Can censorship of the press sometimes be permissible?

In an order dated December 23, 2024, the judge of summary proceedings of the Court of First Instance in Liège imposed a temporary ban on publication on the newspaper Le Soir. This case, which pitted Maxime Degey (a local politician and mayoral candidate) against the publisher SA Rossel & Cie, raises important questions about the limits of press freedom, especially in the context of elections.

The facts: sensitive timing

The case arose just before the municipal elections of October 13, 2024. Just three days before these elections, Maxime Degey, then first alderman of Verviers and candidate for mayor, was contacted by journalist Joël Matriche of Le Soir. The journalist reported that he had information regarding a criminal investigation against Degey, including the contents of a demand for referral to the correctional court prepared by the public prosecutor's office in early October 2024.

Degey, unaware of this claim, immediately turned to the court and asked for a publication ban via a unilateral petition. The presiding judge granted this request by order dated October 10, 2024, against which the newspaper filed third-party proceedings. These third-party proceedings were dismissed.

The legal question: censorship versus legal protection

The heart of the case revolved around the delicate balancing act between two fundamental rights:

1. Freedom of the press and the prohibition of censorship, enshrined in Articles 19 and 25 of the Constitution
2. The right to privacy and the presumption of innocence of the person concerned

The summary judgment judge had to determine whether an injunction against publication prior to publication constitutes a form of prohibited censorship, or can be a justified protective measure.

The verdict: nuanced approach to censorship

The summary judgment judge ruled that a publication ban was justified in these specific circumstances. In doing so, the court followed an interesting interpretation of the constitutional prohibition on censorship.

The judge acknowledged that there are two interpretations of the Constitution's prohibition on censorship:

• An absolute interpretation prohibiting any form of prior verification
• A historical interpretation that understands censorship as "a state institution to which content is systematically subjected before publication or broadcast," as it existed under the ancien régime or in dictatorships

The court followed the second interpretation and held that punitive judicial intervention by an independent judge to resolve a conflict between two constitutional rights is not necessarily covered by the censorship prohibition.

Decisive elements in the decision

Several aspects played a crucial role in the decision:

1. Very urgent circumstances: The publication could happen digitally at any time, just three days before elections in which the article could have a decisive impact.
2. Unlawful source: The information available to the journalist could have been obtained only through a violation of professional secrecy, since it was a request for referral that was covered by the secrecy of the investigation.
3. Potential criminality: The publication might have violated Article 460ter of the Criminal Code, which criminalizes the use of information from a criminal record to invade a person's privacy.
4. Balance of interests: The court ruled that the public interest did not require publishing information about a five-year-old private case three days before the election, based on sources who had violated professional secrecy.
5. Proportionality of the measure: The ban was limited to information from the referral order, which still allowed the press to report on other aspects of the case.

Important lessons for media law

This statement offers valuable insights for politicians and journalists:

1. The ban on censorship in Belgium is not absolute when other fundamental rights are threatened.
2. The timing of publication - especially around elections - can be a decisive element in assessing the need for a publication ban.
3. Information obtained through violation of professional secrecy or secrecy of research enjoys less protection.
4. Politicians retain their right to privacy and presumption of innocence even during election periods.
5. Judicial publication bans must be proportional and strictly limited to what is necessary to protect the rights in question.

This nuanced approach to media law shows that while freedom of the press is a cornerstone of our democracy, there may be situations where temporary restrictions are justified to protect other fundamental rights. The ruling makes clear that this balancing act is always context-specific and that judges must look carefully at the specific circumstances of each case.

Incidentally, this decision has been appealed, indicating that the final word on this important issue has not yet been said.

This verdict has since been reformed by the Court of Appeal in Liege.