Turmoil for Facebook in Belgium : in a procedure between parents, the Justice of the Peace of Ninove forbade both of them to “publish any defamating or insulting comment on public fora, such as social media”. The order of May 3rd, 2012  stands (except appeal) for one year, and is accompanied by a penal sum of €100 per offense.

The first comment.

In De Juristenkrant, an excellent two-weekly newspaper of Kluwer, Professor Gerd Verschelden (Ghent University) accepts the legal grounds of the ruling, as consistent with free speech (art. 19 Belgian Constitution & art. 10 ECHR).

He argues the insults of the husband’s Facebook page already knew wide publicity: in that respect, the order seems not to be a ‘preventive’ one. On the other hand, the prohibition finds its place within the competence of a “family court”: before a Justice of the Peace, ‘urgency’ matters. in that case, also the kids of this pair in war might suffer psychological damage by irresponsible behaviour of a parent.

Justice and social media.

The clash between justice and social media is no wonder. Whereas in Belgium, Facebook and Twitter are frequently and succesfully used by police units, they are unheard from in the courts. The almost complete ignorance of judges on social media leads to unexpected interventions when the item appears.

In april 2010, the deputy Justice of the Peace of Waregem rejected a claim of a student about neighbourhood noise. The reason ? He consulted the Netlog profile of the student and discovered she did not like her studies very much. So he concluded no much harm could be made to her career, failing examinations. Yes, this investigation took place after the case was pleaded in court, and without any demand or suggestion, and without any hearing on that point before ruling.

Both judgements might illustrate  Belgian judges - conservative or at least uneasy in the matter - risk going too far or too quick in ruling about media that are new to most of them.

That way, Facebook seems to be treated in a discriminatory way, although the point that was to be settled in court is not so much different as with more classic technics of communication as gossip in a phone campaign or at a an afterparty.

There is hope, however: in February this year, a judge in Suriname ordered the two adverse parties to post apologies to each other.... on Facebook !

Justice and family.

At the end of my almost 25 year tenure as a Justice of the Peace, I yearly settled more claims by succesfull ‘conciliation’ (1744 anno 2010) than I had judgements after legal proceedings at the time my arrival (1737 anno 1987).

This is particulary useful in family matters, where a ‘eyeball to eyeball justice’ can convince partners and parents of a less conflictual approach.

Judges should seek first of all this way of negotiating parents out of the ambush of hate and distrust. When this appoach succeeds, the Facebook page will cool down automaticly.

Alas, statistics prove that demands for ‘conciliation’ dropped drastically during the past years: minus 33% in 2008-2010 (see my blog of November 13th 2010 here).

This trend is not fully due to a desinterest of the public, but of many judges themselves, who seem more inclined to write judgements home on their laptops than to intervene in court as a social conciliator. Ordering is almost always somewhat easier than negotiating.

The first problem the judge was facing: legal technics in court procedure.

The at least partly preventive order was asked for by the wife and mother, against her husband, but finally the ruling addressed both partners.

In that way, it seems an ordeal somewhat “ultra petita”, and in that measure illegal: a judge can not – in such a case – go farther in his ruling than is asked for by parties.

At the same time, not only the rights of the wife on her own Facebook page might be infringed (someting she certainly did not ask for), but also her rights on a due process: as seen in the earlier Waregem-case, she seems to be confronted with the judge’s ex officio reasoning, without having be invited to defend herself on that point.

The second problem the judge was facing: Civil Rights.

The fact that the plaintiff will be pretty pleased with the order against her husband does not change the legal argument: this is the more so, because in her case, the order was apparently indeed fully ‘preventive’, and in that respect in any way contrary to the Belgian Constitution and essential Civil Rights.

The third problem the judge creates: defining and guaranteeing the execution such an order.

Let’s not quarrel about the judges good intentions, but not forget Oscar Wilde’s quote: “It is always with the best intentions that the worst work is done”.

Its relatively easy to guess what the judge had in mind, forbidding “defamating or insulting comment”.

