The limits of free speech

In Belgium, you are entitled to free speech. This means that you can say many things, even if others experience them as shocking, disturbing or hurtful. However, there are limits to this freedom of speech. And in fact, sometimes what you say or do is punishable by law. What happens if you cross the boundaries of free speech? Then you are committing a crime. A judge can convict you.

Find out where the boundaries of free speech are drawn. 

Incitement to discrimination, hate, violence or segregation* against others, in public, deliberately and for a specific reason

*Segregation means intentionally separating a group from our society, because the members of this group have a darker skin colour, for example.

What do these concepts mean?

Incitement to discrimination, hate, violence or segregation

‘Incitement to’ means encouraging, inviting, provoking or turning against something or someone.

Against others

The perpetrator encourages another person to deliberately target one or more other people. General critical remarks about, for example, political beliefs, religion or creed therefore do not fall within this category.

It is sufficient for the perpetrator to target a single person. But the target may also be multiple members of a group or community or the group or community as a whole.

In public

The definition of public is broad, specifically:

  • public gatherings or places;
  • a place that is not accessible to everyone, but for a number of people who have the right to gather there or to visit the place together;
  • any place where, in addition to the victim, witnesses are present.

Public also means:

  • paper or digital text, pictures or symbols that the perpetrator:
    • posts, distributes or sells;
    • offers for sale;
    • publicly exhibits.
  • Paper or digital texts that are not public but which the perpetrator sends or communicates to multiple people.

Example

The judge ruled that the following are public:

  • messages on non-public Facebook profile
  • statements made in a hospital room
  • an e-mail sent to multiple recipients

Deliberate

Deliberate means that the perpetrator intentionally “actively” incites discrimination, hate, violence or segregation. In other words, his goal is to discriminate, hate, commit violence or segregate. It is not necessary for this goal to be achieved.

For a specific reason

The Anti-Racism Law prohibits racism on grounds of:

  • (alleged) race
  • origin
  • skin colour
  • nationality
  • national or ethnic origin

The Antidiscrimination Law prohibits discrimination on grounds of:

  • age
  • birth
  • economic status
  • civil status
  • political conviction
  • trade union membership
  • sexual orientation
  • language
  • disability
  • social origin
  • religion or creed
  • physical or genetic characteristic
  • current or future state of health 

Examples

The judge convicted:

  • a man who shouted, at a demonstration: “All Muslims should unite and fight against the government and against Belgium. There should be a boycott against America and all those dogs should be burned to cries of Allah Akbar.”
  • football supporters who attacked a Turkish couple in a parking lot while shouting: “Mohammed, go back to Marrakesh, we don't want any Muslims in our country.” The football supporters also made the Nazi salute. One of them grabbed his genitals and said that this was the prophet Mohammed.

2. Disseminating ideas about racial superiority or racial hatred

The distributor must have effectively intended to incite hatred against a specific group.

Example

The judge convicted a man who had stuck stickers with far-right slogans such as “Our socialism is national” on road signs and on the windows of the museum at the Dossin barracks.

3. Belonging to or cooperating with a group or association that repeatedly expresses discrimination or segregation

A distinction can be made between two types of perpetrator:

  • the perpetrator who intentionally belongs to a group or association that repeatedly expresses discrimination or segregation in public, on one of the grounds covered by the anti-racism law;
  • the perpetrator who intentionally supports this group or association.

Example

The judge convicted a group who organised neo-Nazi concerts because they belonged to that group or supported them, by renting a venue and picking up performers at the airport, for example.

4. Negationism

A negationist is someone who publicly:

  • denies;
  • approves of;
  • grossly minimises;
  • OR seeks to justify

the genocide committed by the German Nazi regime during the Second World War. 

Example

The judge convicted a man because he wrote on a website that “he wants to bring back the gas chambers, enjoys the smell of roasting meat of burning Jews, would prefer to see Jews in the gas chamber and that Adolf was doing a good job.”

5. Written insults, abuse of communication tools & stalking

Written insults, abuse of communication tools and stalking are criminal offences. The perpetrator may have racist or discriminatory motives, but this is not always the case in such crimes.

However, in cases of stalking and written insults, the judge may issue more severe penalties if the perpetrator has racist or discriminatory motives. Unia can intervene if the perpetrator has racial or discriminatory motives.

What do these crimes involve?

Written insults

Written insults are paper or digital texts, pictures or symbols that are insulting. This does not include spoken insults, therefore.

Spoken insults are only punishable in specific cases, such as ‘defamation of the police’ or ‘defamation of the court’.

Example

The judge convicted a perpetrator who had written, in the stairwell of an apartment building, in black felt pen, the words “whore” and “niggers fuck niggers”. Along with the text, the perpetrator had drawn an arrow towards the victim's apartment.

Abuse of communication tools

Abuse of communication tools means that the perpetrator uses electronic communication tools to harass or harm the recipient. This can, for example, be an electronic network or electronic service.

Stalking

A stalker is a perpetrator who follows someone else and is well aware or should have been aware that this behaviour seriously disturbs the other person’s peace of mind.

6. Press offences

What is a press offence?

Sometimes crimes such as 'written insults' or 'incitement to hatred, discrimination or violence' are also press offences. This is the case if the perpetrator crosses the boundaries of free speech by means of open publications.

In the case of press offences, the perpetrator distributes his message via paper texts such as a newspaper, magazine or pamphlet. The Court of Cassation has now ruled that digital texts can also be regarded as press offences.

Which courts have competence?

Press offences must be brought before the Court of Assize. However, there is an important exception to this rule. Is the press offence racially motivated? Then the Criminal Court has competence.

Because a trial by jury in the Court of Assize is complicated and expensive, the judicial authorities do not prosecute press offences other than those that are racially motivated. This means that press offences concerning discrimination are not prosecuted.

Example

The spokesman for a radical Muslim organisation disseminated hate speech, both through a video on the Internet and on paper. The Internet videos targeted non-Muslims and a female politician. The written hate speech targeted homosexuals.

The criminal judge was able to convict the spokesman for the hateful videos, but not for the hateful writings. After all, videos do not constitute a press offence because there is no text. The hateful writings effectively constituted a press offence intended to discriminate against homosexuals. And the criminal court does not have competence for press offences concerning discrimination.

Who is liable?

Sometimes with press offences, there are multiple parties involved, such as the author, the printer, the publisher and the distributor. That is why the concept of a ‘chain of liability’ is applied. This means that if the author is known and lives in Belgium, he or she will be prosecuted and the other parties will not be. 

7. What can Unia do?

Have you been the victim of hate speech? Or have you witnessed it? Then you can report it to Unia.

Unia always favours freedom of speech and will only take legal action when absolutely necessary.

Dialogue

Unia combats hate and intolerance preferably through dialogue. That is why we invite you to react to racial or discriminatory statements.

Legal action

Only when the hate speech is systematically repeated or has a major impact can Unia decide to take legal action.

Would you like to learn more about our approach to hate speech?