Babette De Naeyer (PhD candidate, Pompeu Fabra University)
Dries Van Langenhove – the notorious leader of the far-right student group Schild & Vrienden – is back in court. Already the subject of two ForHum blogposts, Van Langenhove & Co find themselves under scrutiny yet again, this time in a bizarre mix of defamation claims and prank-like harassment.
I. Quick recap: The S&V Saga, Part I and II
For those who missed Part I and Part II: the S&V case concerns the criminal conviction of six members of a far-right student movement called Schild & Vrienden for publishing thousands of antisemitic, racist, and revisionist memes and posts on Facebook and Discord. The S&V members’ main defence was that it was all “just for laughs” and sharing jokes should be allowed. The Belgian courts disagreed and convicted them to suspended prison sentences and heavy fines for spreading hate speech.
S&V’s leader, Dries Van Langenhove, gained notoriety after a documentary revealed the inner workings of Schild & Vrienden. The documentary did not only kick-start his legal proceedings, it also propelled him into political fame: he served in the Belgian parliament from 2019 to 2023.
II. Facts of Part III
Since you’re up to date, what did Van Langenhove & Co get up to now? Same old, same old: this new judgment concerns events from the same time period. Back in 2017, Schild & Vrienden [Shield & Friends] started gaining traction among the student population of Ghent University. To counter some of S&V’s claims, a PhD student and teaching assistant at Ghent University created an anonymous Twitter account called Schuld en Vrienden [Blame & Friends]. About a year later, some S&V associates discovered the identity of the person behind the mock account and shared it on 4chan, after which the doctoral assistant began receiving death threats.
Two defendants were on trial for these events:
Van Langenhove claimed that the Schuld en Vrienden account had shared private information about S&V members and their families. He argued that if they were being doxxed, it was only fair to dox him back. Ghent University investigated this claim and found no evidence that its employee had misused their position by sharing personal information about S&V members on his anonymous Twitter account.
Despite this, Van Langenhove doubled down in various videos and press releases. In 2021, he released another video revealing the account owner’s identity again and reaffirmed his doxxing claims. This last video led to him being accused of defamation.
The second (unknown) defendant was accused of IT forgery, using a false name, and stalking. After discovering the victim’s identity online, he placed two orders for adult diapers addressed to “Ms. and Mr. Schuld en Vrienden” to be delivered to the victim’s home, along with an accompanying letter.
III. The Court’s Split Ruling
The second defendant was found guilty on all three charges. The Court contextualized his behaviour: as a member of S&V, he knew of the “wave of online hate comments” directed at the victim (p. 22). By sending adult diapers, X signalled that S&V and its sympathizers now where the victim lived and that that knowledge should make him “shit himself.” The Court rejected X’s defence that it was just a student prank and sentenced him to 70 hours of community service. The penalty was reduced due to the reasonable term requirement not being met, as the sentence came six years after the facts.
Regarding Van Langenhove, the Court declared itself incompetent under Article 150 of the Belgian Constitution, which reserves press and political crimes for the assize court (jury trials). Traditionally, any illegal publicly spread – online or in person – written publication, can be considered a press crime. However, only written statements count: oral and audiovisual opinions are excluded (e.g., Cass. 29 October 2013; Cass. 28 April 2021). The first instance court deemed this distinction outdated, citing VRIELINCK’s influential plea.
First, the court highlighted the historical rationale behind Article 150. The 1831 Constitution wanted to protect critical dissent from government suppression. The national trauma of professional judges doing the government’s bidding was still very recent. Juries were thought to better protect speech and have a more “pro-libertate” mindset.
But Article 150 was not just there to better protect free speech: it was also a guarantee for judicial neutrality. Press offences are socially sensitive and might force judges into personal or political choices. Theoretically, jury courts could help preserve judicial impartiality.
After repeating these traditional considerations, the Court added that this distinction may violate Article 10 ECHR (freedom of expression) when read alongside Article 14 ECHR (principle of equality and non-discrimination). It considered that the medium through which speech is expressed – written, oral, or audiovisual – should not determine whether it receives Article 10 protection. Furthermore, technological evolutions have made this traditional oral / written distinction increasingly arbitrary, especially with news tools like automatically generated subtitles.
Consequently, the Court classified Van Langenhove’s defamatory video as a press crime and declined jurisdiction, emphasizing the Constituent’s “distrust regarding the neutrality of professional judges in this matter” (p. 17) and noting that any reform of this outdated rule is the Constituent’s responsibility. By denying jurisdiction, a court of first instance once again challenges the Court of Cassation to change its distinction between written and oral press crimes. If they take the bait this time, this could have widespread consequences for any type of humorous oral defamation currently being prosecuted, such as the Acid case discussed previously.
IV. Balancing contested speech is no child’s play
a) Political cases before a judicial court: A losing game?
This is the first S&V case where the political nature of the saga is so apparent. The civil party noted that Van Langenhove was about to join parliament, gaining immunity (p. 7). Van Langenhove himself also cross-referenced the original S&V case when he disregarded his comments, claiming he never directed any action against the victim, never even “made any memes about him” (p. 9). He further declined the invitation to his final hearing, citing procedural unfairness. Both he and his mother had received threats of violence, including death threats, which were (apparently) quickly dismissed by authorities.
