When Public Demands and Disclaimers Become Harassment: A Belgian Legal Perspective on Mailing List Conduct

When Public Demands and Disclaimers Become Harassment: A Belgian Legal Perspective on Mailing List Conduct

Published: 2026-04-04

Introduction

Mailing lists are vital to free software communities. They are where volunteers help strangers, bugs get fixed, and knowledge is shared. But what happens when a participant shifts from technical discussion to personal attacks? When does persistent public criticism cross the line into criminal harassment under Belgian law?

This article examines Belgian harassment law (Article 442bis of the Penal Code) as it applies to mailing list conduct — specifically, patterns of behavior that involve repeated demands for disclaimers, public shaming, and orchestrating others to pile on. No specific individuals or email addresses are named. The goal is to inform, not to accuse.

The Legal Framework: Article 442bis of the Belgian Penal Code

Belgian law criminalizes harassment under Article 442bis of the Penal Code. The article states that any person who has harassed another person when they knew or should have known that this would seriously affect the peace and tranquility of that person shall be punished by imprisonment from fifteen days to two years and a fine of fifty to three hundred euros (multiplied by legal decimes), or only one of these penalties .

The law deliberately does not provide a strict definition of “harassment.” This is intentional: it allows judges to interpret the concept in line with an evolving society, including new forms of online behavior .

However, Belgian courts and legal scholars have established several key criteria for determining when behavior constitutes harassment under Article 442bis.

The Three Elements of Harassment

1. Repeated or Continuous Conduct

For behavior to constitute harassment, there generally needs to be continuous or recurring conduct. A single isolated incident is unlikely to qualify. However, the Belgian Court of Cassation has recognized that even a single act can constitute stalking if it has “unremitting or recurring consequences” — for example, posting a video online that remains visible for a long time and continues to cause harm .

In the context of mailing lists, repeated posts targeting the same person over several days or weeks would satisfy this element. Each new message demanding a disclaimer, each public criticism, each call for others to join the attack — these accumulate into a pattern of continuous conduct.

2. Serious Disturbance of Peace and Tranquility

The behavior must seriously disturb the victim’s peace and tranquility. The legislator did not define what constitutes a “serious” disturbance, leaving it to judges to assess based on the circumstances .

In practice, courts consider both:

The consequences subjectively experienced by the victim
The consequences that, in common opinion, the contested behavior may have on the population or social environment concerned

Public shaming on a mailing list — where hundreds or thousands of subscribers witness the attacks — would likely satisfy this element. Being repeatedly called out, demanded to change personal choices (like an email address), and subjected to coordinated criticism creates a hostile environment that seriously disturbs peace and tranquility.

3. Knowledge or Should Have Known

The perpetrator must have known or should have known that their behavior would seriously disturb the victim’s peace .

This is a crucial element. The law does not require the harasser to have malicious intent. It is enough that they “should have known” — meaning that a normal, careful, and forward-thinking citizen would recognize that such behavior causes serious disturbance .

In practice, if the victim explicitly tells the harasser to stop, that is the clearest possible evidence that the harasser now “knows” their behavior is unwanted. Continuing after being told to stop removes any possible defense of ignorance.

Specific Behaviors That May Constitute Harassment

Repeated Demands for Disclaimers

On its face, asking someone to add a disclaimer to their emails is not harassment. It becomes harassment when the demand is repeated, public, and accompanied by shaming.

Belgian law focuses on the effect of the behavior, not the content of each individual message . If someone repeatedly demands that another participant change their email address or add a disclaimer — day after day, post after post — and does so in a way that seriously disturbs that person’s peace, the behavior may meet the legal definition of harassment.

Public Shaming

Publicly shaming someone on a mailing list is a form of behavior that Belgian courts would likely consider seriously disturbing. The law protects individuals from being targeted in a way that exposes them to public contempt .

