Disinformation has become one of the central challenges of modern democracies. With the multiplication of discussion spaces as well as the explosion of user generated content, the amount of –and speed at which– disinformation is created and spread is unprecedented. Facing this evolving challenge (disinformation is not something new), multiple legal and non-legal frameworks have been implemented both at European and national level in EU Member States.
This document aims at putting together the key issues regarding the legal framework applicable in Belgium, in June 2023.
We would like to thank Norton Rose Fullbright law practice for their support, as well as Thomson Reuters TrustLaw programme.
National legislation
Under Belgian law, disinformation/misinformation, as an individual behaviour consisting in sharing fake news (and therefore not as a broad term which encompasses several behaviours), is not yet regulated. However, on 19 November 2021, the Belgian Senate published an information report on the necessary collaboration between the federal authority and the Communities in the fight against fake news. In Belgium, each citizen has the right to freedom of speech, which is guaranteed by the Constitution, both for the individuals (Article 19), and for the media (Article 25).
Nevertheless, freedom of speech has limits, any notably an opinion can be freely expressed as long as it does not result in malicious behaviour (e.g., racism, discrimination, etc.). Therefore, even if disinformation is not itself yet regulated under Belgian law, there are laws which regulate the dissemination of illegal content, (e.g., terrorist, racist, denialist, etc. statements), both by individuals and by the media. Furthermore, when a person abuses freedom of press to express punishable opinions, the text can be condemned after publication. This is known as a press offence.
Regarding side regulation touching on paid influence (political advertisement, role of influencers), it seems that Belgian regulation does not focus specifically at its online aspects.
European legislation
In 2022, the Digital Services Act (DSA) was adopted. Aiming at regulating online platforms and their content moderation processes, this regulation will have an impact on how harmful content is managed by online services.
At this stage, there are remaining uncertainties on the DSA’s implementation in Belgium.
- As part of the DSA implementation, the Member States have the obligation to designate a Digital Services Coordinator (DSC) who will be responsible for monitoring other intermediate services covered by the DSA. Belgium has until 17 February 2024 to designate its DSC. No indications have been made on who the DSC would be.
- Apart from that, Belgium has not made public any draft law outlining how it will implement the DSA.
- Unlike other EU Member States, Belgian regulators did not show public interest in analyses reports of the Code of Practice on disinformation. Down the line, these reports would help to build evidence of risk assessment and mitigation measures implemented by Very Large Online Platforms in Member States.
Self-regulation
Looking at self-regulation mechanisms, we found that both ethics bodies of journalists are regularly used to complain against disinformation. Most specifically, the French speaking ethics body (Conseil de déontologie journalistique), has issued multiple decisions regarding so-called “alternative medias” infringing the ethics code.
However, at this stage, this mechanism seems to be open only to regulate media, as it does not seem to cover disinformation spread by other stakeholders (individuals, companies, public authorities, political stakeholders, etc.).
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