These circumstances highlight the politically sensitive nature of the case and set the stage for the Court’s key question: who is best equipped to handle politically charged cases? The answer, according to the First Instance Court of Ghent, is clear: not professional judges.
b) Article 150 Constitution: Re-interpreting the rules of the game
In this decision, the First Instance Court criticizes the antiquated judicial interpretation of Article 150 Constitution: why are only written opinions given jury protection, and not oral ones as well? It is brave of the judiciary to challenge the Cassation Court to make its jurisprudence more apt for the digital age. But if Cassation is going to bite, some wrinkles in the judge’s reasoning need to be ironed out first.
According to DEENE, the judge’s strongest argument is that differentiating between oral and written expression violates Article 10 ECHR (freedom of expression) when read alongside Article 14 ECHR (equality and non-discrimination). Put simply, the medium of expression should not determine whether speech receives protection. However, the Strasbourg Court itself also distinguishes between written and oral forms of expression and treats them slightly differently. I have made this analysis more profoundly here, where I also argue that this distinction no longer makes sense in the digital era.
Furthermore, if Article 10 ECHR should be read in light of Article 14 ECHR, why stop there? In fact, one could argue that Article 150 Constitution in itself violates the principle of equality. In 1999, the Constitution was amended so that press crimes “motivated by racism or xenophobia” would be heard by ordinary criminal courts, because of a de facto impunity of press crimes. Assize court procedures were lengthy, costly, and often led to acquittals or minimal penalties. Besides, wide-spread media coverage of assize proceedings was counter-productive: they amplified the problematic speech on trial to an even bigger audience.
In 1999, there was a surge of far-right parties in Belgium, and the Constituent felt that Belgium did not have “the necessary legislation to effectively combat racist and far-right organizations.” However, does this exception not create an unfair distinction between race/xenophobia and other grounds of discrimination, such as gender, sexual orientation, religion, etc? The Council of State already thought so back in 1998. Since then, Unia and other human rights institutions have repeatedly noted that this distinction cannot be justified.
This distinction also explains why the gender dimension was missing from the original S&V cases. The Pano documentary highlighted hundreds of sexist posts in S&V social media channels, yet no charges for gender discrimination were brought. Prosecutors likely avoided pursuing this out of fear of having to take the entire case to the assize court.
Indeed, many types of minorities face daily online harassment that goes unpunished. In 2021, a solitary case of sexist online harassment was brought before the Assize court: the first and still only of its kind. Thus, to end this penal impunity, calls to “correctionalize” all press crimes have been consistent in doctrinal debate. However, one argument that is often overlooked is that the jury protects not only citizens’ speech, but also the neutrality of the judiciary. In this case, this judge brings this argument back to the forefront.
In Part I and Part II of the S&V Saga I posed an open question: are judges best placed to handle these sensitive political matters? It seems a judicial body has finally answered my call: I am not, nor did the Constituent intend me to be – unless they themselves decide otherwise.
Public outrage has followed every S&V saga: some argue that innocent jokes were over-policed and financially support Van Langenhove, while others claim the punishments were too lenient. Are judges weary of ruling on such delicate political matters, aware of the public scrutiny and accusations of bias that inevitably follow? Could a jury trial shift this spotlight away from them, thereby better safeguarding their neutrality?
c) Rewriting the game: The DSA comes to play
This raises a third question: can any court – jury or professional – effectively handle online expression crimes? In this case, the victim waited six years (!) for a decision. A verdict this late does little to repair reputational damage. If an eye for an eye is making the whole world blind, then it seems a dox for a dox is not making anyone end up in the box.
Changing Article 150 alone is unlikely to solve the broader sense of impunity for online expression crimes; other countries without this constitutional peculiarity face the same struggles. This is why the European Union introduced the Digital Services Act (DSA), providing more agile mechanisms for resolving online expression conflicts. The DSA establishes internal and external appeal processes, alongside judicial oversight. Out-of-court dispute settlement bodies (Article 21 DSA) are independent expert panels addressing content moderation complaints. For example, user-rights.org allows users to challenge both inaction against wrongful content as well as wrongful takedowns, in a faster, cheaper, and more accessible way than traditional subpoenas could ever do.
Some worry that these alternative dispute resolutions could create a parallel judicial system. However, if these OSD-bodies adhere to judicial standards of fairness, transparency, and balanced rights protection, such concerns can be mitigated. But if we want these decisions to be sound, some judicial guidance will remain essential to ensure coherency.
Part III of the S&V Saga suggests that judges are increasingly burdened by these responsibilities – and I get it. Balancing free speech is hard. Deciding the difference between innocent memes and irony-poisoning is hard. Tracing the fine line between a student prank and stalking is hard. But this is where legal doctrine comes into play (see for instance Canal 8 v. France from the ECtHR, with regard to another prank gone wrong). Free speech scholarship must provide a rational, legally sound framework to guide judges, thereby sharing some of the responsibility for these difficult decisions. But someone will have to do the dirty work. No one likes changing diapers, but what else to do until the system is potty-trained? Letting harmful content fester and stink just isn’t option.