This blog was originally published by Inforrm’s Blog and is reproduced with permission and thanks.

It is rare in Belgium for people who take part in the public debate, such as journalists and academics, to have to defend themselves in criminal court in a private prosecution for defamation. Three times in a row, this type of criminal procedure has recently proven to have little or no chance of success and mainly serves to legally harass the defendant.

A recent judgment acquitting virologist Marc Van Ranst of criminal defamation therefore condemned the plaintiff for vexatious and frivolous litigation.

Earlier this year, the virologist Prof. Marc van Ranst (University of Leuven) was summoned before the criminal court in Mechelen because of some critical remarks in a newspaper interview and in a message on Twitter addressed to Willem Engel, the founder of the Dutch anti-vax organisation Viruswaanzin (‘Virus Madness’, later renamed Viruswaarheid, ‘Virus truth’). Engel, represented in these proceedings by the Ghent lawyer Mr. Michael Verstraeten, argued that Van Ranst had called him an extreme right-winger, a swindler and a virus denier and that these public allegations were defamatory and therefore punishable under Article 443 of the Criminal Code.

In a judgment dated 9 September 2021, the court ruled that it had no jurisdiction because the indictment concerned a press offence, for which the assize court has exclusive jurisdiction pursuant to Article 150 of the Constitution and the relevant case law of the Supreme Court. Despite the strong argumentation in the judgment that it concerned a press offence that cannot be dealt with by the ordinary criminal court but only by the jury of the assize court, Willem Engel lodged an appeal. The Antwerp Court of Appeal is taking its time and will not hear the case until 2023.

The obstinate way in  which Willem Engel is pursuing these proceedings against Van Ranst shows the characteristics of a SLAPP (Strategic Litigation Against Public Participation), a form of abusive litigation that is also on the rise in other countries. Both within the European Union and the Council of Europe, initiatives are being prepared to curb this phenomenon. After all, SLAPPs are not only a form of abuse of justice, they also aim to damage the public debate, threaten the freedom of critical expression and thus also the basic principles of the rule of law and democracy.

According to a report commissioned by the European Parliament, a SLAPP is “a claim that arises from a defendant’s public participation on matters of public interest and which lacks legal merits, is manifestly unfounded, or is characterised by elements indicative of abuse of rights or of process laws, and therefore uses the judicial process for purposes other than genuinely asserting, vindicating or exercising a right”. SLAPPs are, therefore, a form of “judicial harassment”, usually directed against (investigative) journalists, members of campaign groups and academics participating in the public debate.

Until 10 January 2022 the European Commission is holding a public consultation on the issue of SLAPPs. The aim is to gather further evidence of the phenomenon and to provide an opportunity to all interested parties to give their views on the possible policy options and any other comment they may have on the initiative. The European Commission itself is working on legal and non-legal initiatives with the aim to better protect journalists and other ‘public watchdogs’ from abusive lawsuits and to secure the proper functioning of the checks and balances of a healthy democracy by protecting the public debate from undue interference.

No DEFAMATION

Another private prosecution with SLAPP characteristics was issued against the allegedly defamatory criticism of the Belgian organisation Viruswaanzin/Folie Virus of which Mr. Michael Verstraeten is the inspirer and spokesman. This time, Knack journalist Dirk Draulans and philosopher Prof. Johan Braeckman (Ghent University) were summoned because of a number of statements on television. According to Viruswaanzin, Draulans and Braeckman had defamed and damaged the association through their statements, which is why they not only insisted on Draulans and Braeckman being convicted under criminal law, but also claimed damages of almost €70,000.

In this case, the criminal court did have jurisdiction, because according to the case law of the Supreme Court, words spoken and expressions of opinion on television do not constitute a press offence within the meaning of Article 150 of the Constitution. According to the court, however, there was no question of defamation because the comments of Draulans and Braeckman were not of a nature “to offend anyone in his or her honour or to expose him or her to public contempt”. Therefore, Draulans and Braeckman went free and the criminal court of Ghent ordered Viruswaanzin to pay each of the accused parties a compensation for legal costs of €3,600 Remarkably, the court declared itself incompetent to take cognisance of the counterclaim filed by Draulans on account of vexatious and reckless litigation.

