Online Humor in Court: Two Belgian Cases

Babette De Naeyer (Pompeu Fabra University, Barcelona), 29 March 2024

In the last month, two controversial cases have caused quite the commotion in the Belgian free speech landscape. The first one, the Acid case, concerned the conviction for cyber stalking of an influencer for posting a YouTube video titled “My 5 Favorite Reuzegom Members”. The second, the Schild & Vrienden (S&V) case, concerned the conviction of members of the extreme-right activist movement S&V, for sharing racist, sexist and negationist memes in closed chat groups on Facebook and Discord. Are Belgian courts castigating online humor? In the following paragraphs I will present the facts of both cases, followed by a reflection on the respective decisions.

What happened?

Although both cases concerned online humor and sent ripples in the free speech debate, the comparison really ends there. In the Acid case, Nathan Vandergunst, an infamous YouTube influencer, was accused of electronic stalking, slander and defamation, and violations of the law around sharing personal data online for uploading an 11-minute video on YouTube titled “My 5 Favorite Reuzegom Members”. Reuzegom was an elitist student fraternity that came under public scrutiny after their brutal annual hazing ritual resulted in the death of a young student, Sanda Dia. They were found guilty of involuntary manslaughter, degrading treatment and violations of the animal welfare law, for which they were given se sentence of 200 to 300 hours of community service and a fine of 400 euros. The public outrage was huge, and even caused protests and calls for a parliamentary inquiry. The tumult did not only target the perpetrators’ punishments, which was by many considered too lenient, but also the unwillingness of the traditional media to reveal the identities of the convicted fraternity members. Thus, Acid claimed the media had failed to inform the public and took it upon himself to expose the identities of his five “favorite” Reuzegom members by means of a flashy, ironic video. Even though it was swiftly removed by YouTube for violating their harassment policy, the video still gained hundreds of thousands of views and a lot of media attention. Other “illegal” versions of the video soon popped up on TikTok.

One of the Reuzegom members targeted by Acid was Donald DVDW aka Elio, who himself was not present at the hazing ritual. According to Acid, he was still worth mentioning, because Elio, as ex-President of the fraternity, helped create the hazing ritual and (allegedly) instructed the current members to delete some potentially incriminating evidence. In Acid´s view, Elio had “stayed in the shadows for too long”. He therefore mentions his name and reads aloud his online resume, according to which he is now a politician working for the N-VA, a right-wing Belgian political party, and shows the name of his parents’ restaurant in Antwerp. When the video went viral, the restaurant received numerous fake reservations and negative online reviews. Thus, Donald and his parents’ restaurant, subpoenaed Acid for electronic stalking, slander and defamation, and violations of the law around sharing personal data online. The First Instance Court dismissed Acid’s free speech defense, referencing Strasbourg’s recent Sanchez v. France – a controversial judgment on its own merits. The Court convicted Acid for cyber stalking to a probationary three-month prison sentence, an 800 euro fine and a provisional civil compensation of 20,000 euros to be paid to the restaurant.

The Schild & Vrienden (S&V) case is inherently different. Back in 2018, a documentary about the far-right, conservative, Flemish nationalist movement “Schild & Vrienden”, revealed that this youth organization shared a vast amount of sexist, racist and negationist memes and messages on their (private) Discord and Facebook pages. The documentary led to a criminal investigation into S&V’s internal operations. However, it also boosted their popularity, especially of S&V’s leader, Dries Van Langenhove, whose political career took off after S&V’s inner workings were revealed: in 2019, he became an elected representative in Parliament for “Vlaams Belang”, a far-right political party. He sat in Parliament until 2023, when he quit because he had “always felt more of an activist than a politician”. After 5 years, the First Instance Court finally decided whether S&V’s infamous memes constituted criminal behavior or not. Van Langenhove & Co claimed that the mere “sharing of jokes” should not be penalized. The Court rejected this reasoning: “The “humor” used at S&V was deliberately and systematically employed to make racism accessible and light-hearted. By encouraging frequent posting of racist and negationist “humor”, members were deliberately and gradually convinced of their own superiority and the need to achieve S&V’s goals, through discrimination and violence” [p. 17]. Thus, the Court convicted Dries Van Langenhove to a one-year prison sentence, a fine of 16,000 euros and a ten-year ban from political life for the crimes of belonging to a racist group, denying the Holocaust, spreading ideas based on racial hatred, inciting racial discrimination and selling prohibited weapons.

The Court’s response: Appropriate limitation or humor under attack?

What can be said about the Belgian Courts’ response to these events from a freedom of expression perspective?

In the S&V case, Van Langenhove’s punishment is especially pushing the legal boundaries: he was given both the maximum prison sentence and ban from political activities, only his – already substantive – fine could have been a bit higher. This is probably because he and his lawyer refused to plead the case, which did not allow the judge to take many exonerating circumstances into account. If Van Langenhove does defend himself on appeal, a lowering of his sentences will be likely. However, a complete exoneration for Van Langenhove & Co will likely fall flat given the concrete context of the impugned statements. It is incorrect to assume that S&V-members were convicted for the “mere sharing of memes”. Indeed, the Court repeatedly emphasizes how S&V’s organizational structure was focused on creating an “atmosphere of collective fanaticism” [p. 19]. This becomes clear from the context in which the memes were shared, such as the preparation for armed fight by offering pepper spray to defend themselves [p. 40] and statements by Van Langenhove such as “the day of violence will come – I know which side will be prepared and which will not” [p. 19]. Many references to ‘white ethno states’ were made in S&V’s internal communication, e.g. “2027, Flanders shows European countries the way after the coup by Schild & Vrienden” [p. 18]. Furthermore, many of the memes had been created upon explicit request by Van Langenhove to get across racist messages [p. 17]. Besides, the documentary showed that S&V clearly did not consider others’ right to free speech a top priority: Van Langenhove used S&V as a so-called troll army to boycott some events by the communist youth organization COMAC or a feminist lecture at the Ghent University. All this speaks contrary to S&V’s plea that mere jokes are being put under scrutiny by the Belgian judiciary. The S&V case does not set a dangerous precedent that privately sharing an ill-tasted meme will from now on be criminally sanctioned. Instead, it should be considered yet another example of the European judiciary trying to find an appropriate response to deal with the rise of extreme-right. Nevertheless, one can wonder if this is the most effective response to combat the rise of populism – or will exemplary convictions like this drive like-minded voters further into the “welcoming” arms of far-right populist parties, such as Vlaams Belang? We won’t have to wait too long to find out: Belgium’s next elections are scheduled for next June, and all the polls are indicating that Vlaams Belang will do extremely well.

