Can a critical press article be badmouthing?

On April 17, 2024, the president of the French-speaking business court in Brussels ruled in a case concerning the limits of freedom of the press and malpractice. The case concerned a dispute between S.A. BioTempo, publisher of the magazine "Zèbre" (formerly "BioTempo"), and the RTBF, the French-language public broadcaster in Belgium. This ruling deserves special attention because it strikes a delicate balance between two fundamental legal interests: on the one hand the right to free speech and journalistic freedom, and on the other hand the protecting businesses from unfair business practices and reputational damage.

Facts of the case

BioTempo has been publishing a magazine since 2015 that originally focused on health and biological topics. The editorial line later evolved to a more "holistic" approach, and the magazine was renamed "Zèbre."

On September 16, 2023, the RTBF an article entitled "Complotistes, extrême droite et adeptes de théories pédocriminelles: voici le réseau des désinformateurs sur l'Evras en Belgique" (Conspiracy thinkers, the far right and supporters of pedocriminal theories: this is the network of disinformers about Evras in Belgium). This article presented BioTempo/Zèbre as part of a "network" that would actively spread disinformation about EVRAS (Éducation à la Vie Relationnelle, Affective et Sexuelle - Relational, affective and sexual education).

The article included an interactive diagram that included Zèbre in what RTBF described as a network of COVID conspiracy thinkers, followers of pedocriminal theories and ultra-conservative or far-right associations. RTBF claimed that this network "activates disinformation around EVRAS."

Legal arguments of BioTempo

BioTempo brought an action for cessation before the president of the French-speaking enterprise court in Brussels. Its legal argument was threefold:

1. Badmakingt: BioTempo argued that RTBF violated Article VI.104 of the Code of Economic Law had violated, that prohibits any act contrary to fair market practices by which a company harms or may harm the professional interests of one or more other companies. BioTempo argued that the title of the article was seriously derogatory, as was the accusation of being a "supporter of conspiracy theories about pedophile networks." They argued that RTBF falsely accused it of spreading "false information," "disinformation" and "untruths."
2. Unlawful use of freedom of expression: BioTempo acknowledged that the RTBF had not changed its freedom of speech exercised, but argued that this exercise had been erroneous. They argued that RTBF had wrongly attributed the opinions expressed by interviewees to the magazine itself, and that RTBF wrongly inferred facts about the publisher from the opinions of these interviewees.
3. Infringement of BioTempo's own freedom of speech: BioTempo claimed that its magazine had been insulted and that very serious accusations had been made, affecting press pluralism and freedom of expression.

BioTempo stressed that the article had dealt a severe blow to its reputation, both with readers and distribution channels, prospective interviewees, advertisers and investors.

Defense of the RTBF

The RTBF argued that its publication was fully protected by the freedom of speech, as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). Her main arguments were:

1. Sufficient factual basis: RTBF argued that it had a sufficient factual basis for the article's claims. It pointed out that BioTempo had made deliberate choices by interviewing certain controversial figures without offering critical comments or context.
2. Editorial responsibility: RTBF argued that BioTempo was responsible for the editorial choices it had made, such as interviewing A.B., who RTBF said was a "controversial figure," and presenting its views without questioning or providing context.
3. Proportionality: RTBF argued that a strike order would amount to an interference with its freedom of expression that did not meet the criterion of "necessity in a democratic society," as required by Article 10 ECHR.

The RTBF also challenged Belgian legal doctrine and case law on malignation, according to which an assertion can be considered derogatory even if it is factually correct. According to the RTBF, this would violate the case law of the European Court of Human Rights, which states that the impossibility of invoking the truth as a defense is a disproportionate measure.

Thorough analysis of the president

The president examined the dispute by carefully balancing the prohibition against badmouthing on the one hand and freedom of expression on the other.

Regarding badmaking

The chair began by affirming that badgering is defined as "any harmful impairment," for example, of a company's reputation "by a defamatory act or even by simple criticism that allows identification." Importantly, the chair noted that it does not matter whether the accusation corresponds to reality or not as long as it is made in damaging terms.

The president also confirmed that for Article VI.104 WER to apply in cases of badmouthing, there is no requirement that the companies involved be competitors, which was a counter-argument raised by RTBF.

On freedom of expression

The president then analyzed whether the measures requested by BioTempo would constitute an interference with RTBF's freedom of expression. The chairman recalled that according to Article 10 ECHR, restrictions on freedom of expression must meet three conditions:

1. The interference must be provided for by law
2. The interference must pursue a legitimate purpose
3. The interference must be necessary in a democratic society

RTBF did not dispute that the first two conditions were met, but argued that the requested interference was not necessary in a democratic society.