When the shaming is repeated — the same criticisms, the same demands, posted over and over — it moves from criticism to harassment. The public nature of mailing lists (archived, searchable, visible to thousands) amplifies the disturbance.

Orchestrating Others to Pile On (“Mobbing” or Raid)

One of the most significant developments in Belgian harassment law is the recognition of coordinated attacks. In 2019, Belgian parliamentarians proposed modifying Article 442bis to explicitly address “cyberharcèlement en raid” (cyberharassment by raid) .

The problem identified was that traditional harassment law requires repetition by the same person. But in a coordinated attack, 200 different people might each send only one message. Individually, none of them meet the “repeated conduct” requirement .

The proposed modification would treat as harassment situations where:

Facts are imposed on the same victim by several persons in a concerted manner or at the instigation of one of them, even if each person did not act repeatedly
Facts are imposed on the same victim successively by several persons who, even without concertation, know or should have known that their words or behavior characterize a repetition

Even without this modification (which may or may not have been enacted), Belgian courts have recognized that organizing others to target a victim is an aggravating factor. Recruiting others to pile on, especially when the instigator is in a position of influence or leadership, demonstrates knowledge that the behavior will seriously disturb the victim .

In the Flemish YouTube war case, the court considered that the influencer “could have foreseen that publicly sharing provocative and offensive statements aimed at a competitor would result in a storm of hateful messages and comments” directed at the victim . The same logic applies to mailing lists: if you publicly shame someone and call for others to join, you should know what will happen.

False Accusations (Defamation)

Making false accusations — such as claiming someone sent “threatening” messages when they did not — may constitute defamation under Articles 443-444 of the Belgian Penal Code.

Defamation requires:

A malicious accusation of a specific fact
That could harm the victim’s reputation or expose them to public contempt
Made publicly (on a mailing list, this element is clearly satisfied)

If the accusation is false and the accuser knew it was false (or should have known), the behavior is criminal. Even if it does not meet the threshold for criminal defamation, false accusations are evidence of malicious intent and aggravate the harassment.

The “Should Have Known” Standard in Mailing List Contexts

The “should have known” element is particularly important for mailing list harassment. The harasser does not need to intend to harass. It is enough that a reasonable person in their position would know that their behavior seriously disturbs the victim .

Several factors help establish that a harasser “should have known”:

The victim’s protests: If the victim publicly or privately asks the harasser to stop, the harasser now knows.
Community norms: If other list participants point out that the behavior is unwelcome or excessive, the harasser should know.
The harasser’s position: If the harasser is an experienced community member, they are held to a higher standard. They should know how mailing lists work and what constitutes acceptable conduct .
The obviousness of disturbance: Public shaming, repeated demands, and orchestrating pile-ons are obviously disturbing to any reasonable person.

What Is NOT Harassment

It is important to distinguish harassment from legitimate disagreement. Under Belgian law, the following are generally not harassment:

A single request for a disclaimer, made politely and not repeated
Genuine technical disagreement
Criticism of ideas, not of persons
One or two messages that do not create a pattern of repeated conduct

The key is repetition, public nature, and the effect on the victim’s peace. A disagreement is not harassment. A campaign is.

Practical Steps for Victims

If you believe you are being harassed on a mailing list, Belgian law provides several avenues for relief:

1. Clearly Ask the Harasser to Stop

Send one clear, written message stating that the behavior is unwanted and demanding that it cease. Keep a copy. This removes any claim that the harasser “did not know” .

2. Document Everything

Save all messages, including full email headers. Record dates and times. Do not alter the evidence. Screenshots and logs are essential .

3. File a Complaint with the Police

You can file a complaint with Belgian police. Since 2016, harassment under Article 442bis is no longer a “complaint-only” offense — the public prosecutor can pursue charges even without a formal complaint, though a complaint is still helpful .

The complaint should include all documentation. The Computer Crime Unit may be involved in identifying the harasser if they are anonymous .