The Acid case, on the contrary, does give rise to some free speech concerns. Here, the First Instance Court blatantly ignored some factors that are normally considered relevant when Article 10 ECHR is at stake. First, statements made regarding criminal proceedings are often made in the context of a tense, emotional public debate where Article 10 ECHR protections are crucial (for example, White v. Sweden, § 29; Dupuis and Others v. France, § 42). Second, the Court failed to differentiate between facts and value judgments when evaluating Acid’s speech (e.g., Lingens v. Austria, § 46). Acid did not make any false accusations towards Donald; he admitted that Donald was not present at the hazing ritual, but claimed that it was not just about Sanda Dia’s death. Acid wanted to paint a picture of how Reuzegom operated in general, and Donald, as former president, played a crucial role here (2:32-2:45). Third, the personal information “leaked” about Donald and his parents was already made public: Elio’s full name was mentioned in a book called “Dehumanized: Behind the scenes of the Reuzegom Fraternity” by journalist Douglas De Coninck. The journalist stated that “the names of non-public figures involved were abbreviated to their initials for the sake of privacy” (p. 5), implying that Donald De Vinck De Winnezeele could thus be considered a public person – possibly because of his political career. According to ECtHR criteria, this opens him up to closer public scrutiny (e.g., Lingens v. Austria, § 42; Dickinson v. Turkey, § 55). Fourth, the First Instance Court wrongly invoked the incitement to hatred doctrine [p. 14]. According to the Court, Acid’s intent to incite hatred was clear from his wish to “cancel” and “expose” Donald and his ominous closing remarks stating, “the more you know…”. However, this is no call for action according to the ECtHR criteria (e.g., Perinçek v. Switzerland, §280; Erkizia Almandoz v. Spain, §44). Acid never calls for action against Donald or the restaurant, but only briefly mentions the high-class restaurant to sketch Donald’s social background. Lastly, the Court dismisses Acid’s satire defense on unacceptable grounds. After publishing the video, Acid gave a TV-interview and posted another (sarcastic) video called “I’m Sorry, Reuzegom, Really Sorry”, in which Acid did not argue that his previous video was meant to be satire. Thus, according to the judge, bringing up satire now is a mere “post-factum defense” [p. 13] that cannot be used as justification. Besides the obvious concerns – aren’t all defenses post-factum by nature? -, ECtHR rulings on satire (e.g., Eon v.  France; Alves da Silva v. Portugal) do not demand the author to make the satirical nature of their content explicit. One might argue that this requirement would completely miss the point of the satirical joke in the first place…

Besides these obvious concerns from the Strasbourg perspective, there is another worrisome aspect to this ruling: the Court’s (or should I say: judge’s) clear distaste for influencers. This is already implied when the judge admits they would have preferred to give Acid a community service instead of an imprisonment sentence to “introduce the defendant to labor in the non-virtual world” [p. 14]. It becomes, however, blatantly obvious when the Court lists as aggravating circumstance: “the defendant’s blind and addictive drive for followers and views on social platforms for the purpose of attention and profit, resulting in abuse of the gained influence, initiation of completely thoughtless “stunts” and incitement to hatred after the personal details of the first and second civil parties were made public.” [p. 14]. It is not clear to me why an influencer’s wish for his business to be profitable – something that could, undoubtedly, also be attributed to any given newspaper or TV station – should be considered an aggravating circumstance in a criminal sentence. Nor did Acid, as mentioned above, initiate any thoughtless “stunts” in the Reuzegom-video. The Court possible referred to some of the influencer’s other stunt-like videos, which were, however, not under scrutiny in the present case. 

What’s next?

So, where do we go from here? As mentioned above, Van Langenhove & Co is getting combat-ready to bring their case to the Appellate Court, where I suspect Van Langenhove’s maximum sentences will be moderated, but their general free speech defense will fall flat. Acid, on the contrary, decided earlier this week to resign to the Court of First Instance’s decision. After his conviction, a crowdfunding campaign has raised over 175,000 euros to help pay Acid’s fines, legal fees and civil compensation. The influencer has pledged to donate the rest of the money to the Sanda Dia Foundation. From a pragmatic point of view, what’s the point of an appeal if Acid has clearly won the case in the eyes of the public? After the judgment, the restaurant got flooded with, yet again, a new wave of negative reviews. So, maybe it’s in all parties’ best interest to let bygones be bygones. And maybe it’s in the courts’ best interest to aim for greater consistency with the principles of the ECtHR’s Article 10 jurisprudence.

Babette De Naeyer is a Ph.D. candidate at the Universitat Pompeu Fabra in Barcelona. Her research focuses on the internet and social media’s impact on citizens’ right to freedom of expression. She specializes in Article 10 ECHR jurisprudence, the EU’s Digital Service Act, and comparative legal studies between the European system and the US First Amendment doctrine.