The judgment states that the court, as a criminal court, “is only competent to take cognisance of claims that are based on a proven crime. The counterclaim of the (…) defendant for aggravated and reckless conduct is based on a right of action against the directly suing party, arising from an alleged wrongful act by the directly suing party (art. 1382 Civil Code). However, this claimed right has no basis in any criminal offence that the directly suing party would have committed against the (…) defendant. Consequently, the court is not competent to take cognisance of this counterclaim (…)’.

VExAtioUS AND FRIVOLOUS

In stark contrast to the judgment of 11 October 2021 of the criminal court of Ghent, the criminal court of Mechelen did answer a counterclaim for vexatious and frivolous litigation in a judgment of 9 December 2021. In this case, the counterclaim was made by Professor Van Ranst in response to a new private prosecution by Willem Engel for alleged defamation. This time, Engel had taken offence at an interview with Van Ranst in VTM news. In that interview, Van Ranst had said that it was not “because Willem Engel does not like being called a virus denier that nobody should say that”. The court established that Van Ranst had only said that he did not agree that nobody should be allowed to call Engel a virus denier. Even if Van Ranst had called Willem Engel a virus denier, the court ruled that this was not defamation, because there was no factual allegation formulated against Engel and hence Article 443 of the Criminal Code was not applicable.

An important finding is that the criminal court considers itself competent to rule on Van Ranst’s counterclaim concerning the vexatious character and frivolity of the claim, and also confirms the vexatious and frivolous nature of the private prosecution. The judgment refers to Articles 159, 191 and 212 of the Code of Criminal Procedure, that give the criminal judge (respectively the police judge, the criminal  court and the court of appeal) the possibility to rule on the claims of the accused against the civil party for compensation of the damage that was caused to him by the prosecution. The judgment clarifies:

“When a party has the intention to cause prejudice to another party or when it exercises its right to sue in a manner that manifestly exceeds the limits of the normal exercise of that right by a thoughtful and careful person, proceedings are vexatious and frivolous in nature. The court shall decide, without prejudice, on the basis of the totality of the circumstances of the case, whether there has been an abuse of process”.

According to the court, Engel did not exercise his right to take legal action as a thoughtful and careful person and apparently had the intention to cause damage to Van Ranst. The court refers to a number of public statements by Engel that show the intimidating intent of these and other proceedings conducted by Engel against Van Ranst. Because of this negligent conduct of Engel, Van Ranst has suffered material damage (such as administrative costs, travel expenses and preparation time) as well as moral damage, in the form of damage to his reputation and the worry that accompanies legal proceedings. Van Ranst was awarded damages in the amount of 4,000 euros ex aequo et bono.

SLAPPS and direct subpoena

These three cases illustrate how the possibility of a private prosecution or direct subpoena can all too easily be abused to bring persons participating in the public debate before the criminal court. The defendant has to undergo the entire procedure, because Belgian legislation does not contain specific provisions regarding an accelerated settlement of SLAPPs and only provides for the possibility of compensation at the end of the procedure (Art. 1382 of the Civil Code), possibly, but only in civil cases, supplemented by a fine of  2,500 euro for vexatious and frivolous litigation (art. 780bis Code of Procedure). The judgment of the court of Mechelen of 9 December 2021, in contrast to the judgment of the court of Ghent of 11 October 2021, has the merit of accommodating the defendant at least partially, by establishing the vexatious and frivolous nature of the private prosecution and awarding the defendant damages pursuant to Article 191 of the Code of Criminal Procedure. That is something, but the legal basis is still shaky and clearly more is needed. For instance, it has been urged for some time that slander, defamation, insult and vilification (art. 443-451) should be removed from the Criminal Code, because cases of damage to reputation have been dealt with by the civil courts for decades under Article 1382 of the Civil Code.

Criminal prosecution for defamation has also repeatedly been judged by the ECtHR to be contrary to Article 10 ECHR, which guarantees freedom of expression and information. Another option is to abolish the possibility of private prosecutions for slander, defamation, insult or vilification. But also for civil procedures, thresholds must be built in and measures must be taken to curb the encroaching phenomenon of SLAPPs. The Belgian legislator really does not need to wait for a judgement by the ECtHR or a recommendation from the European Union or the Council of Europe to take effective measures against SLAPPs.

Dirk Voorhoof is affiliated with the Human Rights Centre UGent

Originally published (in Dutch, with some minor modifications) in De Juristenkrant 2021/440, p. 6-7, 22 December 2021