Freedom of Artistic Expression, but at What Cost?
Where does the ECtHR draw the line between satire and offensive speech?
Written by Alix de Bergeyck
Following the September 2020 trial of the perpetrators of the terrorist attack on the Charlie Hebdo headquarters, the French satirical magazine decided to republish the derogatory cartoons of the prophet Muhammad. It was the printing of those cartoons that provoked such high degree of violence in 2015, as those were considered an affront to Muslim religious sensibilities. On the other side of the spectrum, publishers asserted their right to free speech and to engage in humour. Such dual discourse has been gradually emerging over the years, when publications meant to be artistic or humorous engage with sensitive topics of public interest, which inevitably offend certain groups of people.
Within that context, new questions and challenges have arisen before the European Court of Human Rights (“ECtHR”), more precisely concerning the usage of art in a satirical way to criticise established norms, dogmas, and beliefs within society. The ECtHR has been faced multiple times with the complex task of drawing a line between artistic expression and offensive speech. The complexity is further reinforced when it comes to the satirical genre, due to its high degree of elusiveness and the conflicting interpretations the same illustration might give rise to.
The main question thus becomes: what should prevail, and at what cost? In today’s increased digitalised, borderless and globalised world, it is inevitable that people are going to be offended by certain types of expressions that are sometimes deliberately meant to stir a public debate. But, how is it dealt with by the ECtHR? Moreover, should we or should we not agree with the approach of the Strasbourg court?
Satire: a definition
According to the ECtHR, the inherent features of satire are exaggeration and a distortion of reality, so that it naturally aims to provoke and agitate (Vereinigung Bildender Künstler, para 33). From a philosophical point of view, the main characteristic of satire is that it combines criticism with ironic humour (Rose, 2011, 3). However, the use of humour and laughter is not an essential component of satire: some satirical expressions are not meant to be funny at all, but not all humour is meant to be satirical either. Nonetheless, its aim is to denounce the flaws and shortcomings of an individual or a society. Its major function is thus not to offend someone or something as such, but to criticize those pressing societal issues, which the author considers to be a threat to said society.
Hence, the satirical genre is a type of ridicule and has a moral purpose, i.e. challenging established ideas within society and promoting change. This can explain why satirical expressions are sometimes seen as being detrimental to a democratic society. Even if, theoretically, the authors harbour “good” intentions, they still question established norms and dogmas, and their work can be seen as a direct attack against a certain culture or religion.
A famous illustration is the known Jyllands-Posten controversy (also known as the Muhammad cartoons crisis) that took place in 2005. The Danish newspaper published 12 editorial cartoons, most of which depicted the prophet Muhammad, a principal figure in the Islam religion. The publication triggered intense debates on the limits of freedom of expression by reason of the fact that the cartoons were considered highly blasphemous by most Islamic traditions. The newspaper explained that the cartoons were an attempt to contribute to a debate on the criticism of Islam and self-censorship. More recently, in January 2020, the same newspaper published a satirical cartoon of a Chinese flag with the five gold stars replaced by the deadly coronavirus, which spread rapidly through social media. The cartoon was considered insensitive, highly offensive, and was criticised for inciting racism and hatred towards the Chinese community.
From what has been described above, the main challenge becomes the following: how can we identify those satirical expressions that are used for a purpose they were not intended to have, namely as an instrument to attack groups or individuals personally? The challenge in drawing a line between both is that there is no general consensus about what is considered to be “right” and “wrong” or “commonly understood norms”, which means satire will not be perceived the same way in different societies (Self, 2015). This is further reinforced by the absence of borders, created by an increasing digitalised and globalized informational space. As Will Self rightly writes down: “The problem for satire is thus that while we live in a globalized world so far as media is concerned, we don’t when it comes to morality”. In other words, his initial test of “comforting the afflicted and afflicting the comfortable” to draw a distinction between satire and offensive speech fails because what is considered “morally right” to people is not universal.
With such difficulty in mind, how does the ECtHR deal with such ambiguity in its case law?
2. A Three-part Assessment by the ECtHR
Article 10 ECHR states that everyone has the right to freedom of expression. However, and as the article expressively mentions, the exercise of that freedom comes with limitations: “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.”
For those unfamiliar with the way the ECtHR approaches restrictions on fundamental rights, the ECtHR has developed a three-part test based on the wording of Article 10 §2 ECHR so as to determine whether an interference is necessary in a democratic society (Rosenberg, 2012, 209):
1. The restriction on the fundamental right must be lawful, which means it must be accessible and foreseeable (Sunday Times, para 49).
