Can a duty of confidentiality permanently restrict your freedom of expression?

A settlement agreement, concluded to end a protracted conflict, often contains a strict confidentiality clause. But what if, years later, you still want to tell your story and invoke your freedom of speech? A judgment of the Dutchspeaking Enterprise court of Brussels of 30 September 2025 in the case between DPG Media and Guido Van Liefferinge provides a clear answer: a settlement agreement is binding and the restriction on free speech contained therein is valid, provided that this restriction is clearly defined and proportionate.

The facts: from a golden partnership to a bitter legal battle

The case has its origins in a decades-long collaboration between Guido Van Liefferinge (GVL), founder of success magazines such as Joepie and Dag Allemaal, and De Persgroep (the predecessor of DPG Media). In 2000 it came to a split, after which a legal battle of no less than fifteen years erupted over contractual obligations and copyrights.

To permanently end these protracted proceedings, the two sides entered into a settlement agreement on June 29, 2015. In exchange for substantial compensation of €3,975,000, GVL undertook to, among other things:

• No further book or publication on DPG Media and its shareholders.
• Keep the content and existence of the settlement agreement strictly confidential.
• Refrain from making critical statements about the company, management and shareholders.

The dispute seemed settled, until the publication of a new book by GVL was announced in early 2024: Man Bites Van Thillo. The back cover text, which appeared online, and several posts on GVL's blog Man bites Media referred explicitly to the former collaboration and conflict. For DPG Media, this was a clear violation of the settlement agreement. It went to court to demand a publication ban, which it did using a two-step legal strategy: first, summary proceedings for a quick, provisional decision, and then the current proceedings on the merits for a final judgment.

Enterprise court decision

The court ruled in favor of DPG Media and prohibited Guido Van Liefferinge from distributing the book Man bites Van Thillo and other publications related to the historical dispute.

The court based its judgment on the following key considerations:

1. A settlement agreement is binding: A contract validly concluded extends law to the parties (principle of pacta sunt servanda). The settlement agreement was negotiated in 2015 with the assistance of attorneys and signed freely. The court stressed that it must respect its content and cannot change it.
2. A broad interpretation of 'publication': GVL argued that a back cover text or blog post is not a "publication" within the meaning of the settlement agreement. The court did not follow this. It held that the common intention of the parties was to definitively end the dispute, including any public utterances that would reignite the conflict. Therefore, the term "publication" should be interpreted broadly as "any disclosure to the public, regardless of form." This includes both the back cover and blog posts.
3. Freedom of speech is not absolute: GVL's most crucial argument was that a publication ban would be a disproportionate curtailment of its freedom of speech guaranteed by article 10 of the ECHR.

Legal analysis and interpretation

This ruling is an important case on the relationship between contractual obligations and fundamental rights. The court conducted a thorough proportionality test based on the case law of the European Court of Human Rights (ECtHR).

The ECtHR accepts that one can waive a fundamental right provided two conditions are met:

1. Subjective element: The waiver must be unambiguous, deliberate, and free from coercion. The court ruled that this requirement had been met: GVL was an experienced party, assisted by a attorney, and was aware of the consequences.
2. Objective element: The waiver must not undermine the essence of the legal order and must serve a legitimate purpose that is proportionate to the restriction. According to the court, this condition was also met. The legitimate purpose was to end a long-standing conflict and protect the reputation of both parties. The restriction was proportionate because it is not general: GVL is not permanently silenced about DPG Media. The ban is strictly limited to the specific, historical dispute that formed the basis of the settlement.

The court concluded that GVL had validly waived his right to free speech on this particular issue. Using the settlement to silence him was therefore out of the question; it was a matter of executing a contract that had been concluded in complete freedom.

What this specifically means

• For those who sign a settlement agreement: Be extremely aware of the scope of a confidentiality or silence clause. You are trading your right to speak on a specific subject for financial or other concessions. This agreement is legally enforceable and you cannot simply go back on it later by invoking freedom of speech.
• For those seeking to enforce a settlement agreement: A carefully drafted settlement agreement is a powerful tool to bring final closure to a conflict. Make sure that the subject matter of the settlement agreement and the scope of the confidentiality obligation are precisely defined. This judgment shows that the court will uphold such clauses.
• For third parties (such as publishers): Be alert to the risk of "third-party complicity in breach of contract". When DPG Media informed the publisher EPO of the settlement, the publisher discontinued the project. Anyone who knowingly participates in another's breach of contract can be held personally liable for the resulting damages.

FAQ (frequently asked questions)

What exactly is a settlement agreement?
A settlement agreement is a contract by which the parties, through mutual concessions, end an existing dispute or prevent a future dispute. According to Article 2052 Old Civil Code, a settlement agreement between the parties has the same force as a court judgment that is no longer subject to appeal.

Is a silence clause in a contract always valid?
Not necessarily. A silence clause is always reviewed by a judge in terms of fundamental rights. It is generally valid if it is clearly defined, voluntarily accepted and serves a legitimate purpose. A clause that completely and forever silences someone on any subject would probably be considered disproportionate.

What is the difference between summary proceedings and proceedings on the merits?
Summary judgment serves to obtain a quick, provisional decision in urgent cases, such as requesting a provisional publication ban. Proceedings on the merits, as in this judgment, deal with the case in depth and lead to a final ruling on the dispute itself.

Conclusion

The judgment in DPG Media v. Van Liefferinge is a clear reminder of the adage pacta sunt servanda in Belgian law: agreements must be respected. Although freedom of expression is a cornerstone of our democracy, it is not unlimited. It can be contractually restricted in a valid and enforceable way, as long as it is done in a deliberate, well-defined and proportionate manner.