression and its limitations”. [p. 11-12] With reference to the European Court of Human Rights case of Sanchez v. France, it defined this freedom as “one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment”, explained that it is not restricted only “to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb,” and that “the need for any restrictions must be established convincingly”. [p. 11] The Court stressed that the exceptions to the right are mentioned in Article 10 of the European Convention of Human Rights and that Article 19 of the Belgian Constitution explicitly refers to the limitation of freedom of expression “by punishing the crimes committed in the exercise of [this freedom]”. [p. 11]

The Court referred to some of the “numerous examples” of limitations to freedom of expression by penal law, in national and European jurisprudence (for example, Sanchez v. France). [p. 11] It stressed that the Court does not differentiate between “legitimate” and “non-legitimate” hateful expressions, and said that “[c]laiming that hate speech had a ‘legitimate’ reasoning – which is not proven in this case – cannot justify any criminal acts. The rule of law, which forms an integral part of a democratic society, prohibits any vigilantism”. [p. 12] The Court acknowledged that the exercise of the right to freedom of expression can interfere with the exercise of other fundamental freedoms, such as the right to privacy and family life, and that it is the Court’s responsibility to find a “careful balance” between those fundamental rights when they come into conflict. [p. 12] The Court emphasized that all the existing freedom of expression principles also apply to online freedom of expression and social media.

Examining the facts of the case, the Court stressed that, on his own version, it was Acid’s goal “to expose people”, and that “[Acid] set the tone of a tirade of “online shaming (the online public humiliation, ridicule, bullying or harassment of an individual or organization) and doxing” (the unauthorized online publication of an individual’s or organization’s personal data as an act of revenge).” [p. 13] It added that Acid “eagerly refers” to Mr. X’s  “attributed social status.” [p. 13] 

The Court found that Acid’s conduct met the criteria for the crime of electronic stalking, as defined by Article 442bis of the Belgian Penal Code, as he “was perfectly able, exercising his right to freedom of expression, to discuss the social issue he intended, without having to disclose personal data (…) and thereby exposing [Mr. X] to public opinion (…).” [p. 13] The Court stressed that the fact that Mr. X’s personal data may have been accessible elsewhere online did not affect this and found that Acid’s stating his wish to “expose people, tell them how dark they are and what they are doing now”, proved his malicious intent and that Acid knew or should have known that his “acts would have seriously disrupted the peace or tranquility of the civil party, when he openly admitted that this was his goal.” [p. 13] It also noted that the crime of stalking can be completed by a singular act, which by its nature causes repetitive harm or consequences. [p. 14]

In response to Acid’s argument that his speech was satire, the Court noted that he had not mentioned satire during a television interview he had given on June 5, 2023, nor in his second YouTube video  about the subject on June 8, 2023. It held that claiming satire at this stage was “a mere post factum-argument, which need not be further addressed”. [p. 13] 

The Court stressed that in the online environment the “right to be forgotten” cannot be sufficiently guaranteed and noted “the extremely damaging and malicious nature of such video messages, which can resurface years later and bring renewed harm to its victims”. [p. 13-14] 

The Court sentenced Acid to three months imprisonment on probation and a criminal fine of 800 euros. [p. 16] The Court acknowledged that it would have preferred to assign community service instead of imprisonment, “considering [Acid’s] youthful age” and the Judge’s desire “to introduce the accused to labor in the non-virtual world.” [p. 14] However, as Acid had not requested the option of community service, it could not be imposed by the Court [p. 14]. 

The Court took various factors into account when determining its punishment: “(i) the seriousness of the facts; (ii) [Acid’s] manifest absence of respect for social, moral and economic values, others’ psychological integrity in particular; (iii) [his] blind and addictive drive for followers and views on social platforms for the purpose of attention and profit, resulting in the abuse of the acquired reach, initiation of completely thoughtless “stunts” and incitement to hatred after the personal data of the first and second civil parties were made public ; [and] (iv.) the damage caused to the civil parties.” [p. 14] As a mitigating circumstance, the Court considered Acid’s clean criminal record. 

The Court also ruled on the civil matters in this criminal case, and accepted that there was a causal link between the crime and the civil damages caused by it. The Court appointed an expert to determine the final claim for damages and awarded a provisional claim of 20,000 euros to the restaurant. [p. 17]

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