New private investigations law published: significant changes in a nutshell

On 6 December 2024, a significant new law regulating private investigations in Belgium was published, marking a substantial update to the outdated law of 19 July 1991. This new legislation, adopted on 8 May 2024, reflects modern legal standards, working methods, and investigative possibilities, and aims to enhance the protection of individuals involved, especially regarding personal data processing. Key changes include an expanded scope, permit procedures, and new substantive obligations for both investigators and their principals. This article highlights the critical aspects of the new law and its implications for businesses involved.

Scope of the law

Compared to the law of 19 July 1991, the new law broadens the scope of application. As a result, more companies will fall under the expanded scope.

In the sense of the law of 19 July 1991, a private detective is considered to be any physical person who, whether or not in a subordinate capacity, regularly performs the following activities for payment and for a principal:

• tracing missing persons or lost or stolen assets;
• gathering information about the marital status, behaviour, morality and state of property of persons;
• gathering evidence for the establishment of facts that give rise to conflicts between persons, or that may be used to end such conflicts;
• tracing corporate espionage;
• any other activity determined by Royal Decree deliberated on in the Council of Ministers.

The new law specifies that private investigation activities may only be carried out by natural persons (the task holder) on behalf of a principal. The principal can be either a natural person or a legal person. The new law considers private investigation activities as those that meet the following cumulative conditions: 

• the activity is carried out by a natural person;
• the activity is performed on behalf of a principal;
• the activity includes the gathering of information through processing data about natural or legal persons or concerning the facts of their actions;
• the objective of the activity is to provide the collected information to the principal to safeguard its interests in the context of a (potential) conflict or to trace missing persons or lost or stolen assets.

Here are some examples of activities that will, in principle, fall under the scope of the new law: 

• Internal services for private investigation within companies (such as in-house investigation departments);
• Fraud investigations and detection of corporate espionage, regardless of who or what conducts these investigations;  
• Investigations in case of arson, counterfeiting, forgery, or theft of goods; 
• Vehicle experts investigating the accuracy of an incident for the purpose of verifying that no fraudulent declaration was made to the insurance company; 
• Internal control and risk management by government audit departments, financial supervisors and Federal Ombudsperson when sleuthing is done on individuals solely due to the interests of one party in a conflict. 

Furthermore, the law explicitly excludes certain professional activities from being classified as private investigations, including those carried out by journalists, statutory auditors, civil servants, and public service agents.

Activities in execution of legal obligations or assignments for which private investigations are not pursued as a purpose but only as consequence of these obligations and assignments, are also excluded. Such activities include, for example, legal investigation obligations of a prevention advisor or based on the Whistleblowers Act of 28 November 2022. However, it is highly probable that this will become subject to discussions. With respect to whistleblowers, a particular consideration is, for example, whether the new law should be applied to the entire investigation or only during specific stages. Furthermore, there is the issue of how to proceed when a report is made that falls outside the scope of the Whistleblowers Act.

A special exception also applies to members of a human resources department. These members are not required to have any kind of permit (as introduced by the new law) but must perform their activities in accordance with the law when they carry out activities of private investigation on behalf of their own employer within the framework of an incident investigation.

However, what is to be understood by incident investigation remains unclear, as the new law fails to define this term. This raises questions regarding the scope of the exception. It seems, however, that the law aims to exempt HR from purely HR-related incident investigations. While providing assistance in fraud investigations appears to be permissible, this does not imply that HR is authorised to conduct all fraud investigations without the necessary permit.

Practice will have to show exactly which cases will (not) fall under the scope of the new legislation.

Substantial obligations

The law introduces several substantial obligations for both the task holder and the principal. 

The main obligation introduced by the law concerns the obligation to obtain a permit. This obligation is applicable for: 

1. Companies providing private investigation activities on behalf of or for third parties (in which case a combination with other activities not covered by the permit is in principle forbidden – this prohibition does not apply to internal services and these companies can, however, be granted a permit as security consultancies); 
2. An internal department that carries out private investigation activities on a structural basis and for its own needs; 
3. Training institutions that offer or organise trainings related to private investigation activities. 

The permit is granted by the competent Minister of the Interior for a period of five years, subject to compliance with its conditions and with the code of conduct. It can be renewed, provided that private investigation activities were carried out during the two years preceding the renewal application. 

Other important obligations are for example: 

• The obligation for a principal to have regulations/policies in place regarding the private investigation of its employees; 
• Obligations regarding ways of obtaining and securing information and GDPR-obligations; 
• The obligation for the task holder to draw-up a written engagement letter and an objective investigation report containing mandatory information supported by the necessary documents. If the report does not meet these criteria, it cannot be used as legitimate evidence; 
• Provisions as to which investigation acts may (not) be carried out and under which conditions. 

Many of these obligations are prescribed under penalty of nullity, so that compliance with these provisions is of the utmost importance for the task holder and the principal.

Transitional provisions

The law was published in the Belgian Official Journal on 6 December 2024 and entered into force on 16 December 2024 (except for the obligation to obtain a permit which comes into effect six months after the entry into force of the law and some other provisions that will only come into force at a later stage).

All companies and internal services engaged in private investigations, as well as persons working there, can continue to carry out their activities if they have submitted an application for a permit within six months of the law’s entry into force and this until a decision is made regarding their application.

Actions to be taken

The law may be brand new, but it is nevertheless of great relevance to consider the obligations it introduces and to prepare one’s business to comply with these changes.

In comparison with the law of 19 July 1991, the scope has been significantly broadened. This means that more companies will have to adhere to its obligations. In addition, the law introduces several obligations for both the task holder and the principal from which it is forbidden to deviate contractually. In other words, the law brings important changes not only for companies and internal services that carry out private investigation activities, but also for principals who contract private investigators.