Analysis of the specific claims

The president examined in detail the various claims that BioTempo considered derogatory:

1. Accusation of spreading "falsehoods": The court concluded that RTBF could indeed prove that BioTempo had published certain allegations that could be qualified as "falsehoods," in particular the claims of interviewees about the content of the EVRAS guide.
2. Qualification as "conspiracyist": The court accepted RTBF's explanation that several persons with whom BioTempo had ties (such as journalist L.R. and director P.L.) had indeed expressed views that could be considered "conspiratorial," namely the idea that the government would have hidden agendas.
3. The term "interviews complaisantes" (complaisant interviews): The president ruled that BioTempo had made editorial choices by publishing interviews without critical comment, without alerting readers and without providing context, which could be called a form of "accommodating."

The president referred to the settled case law of the European Court of Human Rights, which states that the tone of reporting may be polemical and even provocative if justified by the content of the information, the context of the situation or the seriousness of the facts.

The decision and rationale

After thoroughly analyzing all the arguments, the chairman came to the following conclusions:

1. RTBF had a sufficient factual basis for its allegations, so there was no intentional defamation or malignation.
2. RTBF's statements regarding Zèbre (BioTempo) were directly related to the subject of the article and objectively substantiated.
3. The requested strike order would constitute an interference with the RTBF's freedom of expression that did not meet the condition of necessity in a democratic society.
4. BioTempo's alleged infringement of freedom of expression had not been demonstrated. On the contrary, the file showed that BioTempo and its directors had exercised their own freedom of expression by publishing on their website and on Facebook an article criticizing the RTBF's article in turn.

The president therefore rejected BioTempo's claim.

Legal bases and principles

This ruling confirms and clarifies several important legal principles:

1. Badmouthing versus freedom of speech: The ruling recognizes the tension between the prohibition of badmouthing and freedom of expression, and gives precedence to the latter when there is a sufficient factual basis for the criticized remarks.
2. Editorial responsibility: The president confirmed that media organizations are responsible for their editorial choices, including which individuals to interview and how to present those interviews.
3. Boundary between opinions and facts: The case clarifies that when a medium publishes opinions without providing them with context or nuance, this can be considered an editorial choice for which the medium is responsible.
4. Polemical tone in the media: The court recalls that a polemical or even provocative tone in the media is acceptable, provided it is justified by the context, content or importance of the subject.
5. Necessity in a democratic society: The ruling illustrates how courts assess the "necessity" of an interference with freedom of expression, specifically by looking at the presence of a "compelling social need" that would justify such interference.

Practical implications for media organizations and enterprises

This ruling has important practical implications for both media organizations and businesses that may feel aggrieved by media coverage:

For media organizations:

1. Factual substantiation is crucial: Media should ensure a solid factual basis for their claims, especially when they are potentially damaging to the reputation of companies or individuals.
2. Polemical tone is allowed, but...: A sharp or provocative tone is acceptable within journalistic freedom, but must be justifiable by the public interest or the seriousness of the subject.
3. Investigative journalism is protected: The ruling affirms the protection of in-depth journalism that exposes networks or connections, provided they are sufficiently substantiated.
4. Responsibility for clear editorial choices: Media should realize that they can be held responsible for editorial choices such as the selection of interviewees or how controversial views are presented.

For businesses:

1. High threshold for lawsuits against media: Companies should be aware of the high threshold of protection enjoyed by freedom of expression, and that claims to strike will succeed only in exceptional cases.
2. Own editorial choices have consequences: Publishers and media companies are responsible for the content they distribute, including third-party interviews or opinion pieces.
3. Reputation protection requires proactive approach: Rather than relying on legal remedies after publication, companies are better off investing in transparent communication and proactive reputation management.
4. Reword as an alternative: The ruling suggests that using one's own communication channels for rebuttal may be a suitable alternative to legal action.

Broader perspective: Press freedom in times of disinformation

This case should be seen in the broader context of current debates about disinformation, "fake news," and the role of media in distinguishing reliable from unreliable information.

In an era when disinformation is a growing concern for democratic societies, this ruling illustrates the delicate balancing act courts must make between:

1. Protecting freedom of speech and freedom of the press as cornerstones of democracy.
2. Recognizing the responsibility media have in fighting disinformation.
3. Ensuring fair competition and protection against undue damage to the reputation of companies.
4. Respecting the plurality of opinions and the free exchange of ideas, even when they are controversial or against the mainstream.

The president seems to be suggesting that media should be able to report critically on what they consider disinformation without fear of legal repercussions, provided they rely on a sufficient factual basis and stay within the bounds of legitimate public debate.

Conclusion

The ruling by the president of the French-speaking business court in Brussels on April 17, 2024 is an important step in the jurisprudence on the balance between badmouthing and freedom of expression. It confirms the broad protection journalists and media enjoy when reporting on topics of public interest, even when that reporting is critical or controversial.

At the same time, the ruling reminds media organizations of their responsibility to base their claims on a solid factual basis and to make editorial choices that respect that basis.

Ultimately, this case highlights the importance of an independent judiciary that carefully weighs various fundamental rights and freedoms, upholding the democratic values of free speech and transparent information.