Are you permitted to disclose a conviction of your competitor?

Obtaining a favorable verdict against a competitor can feel like a victory you want to shout from the rooftops. The temptation is to share this news with your clientele and business associates. However, this is not without risk. Although a ruling is public, communication about it must be proportionate and in good faith. A ruling by the president of the Antwerp Enterprise Court, Antwerp Division of 8 January 2025, shows that a thoughtless communication can turn into a conviction for bad faith.

The facts: from victory to counterclaim

The case involved two competing companies in the insurance industry. A commercial company had been convicted in earlier proceedings of discrediting a professional federation. This conviction was based on a single e-mail to a potential customer.

The professional federation, the "winner" of the first case, asked the judge to order the publication of this judgment, which was denied. Thereupon, the federation decided to take matters into its own hands and sent a mailing to more than 2,000 recipients announcing the condemnation of its competitor. The condemned party then went to the injunction judge, arguing that this large-scale mailing, in turn, constituted an unfair market practice, more specifically defamation.

Enterprise court decision

The president of the enterprise court in Antwerp ruled that the professional federation was indeed guilty of defamation.

The president noted that while the federation was free to communicate about the earlier ruling, it had to do so within the bounds of good faith. Publicizing the condemnation to more than 2,000 members was considered "wholly disproportionate," since the original error involved only one e-mail to one customer. The president characterized the mailing as a "revenge exercise" that violated fair market practices.

However, the claim was declared unfounded insofar as it was based on unfair comparative advertising. After all, the mail did not compare the two parties' services, but only reported the conviction.

As a sanction, the judge ordered the professional federation to send a rectification to the same mailing list. In this new notice, the federation had to disclose that it itself had been convicted of defamation and had to attach the full first judgment.

Legal analysis and interpretation

This ruling is an important reminder of the scope of Article VI.104 of the Code of Economic Law (CEL), which prohibits any act contrary to fair market practices.

The term "defamation" is interpreted very broadly here. It is a specific form of a unfair market practice damaging the reputation of a company, its products or services. Crucially, even the dissemination of factually correct information (the competitor wás effectively convicted) can be considered defamation if the manner in which it is done exceeds the bounds of good faith and the general standard of care.

At the heart of the court's assessment is the proportionality test. The court weighs the right to information and the freedom of speech against the duty to behave as a normal and prudent enterprise. A one-time misstep by a competitor does not justify a large-scale public attack. The disproportionate scale of the communication (one-to-one mistake versus one-to-2,000 communications) was the deciding factor that tilted the balance toward a violation of fair market practices.

What this specifically means

This case has obvious practical implications for businesses engaged in legal conflict.

• For the 'winning' party: Be extremely careful when communicating about a court victory. Although the verdict is public, how you communicate about it is not. Ask yourself: is my communication proportionate to the facts? Does it serve a legitimate purpose or is it merely intended to harm the competitor? A neutral, factual and limited communication is recommended to avoid a counterclaim.
• For the 'losing' party: A conviction does not mean you are outlawed. If your competitor abuses the conviction in an exaggerated, misleading or disproportionate way to damage your reputation, you have legal remedies. You can demand through a cease-and-desist order that this form of misrepresentation stop and that a correction be published.

FAQ (frequently asked questions)

Is every negative statement about a competitor prohibited?
No. Criticism is permissible as long as it is objective, relevant and proportionate. Defamation, on the other hand, is the dissemination of information (even if correct) with the intent or effect of damaging the reputation of a competitor in a way that exceeds fair competition.

What is the difference between defamation and unfair comparative advertising?
Defamation is aimed at damaging the reputation of a competitor. Comparative advertising (Article I.8, 14° CEL) is any advertising that (implicitly) mentions a competitor or their products/services. It becomes impermissible if it is misleading, denigrating or non-objective. The mailing in this case was not comparative advertising because no services were being compared.

Can I ask the court to force my competitor to publish a rectification?
Yes. As this case demonstrates, under Article XVII.4 CEL, the president of the enterprise court can order the publication of a rectification at the violator's expense.

Conclusion

The urge to make a legal victory public is understandable, but the line between informing and harming is thin. This ruling confirms that "boomerang tactics" - exploiting another's conviction - can lead to one's own conviction in Belgium. Proportionality and good faith are the watchwords. A thoughtless communication can lead not only to another legal defeat, but also to significant reputational damage.