4. File a Complaint with the Investigating Judge

If police action is insufficient, you can file a complaint directly with an investigating judge (plainte avec constitution de partie civile). This forces a judicial investigation .

5. Seek a Contact Ban (Contactverbod)

In urgent cases, you can seek a civil court order prohibiting the harasser from contacting you. Violation of the order results in penalties (dwangsom/astreinte) .

Practical Steps for List Moderators

Mailing list moderators who observe potential harassment have both legal and ethical obligations:

Do not ignore it. Silence can be interpreted as tolerance.
Warn the harasser privately. Make it clear that the behavior is unwelcome.
Remove posts that constitute harassment. Public shaming, false accusations, and orchestrated pile-ons have no place on technical lists.
Ban repeat offenders. If warnings are ignored, removal is appropriate.
Document moderation actions. In case of legal proceedings, records matter.

Penalties and Practical Realities

The theoretical penalties for harassment under Article 442bis are imprisonment from fifteen days to two years and fines from fifty to three hundred euros (multiplied by legal decimes, making them significantly higher in practice) .

In practice, first-time offenders are more likely to receive fines ranging from a few hundred to several thousand euros . Prison sentences are possible, particularly for repeat offenders or cases with aggravating factors.

However, victims should be aware of a significant practical reality: Belgian courts are overburdened. Cyberharassment cases can take years to resolve. One lawyer recently described a case where the first harassing messages were sent in 2013, and the case was still pending in 2025 .

This does not mean the law is toothless. It means victims need patience and persistence. It also means that prevention and moderation — stopping harassment before it requires legal intervention — are critically important.

Conclusion

Belgian law provides clear protection against harassment, including harassment that occurs on mailing lists. Repeated demands for disclaimers, public shaming, orchestrating others to pile on, and false accusations can all constitute harassment under Article 442bis of the Penal Code.

The key elements are repetition, serious disturbance of peace, and the harasser’s knowledge (or should-have-known) that their behavior would cause such disturbance. When a victim clearly asks the harasser to stop, continued behavior becomes willful harassment.

While Belgian courts are overburdened and cases take time, the law is on the side of victims. The best outcomes come from early intervention: clear requests to stop, documentation, and escalation to moderators before legal action becomes necessary.

For free software communities, the lesson is clear: technical lists should remain technical. Personal attacks, public shaming, and coordinated pile-ons have no place. They are not just unwelcoming — they may be criminal.

This article is for informational purposes and does not constitute legal advice. Persons who believe they are victims of harassment should consult with a qualified legal professional.

References

Primary Legislative Source

Proposition de loi complétant l'article 442bis du Code pénal (2003) - https://www.senaat.be/www/?MIval=publications/viewPubDoc&TID=50331974&LANG=fr

Legal Analysis & Case Law

The Flemish YouTube war: a storm in a teacup or a call for change? (Part II) - CiTiP/KU Leuven (2020) - https://www.law.kuleuven.be/citip/blog/the-flemish-youtube-war-part-ii/

Legal Definitions

Harassment - stalking - De Groote - De Man law firm - https://degroote-deman.be/en/product/harassment-stalking/

Criminal Defamation (Articles 443-444)

Criminal Defamation in Belgium - International Press Institute - http://legaldb.freemedia.at/legal-database/belgium/

Parliamentary Questions & Statistics

Question écrite n° 7-239 (2019) - Harcèlement - Nombre de plaintes - https://www.senaat.be/www/?MIval=Vragen/SchriftelijkeVraag&LEG=7&NR=239&LANG=fr

Question écrite n° 5-8575 (2013) - Délit sur plainte - Harcèlement - Aperçu - https://www.senaat.be/www/?MIval=Vragen/SchriftelijkeVraag&LEG=5&NR=8575&LANG=fr

Legislative Index

Table des matières concernant “harcèlement (stalking)” (1999-2003) - https://www.senaat.be/www/?MIval=Registers/List&ACTIE=Z&ID=606203&LEG=2&FICHES=Y&LANG=fr