Tuesday 20 October 2009

Satire and the Freedom of Expression

This is a picture of a carnival parade in which US president Barack Obama is shown with wings carrying the text of his campaign phrase "Yes we can", to which the figure Europa is clinging with the text "We too". Benevolent humour with a clear reference to a topical political issue. Two cases of comparable satire were decided by the Court recently. In both cases the authorities involved had violated the freedom of expression in punishing various forms of satire.

The first was the case of Kuliś and Różycki v. Poland (Appl.no. 27209/03), decided by the Court on 6 October. This concerned the publication of cartoons in a children's magazine. The cartoons were a parody on an advertising campaign by a potato crisps company, Star Foods. The cartoons depicted a child talking to a famous dog cartoon character for children, Reksio, saying: "Don't worry, I would be a murderer too if I ate this muck!". It was a direct reaction to the company's advertising campaign in which the popular character Reksio was oddly called a murderer (other parts of the campaign referred to sexual behaviour or alcohol or were even racist). The potato crisps producer was not amused by the parody and sued the magazine. The publisher and editor were sentenced by domestic courts to publicly apologize for the cartoons and to pay an amount of money to a charity. The main justification given by the Polish courts was that the cartoons discredited the crisps unjustifiedly. The defence of the applicants was that the cartoons were meant as a satirical comment on the advertising campaign, not on the product as such. The European Court agreed with them, emphasizing that a certain degree of "exaggeration or even provocation" was permissible for the press, especially when it concerned a question of public interest. In this case, the Court held that in para. 38 "that the applicants' aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales."

The other case is directly related to carnival itself. In Alves da Silva v. Portugal (Appl.no. 41665/07), the applicant was prosecuted and convicted for driving around during carnival with a puppet representing the mayor of Mortágua with symbols of corruption on the puppet and for broadcasting a pre-recorded message of satire on the Mayor's suggested illegal acts. The applicants was ordered to pay a fine, damages and costs of over 4,000 euros. Again, the European Court decided in favour of the applicant and held that the expressions were clearly satirical and in the context of carnival could hardly be taken literally. It stressed once more the importance of satire in public debate. One may add that the mayor of this Portuguese town has not at all understood the essence of carnival which very essence is - as any anthropologist could have told him - a reversal of roles, a topsy-turvy festival in which the powerless criticise the powerful.

The judgments can be found on the HUDOC search engine and the press releases can be found here. The second judgment is only available in French.

Both cases could be laughed off as bizarre instances of the kind of situations that reach Strasbourg. But equally, they point to a worrying development in various European countries in which commercial or political interests are attacking even the most innocuous expressions. In that respect, it is good that the European Court is taking jokes seriously.