2. The restriction must pursue a legitimate aim, which is mentioned in Article 10 §2 ECHR (Mendel, 39).
3. Lastly, the restriction must be ‘necessary in a democratic society’. In order to assess whether a measure is necessary, the interference has to answer to ‘a pressing social need’; it has to be proportionate to the legitimate aim pursued; and the reasons given by the national authorities to justify the restriction must be ‘relevant and sufficient’ (Bladet Tromso, para 58).
The first two parts of the test hardly give any rise to discussions in the Court’s case law. The crucial step of the test usually lies in the assessment of the ‘necessity’ of the restrictive measure, seen that the precise grounds to legitimise offensive speech are quite unclear and inconsistent.
When it comes to expressions offending religions (or religious sensitivities), the Court refers to forms of expression that are ‘gratuitously offensive’ (Otto-Preminger-Institut, para 49; Sekmadienis LTD, para 77). When it comes to other types of speech, such as racial hate speech, there does not seem to be a clear general approach to those cases within the scope of Article 10 ECHR (Kuhn, 2019, 126).
It is interesting to note that the Court seems to refer to highly subjective values in order to determine whether a restriction can be justified on the basis of Article 10 §2 ECHR. The using of the words ‘(gratuitously) offensive’ and ‘inciting to hatred and violence’ is even more problematic seen that the Court’s case law does not clarify in a specific manner in which circumstances an expression might reach such a threshold. This is also considered controversial by legal scholars, for which the use of ‘offense’ is ‘highly problematic from a juridical standpoint, as it refers to the subjective emotional impact of a given text rather than to the objective damage created by said text’ (Godioli, 2020, 20). As has been perfectly formulated by Aoiffe O’Reilly, the ECtHR should be ‘mindful of the difficulty in conceptualising objectively offensive expression, and the potential for the imposition of uncertain and unforeseeable standards on individuals’ (O’Reilly, 2016, 240). Based on the existing case law, it is sometimes hard to tell why the Court decided in one case that there had been a violation of Article 10 ECHR, whilst in others that there was none. This is particularly aggravated by the regular presence of dissenting opinions (or partly concurring ones) that emphasise the ongoing debate in the Court.
In concreto: satirical art under the ECtHR’s case law
Without getting into an exhaustive analysis of the case law, a few recent cases regarding cartoons, and more broadly visual art, as the subject matter of the dispute highlight the criteria underlying the ECtHR’s reasoning when concluding an impugned measure is necessary in a democratic society.
The only criterion that seems to engage with the satirical content of publications is the presence of satirical intention. It seems to have an important influence on the Court’s reasoning, but whether such an intent exists is subject to controversy both at the national and European level. Such disagreement is often further reinforced by the presence of dissenting opinions. In Vereinigung Bildender, which concerned an exhibition including a satirical painting, both the national courts, the ECtHR and the dissenting judge expressed different positions as to the supposed ‘satirical’ character of the painting. The same point of controversy appeared in other known cases such as the Nikowitz case, where a journalist had published his satirical piece of work about a well-known athlete in a weekly periodical, or Leroy, which concerned a cartoon depicting the 9/11 terrorist attack in New York.
Quite surprisingly, the Court does not further engage with the specifics of satirical devices in its case law nor does it emphasise their potential effect on the meaning of certain types of expression. Moreover, the Court does not seem to analyse how satirical expressions could influence its established factors, such as the specific context of a publication (Féret, Leroy), whether a publication concerns a debate on a matter of public interest (Féret, Vereinigung Bildender, Sekmadienis Ltd) or the potential (harmful consequences) of a publication (Mariya Alekhina), which are generally applied to all types of expressions. In my opinion, this increases the risk of unnecessary censorship. This is a logical consequence: in failing to take the influence of satirical devices into account, one might lose sight of the author’s initial intention, which is usually not incitement to hatred, but participation to a current debate on matters of public interest.
How could the ECtHR refine its approach when it comes to assessing restrictions on the right to freedom of satirical expressions? Firstly, the notion of ‘offense’ is contextual and subjective, and hence, the reason why implementing it into speech laws would be highly challenging, and done with much error. A more objective notion, such as the one of ‘harm’, might thus be more effective, purposeful and objective. Moreover, and as has been emphasised in the previous paragraph, there is an absence of solid legal grounds when the ECtHR deals with ambiguous cartoons involving conflicting interpretations. The Court merely refers to its established factors without taking the potential effect satirical expressions may have on interpretations into account. A very recent study has engaged with that precise question. It explains how forensic humour studies could set the basis for a consistent treatment, among others, on the question of whether the text clearly signals a satirical intent (Godioli, 2020, 22-29). This is a step in the right direction as the text engages with the inherent features of satirical devices (which the ECtHR has failed to do until now).