Any judgement by a Civil or Penal Court (eventuelly on the grounds of art. 443 Belgian Penal Code) can come the a conclusion on that matter and sentence the culprit to (fines and) damages.

It’s an other cup of tea to forbid this for the future with the sanction à €100 per infringement.

Parties risk now another procedure before the Judge of Seizures, disputing the relevance of certain comments, and the €100 that each time would be forfeited, or not.

Indeed, the court order does evidently not forbid any further comment of the husband on Facebook, but what if he criticises his wife’s demand (or the court ruling) on Twitter ? What of he excells the qualities of his mistress on Facebook?

That way, the family war is not ended, but just going on with an extra incentive: money.

The real problem, and the heart of the matter.

Judges must show they ‘care’ about the families in distress. ‘Conciliation’ (Art. 731 Belgian Code of Procedure) is an excellent tool for rendering justice without creating losers and winners. But once this fails, “alors la justice fait sa main”, as Voltaire wrote.

Law is not pedagogy. Judges are no teachers and no preachers.

Judgement should be extremely prudent about infringing on the freedom of speech, and the well-being of a family – another shaky definition – should be no excuse.

When everybody is brought to silence, there might be an uneasy peace, but no justice any more.

Follow me on Twitter@NolfJan

Photo of the day:

Not Lady Justice: just selling shirts before a French lawyers office, during market day in the Vercors (France).

Press of the day:

2012 06 28 Bespreking vonnis vrederechter Ninove door professor G. Verschelden (Juristenkrant)

2012 05 03 Vonnis vrederechter Ninove (link Legal World).

Nota: het vonnis vermeldt in de hoofding ten onrechte de term ‘beschikking’, voorbehouden aan niet-tegensprekelijke procedure, zonder uitspraak in openbare terechtzitting.

2012 06 28 ‘Vrederechter verbiedt scheidende echtgenoten elkaar te beledigen op Facebook’ (DS)

2012 06 28 ‘Rechter uit Ninove verbiedt scheidend paar elkaar te beledigen op Facebook’ (DM)

2012 06 28 ‘Father in Iran arrested because of son’s Facebook in the Netherlands’ (The Guardian)

2012 02 06 ‘Surinaamse rechter beveelt excuses via Facebook’ (RNW)

2010 04 24 ‘Vrederechter baseert uitspraak op Netlog’ tDS)

2012 06 28 ‘Voorstel Milquet is aanval op recht op vrije meningsuiting’ (De Wereld Morgen)

2012 06 27 ‘Gullit, ex-spion ?’ (Opinie J. Nolf VRT De Redactie)

2012 06 19 ‘Beslissing over wraking diamantrechter uitgesteld’ (DS)

2012 06 21 ‘Vie privée, vie publique: le Tweet de Trierweiler’ (Le Monde)

2012 06 20 ‘La jalousie te crèvera le coeur’ ( Emission ‘Service Public ‘sur France Inter)

2012 06 21 ‘Geschreven getuigenverklaringen volstaan bij echtscheiding’ (Link via Legal World)

Quote of the day:

“Tout homme doit être poli, mais aussi il doit être libre”

Montesquieu, Cahiers  1716-1755

op de markt van La Chappelle - en Vercors aangekocht à €13 (édition Grasset 1941)

Poem of the day:

“ Neutralité cet instant

comme un centre égalisant un peu

jusqu’à rien ce que je connaissais encore

et ce que je connaissais déja

Non le noeud mais le nu

entre les atteintes de l’avenir

et les costumes du passé

seulement instant cette absence

...

Afzijdigheid dit ogenblik

als een middelpunt dat

wat ik nog kende

en wat ik reeds ken

een beetje in evenwicht brengt

Niet het kluwen maar het naakte

tussen de inbreuken van de toekomst

en de vermommingen van het verleden

dit ogenblik enkel afwezigheid”

Christian Dotremont, ‘Chronique’ (uit ‘Ceci n’est pas une poésie’, Een Belgisch-Franstalige Anthologie belge francophone’ van Barnard, Dirkx & Lambersy (Atlas 2005)