Freedom of speech versus incitement to hatred: where is the line in political criticism?

Introduction

On December 6, 2024, the Antwerp Court of Appeals pronounced a ruling in a case that touches on the fundamental question: where is the line between permissible political criticism and punishable incitement to hatred or violence? The ruling offers valuable insights into how judges make this delicate balancing act and what criteria they use in doing so.

Facts of the case

The case revolved around defendant G.V.M., who was prosecuted for inciting hatred or violence against Z.M. because of her descent or national or ethnic origin. The indictment was based on article 20, 2° of the Law of July 30, 1981 punishing certain acts motivated by racism or xenophobia (the "Antiracism Law"), in conjunction with Article 444 of the Criminal Code.

Specifically, the charges involved placing or causing to be placed and maintained:

• An article with accompanying photo "H.M., the new spokesman of the Open Vld" on the website Tscheldt.
• Several photos with captions on Tscheldt's Twitter and Facebook page, always referring to H.M. as "new spokesman for the Open Vld"

The article criticized the political party Open VLD and in particular E.L. In doing so, Z.M. was brought up as its new press secretary. The article was accompanied by a photo of Z.M. dressed in a black chador, referring to Iraq as "her actual homeland," where she had gone with subsidies several years before, according to the article.

The article further stated that Z.M., along with B.S. and S.E.K., would be at the heart of a "very diverse" political party, accusing them of not wanting to talk to "24% of Flemish people who they believe are too conservative, too right-wing, too racist, too Nazi, too angry or too white."

Legal framework

The indictment was based on:

1. Article 20, 2° of the Law of July 30, 1981, which criminalizes: "he who, in one of the circumstances referred to in Article 444 of the Penal Code, incites hatred or violence against a person because of one of the protected criteria referred to in Article 4, 4°, and this, even outside the domains referred to in Article 5.“
2. Article 4, 4° of the same law, that the "defines "protected criteria," including "descent or national or ethnic origin“.
3. Article 444 of the Criminal Code, which specifies the circumstances in which certain expressions may be punishable.
4. Article 66 of the Criminal Code, which deals with culpability and complicity.

Court's assessment

Responsibility for publication

The Court noted that from the "file data does show that defendant G.V.M. is the actual administrator with full control over the content of T's website, twitter and facebook page.“

In doing so, the Court referred to "extensive and pertinent motives of the first judge" and explicitly emphasized that the "irrelevantly, defendant G.V.M. was not the actual author of the article in question.”

Assessment of content and special design

The Court then examined whether the publication could be considered incitement to hatred or violence. Here, particular attention was paid to whether there was a "particular setup“.

The Court noted that "the choice to place in the article in question a photo of H.M. in which she is dressed in a black chador with the caption "her actual homeland" was indeed a deliberately provocative and polarizing choice in which the emphasis was placed on her origin.“

Nevertheless, the Court held that this alone, in light of the entire article, was not sufficient to "to establish beyond all reasonable doubt that the publication of this text and photograph actually had the intent to incite hatred or violence against the civil party." The court noted that the article was essentially targeting the political party Open VLD itself, and that the photo in question of H.M. in Iraq was "not chosen haphazardly," but matched some of the content about her trip to Iraq.

The Court formulated an important rule of law on special intent:

“Incitement to hatred and violence against a person on the basis of his or her origin requires, in order to be punishable, a special intent, namely the special will to incite hatred or violence. This special intent presupposes that the perpetrator is aware that he could incite others to discrimination, hatred or violence and that he nevertheless maliciously pursued it.”

The Court emphasized that "not every critically or even viciously written article necessarily incites hatred" implies, and that in the absence of this particular intent the article is under the protection of the freedom of speech falls.

In this particular case, the Court held that the article "aimed at arousing public feelings of disdain against the state of affairs at Open Vld rather than towards the bourgeois party.“

The court acknowledged that following the article "many hateful and racist comments" were expressed by readers, who "absolutely reprehensible" were and did incite hatred and violence against the civil party, but noted that defendant G.V.M. had been excluded from prosecution for this by the courtroom.

The Court also referred to the principle that doubt plays in the defendant's favor.

Decision

Based on this analysis the court acquitted defendant G.V.M. of the charge of inciting hatred or violence because of descent or national or ethnic origin.

Legal implications

This ruling confirms several important legal principles:

1. High threshold for criminality: There is a high threshold for criminalizing expressions that could potentially be considered incitement to hatred or violence. The requirement of special intent ensures that not every provocative or polarizing expression is punishable.
2. Protection of freedom of expression: The court attaches great importance to protecting the freedom of speech, especially in a political context. Criticism of political parties and figures enjoys broad protection.
3. Responsibility of administrators: Administrators of websites or social media accounts may be held liable for the content they publish or cause to be published, even if they are not the actual authors.
4. Integral assessment of expressions: Expressions are evaluated in their entire context, looking at the purpose and thrust of the whole, not just isolated parts.
5. Distinction between criticism and incitement to hatred: The ruling makes an important distinction between critical or even vitriolic expression on the one hand, and incitement to hatred or violence on the other. Not every provocative or polarizing expression is punishable.

Practical implications and recommendations

For media, bloggers, and administrators of websites or social media accounts, this ruling has important implications:

1. Responsibility as an administrator: As the administrator of an online platform, you may be legally responsible for all content that appears on it, even if you are not the author yourself. This requires active monitoring and moderation of your platforms. Under certain conditions, some administrators who do not play an active role may be able to claim an exemption from liability in accordance with the DSA.
2. Caution with images and texts about origins: Be careful when using images and texts that emphasize someone's ethnicity, ethnicity or religion, especially when combined with political criticism.
3. Context and purpose of publications: Always consider the overall context and purpose of your publications. A legitimate political purpose can help protect under freedom of expression.
4. Moderation of comments: Be alert to responses from readers that may well incite hatred or violence. Even if you, the administrator, are not prosecuted for the original article, such responses can be problematic.
5. Documentation of decisions: Document your editorial decisions, especially with potentially controversial publications, to prove your intentions if necessary.

Conclusion

This judgment of the Antwerp Court of Appeal illustrates the delicate balance between protecting freedom of expression on the one hand and combating hate speech on the other. The high threshold of proof for proving special intent when inciting hatred or violence confirms the importance our rule of law attaches to the right to freedom of expression, even when those expressions may be provocative or polarizing.

At the same time, the ruling confirms the responsibility of administrators of online platforms for the content they publish or cause to be published, which is an important consideration for anyone active in the digital media world.

Whether you are a website operator concerned about liability, a journalist who wants to know the limits of political reporting, or someone who may be a victim of hate speech - our experts in media law and discrimination law offer you personal and professional advice.