The ECtHR has emphasised more than once the fundamental importance of the right to freedom of expression in our democratic society, which needs the exchange of different opinions and ideas, even those who shock, disturb or offend. However, the main reason for restricting artistic expressions as protected by Article 10 ECHR is when those expressions are deemed offensive towards a group or an individual. Such subjective vocabulary leads to unpredictability and inconsistence between the courts’ decisions, both at national and European level.
When it comes to satirical expressions, the Court has had little regard to their initial moral purpose, namely challenging established ideas within society and promoting change, or the purported public of the oeuvre, namely a ‘captive’ or a ‘voluntary’ one (Haarscher, 2019). The only criterion underlying the ECtHR’s reasoning which actually relates to satire is analysing the satirical intention, which is in itself the subject of intense debate between the courts. In other words, the ECtHR is superficial in handling satirical expressions. It has little regard to the very nature or the inherent characteristics of such works, which are by their very nature inherently offensive. Moreover, the ECtHR does not adapt the criteria underlying its reasoning to those types of expressions nor does it try to assess how such expressions could influence the assessment of them. This leads to uncertainty and unpredictability as to when the ECtHR considers such expressions being offensive.
As a result, continuous research on this question is of fundamental importance. In our globalised and pluralist society, ideas and opinions are bound to create debates and contradictions. There is a need to engage in the understanding of those genres and recognize their potential for questioning the representations of society and addressing its contemporary challenges.
ECtHR case law:
Mariya Alekhina and Others v Russia Application No. 38004/12 (ECtHR, 3 December 2018).
Sekmadienis LTD. v Lithuania Application No. 69317/14 (ECtHR, 30 April 2018).
Féret v Belgium App no 15615/07 (ECtHR, 10 December 2009).
Leroy v France App no 36109/03 (ECtHR, 6 April 2009).
Nikowitz and Verlagsgruppe News GMBH v Austria App no 5266/03 (ECtHR, 22 May 2007).
Vereinigung Bildender Künstler v Austria App no 68354/01 (ECtHR, 25 April 2007).
Bladet Tromso and Stensaas v the United Kingdom Application No. 21980/93 (ECtHR, 20 May 1999).
Otto-Preminger-Institut v Austria, Application No. 13470/87 (ECtHR, 20 September 1994).
Sunday Times (no. 1) v the United Kingdom Application No. 6538/74 (ECtHR, 26 April 1979).
Mendel, T, Freedom of Expression: A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human rights (Council of Europe Centre for Law and Democracy).
Rose, M, Pictorial Irony, Parody, and Pastiche: Comic Interpictoriality in the arts of the 19th and 20th centuries (Aisthesis Verlag, 2011).
Godioli, A, ‘Cartoon Controversies at the European Court of Human Rights: Towards Forensic Humor Studies’ (2020) 22 Open Library of Humanities 1.
Haarscher, G., ‘Le blasphémateur sous les fourches caudines des juges de Strasbourg (obs. sous Cour eur. dr. h. arrêt E.S. c. Autriche, 25 octobre 2018) (2018) 228 Revue Trimestrielle des droits de l’homme 505
Kuhn, P, ‘Reforming the Approach to Racial and Religious Hate Speech Under Article 10 of the European Convention on Human Rights’ (2019) 19 Human Rights Law Review 119.
O’Reilly, A, ‘In Defence of Offence: Freedom of Expression, Offensive Speech, and the Approach of the European Court of Human Rights’ (2016) 19 Trinity College Law Review 234.
Rosenberg, M, ‘Drawing outside the lines: the European Court of Human Rights’ interpretive limitation of the freedom of artistic expression and the role of religion’ (2012) 19 Southwestern Journal of International Law 207.
Self, W, ‘A Point of View: What’s the point of satire?’ (13 February 2015) < https://www.bbc.com/news/magazine-31442441> accessed 16 August 2020.
‘What Is the Purpose of Satire?’ (13 August 2016) <https://thegentlemancaller100.wordpress.com/2016/08/13/what-is-the-purpose-of-satire/> accessed 14 August 2020.