Fans of Flanders

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Flags, as the Urban Dictionary would have it, are "pieces of cloth that are taken far too seriously". A definition that, at least up until recently, did not hold for the Belgians. As I discussed in a previous blog, people here tend(ed) to deal with flags in a rather disinterested and nonchalant way. One example of this disinterest is the fact that the Belgian flag is used about as much as a chocolate teapot. 

At least, it used to be. On this point, I now stand corrected by the veritable tapestry of Belgian flags adorning the streets. Apparently it was merely for want of a decent football team that the flag wasn’t much in evidence during the first, well, 15 years that I lived here(1).

Even during the governmentless period (the previous one, that is, in 2010-2011…), when many people hoisted the national flag out of protest against the country’s political impasse, the number came nowhere near the current 'extraflaganza'. 

'This flag is brought to you by Jupiler'

The increased usage notwithstanding, the nonchalance in dealing with the flag does seem to persist though. If anything, it may even have 'aggravated'. Particularly striking, in this respect, is the commercial nature of many or even most flags: Belgian Coca-Cola flags, Belgian Brussels Airlines flags and – especially – countless Belgian Jupiler flags.

Someone wandering into Belgium by chance might be forgiven for believing that the nation’s flag isn’t just a tricolour of black, yellow and red, but that it, additionally, features a roaring black bull at its center (named 'Jupiler').

Interesting, from an 'expat perspective', are the discussions that this 'flagvertising' gave rise to, and – more importantly – the ones it did not give rise to.

Flag tax

To start with the former: the commercial flags led to a debate about whether people displaying them from their homes weren’t formally required to pay taxes. As tax law professor Michel Maus pointed out: many municipalities levy a special tax, of 50 euros, on any sign or banner featuring product names. And these regulations tend not to provide exemptions for football purposes.

In the city of Aarschot this even led to a political discussion, with the Flemish nationalist N-VA stating that "these flags, promoting a Walloon beer brand [note: Jupiler is brewed in Liège], are inconsistent with our rules on advertising", asking the municipality what it planned to do about the issue. The party clarified that it did not so much wish for all Red Devils supporters to be fined or taxed: "We just want to point out to the municipality that they ought to think twice before voting for something".

Aarschot’s Christian-democratic mayor responded, saying that he would take a critical look at the regulations, while the alderman for cultural affairs laughed off the remarks: "I think a lot of football supporters will resent the N-VA, if this question results in them having to take down their flag". 

Flag desecration?

That the 'flagvertising' discussion focused on taxes (and tax evasion) is just as telling as what it did not focus on, i.e.: the more emotional or patriotic issue of what uses of the flag are considered 'proper'. In many other countries it would simply be 'not done' to plaster a company logo over the national standard. The French, for instance, would be likely to reintroduce the guillotine if Coca-Cola were ever to desecrate their national bleu-blanc-rouge with its logo(2).

In quite a few countries it’s even (more or less) prohibited to do so. In the United States, for instance, the Flag Code limits the commercial use of the flag, in order to "maintain its dignity", stipulating that the flag should never be used for advertising purposes in any manner whatsoever (4 U.S.C. § 8(i)). Though it is important to keep in mind that this Code is not legally binding, in the past the Supreme Court has ruled that states may restrict the commercial use of the flag, and several states in fact do so(3).

Other countries use trademark law to reach similar results. In Canada, for instance, the Trade-marks Act protects the flag against unauthorized use, with permission being required for commercial usage. Permission can only be granted if the flag (or representations of it) is used in a 'dignified manner'. This requires, inter alia, that the flag is not "defaced by way of printing or illustrations or masked by other objects"; say, by means of alcoholic bulls(4)

The flag as a prop

Similar sensitivities vis-à-vis the national flag simply do not exist in Belgium; let alone regulations to this end(5). People, many of whom probably didn’t even own a 'real' Belgian flag, simply flew the one they received along with their beer (cheers!), as a means to support their football team, and little more than that: the flag as a temporary festivity prop. It is difficult to imagine, for instance, that the coke or beer flags will be flown on the upcoming Belgian National Day, on July 21st.

As such, we probably needn’t fear (or, as the case may be, 'hope') that the increased presence of the national tricolour is indicative of a new 'flagitude', much less of an underlying wave of nationalism. The country’s disarming disinterest and nonchalance in this regard seem alive and well.

(1) And interestingly, it’s only football that brings out this degree of public flagging, since the country has known other sports successes, i.e. in cycling, tennis and volleyball.

(2) France also has an actual ban on flag desecration, which was introduced by Decree n° 2010-835 of 21 July 2010 ("relatif à l’incrimination de l’outrage au drapeau tricolore"). However, this ban does not, in principle, target mere commercial use of the flag, but rather more far-reaching and intentional forms of (public) 'desecration' (destruction, damaging, burning, etc).

(3) See Halter v. Nebraska, 205 U.S. 34 (1907). However, see also, more recently, United States v. Eichman, 496 U.S. 310 (1990) and Texas v. Johnson, 491 U.S. 397 (1989). The latter cases suggest that, while commercial speech does not receive the highest level of protection under the First Amendment, the present-day precedent status of the older case-law, like Halter, cannot be taken for granted.

(4) And while Australia, for instance, allows commercial use of the national flag without formal permission, the flag must – if it is used in this context – be "reproduced completely and accurately", and it may "not be defaced by overprinting with words or illustrations".

(5) Although there were, in fact, a few parliamentarians that have, during the past terms, submitted bills in order to criminalize flag desecration (see e.g. here, here, here and here). However, as in France (see footnote 2), these bills did not, in principle, target commercial use like that of Jupiler. Moreover, the bills have been systematically ignored in parliament (and rightly so). 

Jogchum Vrielink

Jogchum Vrielink is a Dutch national, working at the Law Faculty of the University of Leuven (Leuven Institute for Human Rights and Critical Studies (LIHRICS)). He came to Flanders in 1999, for a year. It has turned out to be a long year...