Fencer successfully represents journalists in so-called SLAPP criminal proceedings leading to acquittal of charges of harassment and violation of privacy.

FACTS AND BACKGROUND

On 20 October 2017, a journalist from news website Apache used a hidden camera to record how nearly the entire Antwerp City Counsel gathered in front of a restaurant in Antwerp on a public road. The reason? The forty-fifth birthday of Erik Van der Paal, a real estate developer with several pending projects with the City of Antwerp. The gathering showed how political figures closely greeted Erik van der Paal.

According to Apache, these images illustrated the possible blurring of standards and the danger of too close links between politics and real estate companies.

Van der Paal for his part, was of the opinion that his privacy was invaded as he was filmed at the occasion of a private gathering and that he was thus harassed by Apache. He therefore filed a complaint with the criminal court.

THE DECISIONS

On 20 January 2021, the Antwerp Criminal Court ruled that the right to freedom of expression ought to prevail. There was neither harassment, nor a violation of privacy. The only relevant question was whether the images had a public interest. The answer to that was clearly “yes”.

Yesterday, on 9 June 2022, this ruling was confirmed by the Antwerp Court of Appeal in a thoroughly reasoned judgment. The Appeal Court found that Apache, in the context of its journalistic activities, had acted within the limits provided by the freedom of expression and in the interest of the democratic society.

Aside from the acquittal, the Court also ruled on the counterclaim brought by the journalists based on vexatious and reckless (appeal) proceedings. The Court of Appeal found that the appeal was indeed only lodged in an attempt to silence the journalists and Apache “to such an extent (financially) that it would cease to publish further news items that Erik Van Der Paal considered as unpleasant”. To this end, the Court also referred to the tsunami of legal proceedings that Mr Van Der Paal had initiated against Apache. The Court recognised that, as a result of the clearly baseless appeal, Apache had suffered “material damage due to the obstruction of its professional functioning, as well as moral damage due to the fact that it was kept in limbo for a much longer period of time with regard to the final decision and that its professional functioning, including its good name, was unfairly reprimanded”. Such damage was estimated ex aequo et bono at EUR 10,000. In addition, the Court also awarded increased procedural indemnities to cover the attorney fees the journalists had to bear throughout the criminal case. A copy of the complete decision can be found here.

THE IMPACT OF THE DECISION

The legal practices consequences of the decision are significant and extend beyond the attacked journalists of Apache.

After all, these proceedings could be seen as a typical example of a SLAPP, i.e. a “Strategic Lawsuit Against Public Participation”. In practice, a SLAPP relates to the attempts to silence journalists, exercising their fundamental right to freedom of speech and the guaranteeing of the public’s right to information. The goal of such a lawsuit is therefore not to actually win, yet mainly to silence and harass critics by forcing them to spend time, energy and money on defending themselves. This can be done by running up legal costs or by claiming exuberant damages.

In addition, the simple act of filing such proceedings often causes the attacked party to already censure itself in order to avoid further proceedings and additional costs. Talking about a “chilling effect”….

Until now, victims of such SLAPPs in Belgium have had very few options to oppose unjust lawsuits and complaints at an early stage, compelled to take their own defense in entirely baseless actions in lengthy and resource consuming proceedings instead. Although there are future plans for a (European) anti-SLAPP legislation (also see our article BELGIUM RANKS 11TH IN THE WORLD PRESS FREEDOM INDEX 2021 – SOMETHING TO BE PROUD OF? ), at present, the only counter-attack exists in the filing of a counterclaim for a vexatious and reckless lawsuit/appeal. Yet, such claims are typically only rarely granted.

The fact that the Antwerp Court of Appeal chose to award such damages is therefore not only a victory for Apache, but also for the freedom of speech in general. This judgment has as a consequence that the media can uphold its role as public watchdog.

Meanwhile, the civil party has lodged an appeal with the Supreme Court (Court of Cassation) against the Antwerp Court of Appeal judgment of 9 June 2022.The final word in this case may thus not have been said yet.

FENCER’s lawyers have frequently litigated high-profile cases on the freedom of speech, the right to reply, defamation claims and image rights. Moreover, they keep their finger on the pulse of new legislative developments. If you wish to obtain more information, please contact Paul Maeyaert or Caro Van Wichelen.