Government’s list of suspended sportsmen taken off-line following decision of Court of Arbitration

28 April 2005

Johan Vandendriessche, Peter Van de Velde

Over the course of the last few years, the Flemish regional government has been progressively intensifying its battle against doping in sport. As part of this anti-doping campaign, the Flemish government now operates a website on doping (www.dopinglijn.be).

Article 40 §6, 2° of the Flemish Decree of 27 March 1991 on the medically justified practice of sports (as amended by the Flemish Decree of 19 March 2004) provides that:

The disciplinary suspensions of adult sportsmen shall be made public on a website operated by the government thereto and by means of the official communication channels of the sports federations. This publication shall include (i) the surname, first name and date of birth of the sportsman, (ii) the starting and ending date of the suspension period and (iii) the sports discipline in which the offence was established.

Although the Belgian Data Protection Commission delivered negative advice[1] on the publication of such personal data on a government website, the Flemish government nevertheless decided to proceed with the publications.

In one case, a suspended cyclist who considered that his privacy rights had been violated by the on-line publication of his personal data, brought an action before the Court of Arbitration challenging the specific part of Article 40 §6, 2° that refers to the publication of such data “(…) on a website operated by the government”.

The Court of Arbitration is Belgium’s Constitutional Court and, as such, has the ability to review laws and regulations that may be in breach of, inter alia, the fundamental rights and liberties guaranteed by Section II of the Constitution (Articles 8 to 32). The suspended cyclist claimed that Article 40 §6, 2° violated his right of respect of privacy as protected by Article 22 of the Belgian Constitution (and by Article 8 of the European Convention on Human Rights and Article 17 of the International Covenant on Civil and Political Rights).

The Court of Arbitration held that the publication of personal data on the government’s website did indeed constitute a disproportionate interference with this right. The Court decided that the publication of the personal data of the suspended sportsmen on a publicly accessible website was not proportionate to its objective, i.e. the effective enforcement of a suspension order, which could instead be achieved by less intrusive and prejudicial means.

Accordingly, the Court of Arbitration decided to annul the words “on a website operated by the government thereto[2] in Article 40 §6, 2°

Following this decision, the Flemish government immediately removed the list of suspended sportsmen from its website. The government may still create lists of suspended sportsmen however, but must publish these lists by less intrusive means, such as in a subscription newsletter.







[1] Advice of 14 April 2003 on the draft Flemish Decree amending the Flemish Decree of 27 March 1991 on medically justified practice of sports.



[2] Judgment 16/2005 of 19 January 2005. Prior to the annulment, the Court of Arbitration had also already suspended the use of these specific words in Article 40 §6, 2° (Judgment 162/2004 of 20 October 2004).