Joris DeeneWhen your reputation is at stake due to defamatory statements in the media, the temptation is great to seek an injunction in court through the fastest possible procedure. Nevertheless, caution is advised: the specific procedure before the president of the court sitting “as in summary proceedings” is not suitable for general claims around slander, defamation and damages. Without the proper legal basis, the court will decline jurisdiction or dismiss the claim even if the statements are offensive. Thus, a correct litigation strategy is crucial to not only being right, but also being vindicated.
The facts and the claim
In a case heard before the President of the Court of First Instance Walloon Brabant, Rutger Smith (a former top athlete and employee) and the VZW Atletiek Vlaanderen faced off against Mr. Jacques Borlée. The occasion was a series of public statements made by Borlée in the press (including La Libre, VRT Canvas) and on social media. Among other things, Borlée allegedly accused Smith of incompetence and spoke of a “Dutch dictatorship” and “cancres” (lazy/bad pupils).
The plaintiffs felt publicly humiliated and claimed that these statements were defamatory, racist and inciting hatred. After a notice of default, which they claimed had no effect, they initiated proceedings before the president of the court of first instance, sitting as in summary proceedings.
Their demands were:
- An immediate ban on the statements, under penalty of a fine of €1,000 per violation.
- Compensation of €5,000 (for Mr. Smith) and €3,000 (for the NPO) respectively for reputational damage.
The defendant, Mr. Borlée, did not appear at the hearing and did not send an attorney.
The court's decision
In a judgment of 21 October 2025, the president of the Court of First Instance Walloon Brabant rejected the plaintiffs' claims in their entirety as unfounded. Despite the defendant's failure to appear, the judge tested ex officio whether the chosen procedure was correct.
The president states that he can only be involved “as in summary proceedings” in matters expressly provided for by law (such as public procurement, vacancy, or discrimination law). It does not include a general claim to restrict freedom of expression and seek damages based on civil liability. Moreover, the judge ruled that freedom of expression remains the rule and that the right to criticize - even virulently - is essential in a democracy.
The plaintiffs were ordered to pay court costs, including two legal fees of €1,020.35 each to Borlée.
Legal analysis and interpretation
This ruling goes to the heart of litigation law and strategy in reputational injury. .
1. Procedure ‘In summary proceedings’ versus ‘As in summary proceedings’
There is often confusion between two types of proceedings before the president of the court:
- The “real” summary proceedings (Art. 584 J.C.): Here the judge issues a preliminary decision in urgent cases. The judge does not rule on the merits of the case (such as final damages), but may impose interim/preservation measures.
- Sitting “as in summary proceedings”: In doing so, the president rules on the merits (a final judgment), but according to the expedited procedure of summary proceedings.
In this case, the plaintiffs had used the “as in summary proceedings” procedure for a matter (defamation and damages) that is not statutorily assigned to this particular proceeding. The president stated that he cannot adjudicate such claims unless there is specific legislation such as the Anti-Discrimination Law, which was insufficiently demonstrated here.
2. Article 19, 3rd paragraph J.C.
In his ruling, the president himself indicated where the lifeline lay. He stated that the parties “could usefully have brought such a claim on the basis of provisional measures” (article 19, third paragraph J.C.).
- What this means: If the plaintiffs had realized during the hearing that their claim on the merits (damages) would be rejected, they could, according to the president, have requested a provisional measure before seeking justice. This would have allowed the president to temporarily halt the alleged defamatory statements in order to investigate the merits of the case at a later date.
- The Strategy: However, the plaintiffs insisted on their demand for a final judgment and damages, leaving the judge with no choice but to reject everything.
3. The issue of urgency
Although, strictly speaking, urgency is not a jurisdictional requirement for “as in summarry proceedings" (it is for “real” summary proceedings), the president cited it to further undercut the claim. The facts dated from October 2024, while the judgment was from October 2025. The president ruled that after one year, there could no longer be an emergency that warranted a departure from the ordinary course of justice. This argument was used as redundancy to show that the claim made no sense on any level.
4. Freedom of expression as a threshold
In addition, the ruling confirms the high threshold for preventive censorship. The judge emphasized that there did not appear to be any criminal offenses such as incitement to hatred. The mere fact that criticism is perceived as “offensive” or “erroneous” does not justify a preventive ban through this procedure. The freedom of speech also includes the right to disseminate ideas that offend, shock or alarm.
5. The undue legal fee
The president ordered the plaintiffs, legal fees to Mr. Borlée.
This violates the Judicial Code:
- Article 1022 J.C. defines the legal fee as a compensation for attorney's fees.
- The judgment clearly states that the defendant did not appear and was not represented by an attorney.
Without an attorney, there can be no legal fees. So the plaintiffs here are being ordered to pay costs that the defendant never incurred. This looks like manifest error on the part of the president, which could be appealed (although the cost of appeal may not outweigh the amount).
What this specifically means
This ruling has important implications for both victims of defamation and defendants.
- For those who suffer reputational damage: Speed is important, but due process is more important. If you are seeking final damages, you usually belong in the ordinary proceedings on the merits, or you must prove that your claim falls under a specific law that gives the president jurisdiction. Do you just want to stop the defamation immediately because of extreme urgency? Then you should opt for classic summary proceedings and prove that the situation is irreversible, without immediately seeking final damages.
- For the defendant: Even if you do not appear in court (absentee), a vigilant judge will protect your rights by checking the procedural conditions. The right to free speech is not simply set aside, especially in proceedings not designed for that purpose.
Frequently asked questions (FAQ)
What is the difference between ‘in summary proceedings’ and ‘as in summary proceedings’?
In classic summary proceedings (art. 584 J.C.), the judge takes urgent, provisional measures without ruling on final rights. In an action ‘as in summary proceedings,’ the judge does make a final ruling, but this can only be done for specific laws that permit this quick procedure.
Can I seek damages in summary proceedings?
In classic summary proceedings, usually not, because damages require a final assessment of liability. You can only seek interim measures there (such as a provision, if the fault is undisputed). For full damages, you must follow the ordinary procedure.
Is calling someone ‘incompetent’ punishable?
Usually not. The court ruled in this case that virulent criticism and speech are essential in a democracy. Unless the speech incites hatred, discrimination or violence, or is merely intended to harm without any public interest, it often falls under freedom of speech.
Do I have to pay court fees to someone who does not show up?
You pay the roll fees and your own subpoena fees if you lose. However, you should not have to pay a legal fee to someone without an attorney. If this does happen, it is an error in the judgment.
Conclusion
Protecting your honor and reputation requires not only being right on substance, but above all a flawless procedural approach. The improper use in Belgium of the ‘as in summary proceedings’ procedure inevitably leads to a dismissal of the claim and high costs, regardless of how offensive the statements are.
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