August 27, 2010
This guestblog is written by our colleague Hannes Cannie*
The Arnhem criminal court (the Netherlands) has overruled the judgment of the criminal tribunal of Utrecht (22 April 2010) in the (in)famous Dutch Holocaust cartoon case, in which the Dutch branch of the Arab European League (hereafter, AEL) faces prosecution for having published on various websites a cartoon trivializing the Holocaust. The cartoon showed two Jewish men studying a pile of corpses under a sign with the wrongly spelled ‘Auswitch’ on it. One man says: ‘I don’t think they are Jews’, while the other replies: ‘We have to get to the 6.000.000 somehow’. Although in first instance AEL was acquitted for public insult of the Jewish community (see on this blog, Dutch Holocaust cartoon case: a valuable lesson for the Strasbourg Court?, 5 May 2010), the criminal court in its judgment of 19 August 2010 judges a criminal conviction to be necessary in a democratic society, eventually condemning AEL to a fine of EUR 1.000. The court follows a ‘three step model’ when assessing whether or not public insult in the sense of Article 137c of the Dutch Criminal Act took place. I have some remarks concerning the way the court applies this model: one addresses the court’s ‘validation’ of relevant contextual elements, the two others its appreciation of the cartoon’s needlessly injurious nature.
There is no discussion about the insulting nature of the cartoon (step one). The first judge had already emphasised that the cartoon is disgusting and particularly harmful, and therefore insulting in itself, as it suggests that the Jews have invented the Holocaust (for their own gains). The criminal court in turn points out that there is no disagreement whatsoever at this point. As to the second step, the possible occurrence of contextual circumstances that could deprive the cartoon of its insulting nature, the previous judge considered that AEL had made clear from the beginning, by way of press releases and an accompanying disclaimer, that it takes distance from the content of the cartoon and that it only intended to expose a ‘double morality’ in the media and the public debate since the publication of the Danish Mohammed cartoons (see again my blog post of 5 May 2010). He even found this circumstance weighty enough to judge that qualifying the cartoon as ‘insulting’ in the sense of Article 137c was not necessary in a democratic society. The court in contrast only recognises this (contextual) intent element where the publication’s primary aim is presumed to have become sufficiently known to the public (i.e. internet users), explicitly stating that the defendant’s subjective intent is itself not decisive. According to the court, only the publications that are directly accompanied by a disclaimer (the text of which it explicitly considers to be very apt for eliminating any doubt about the publication’s aim) could be deprived of their insulting nature because of the (clarified) context. In contrast, publications accompanied by a hidden disclaimer (behind a link ‘Read more’), or not accompanied at all, do in the court’s view not sufficiently familiarize internet users with the defendant’s aim, even if that aim had also been communicated through other media. In this respect, the court argues that it is not certain at all that press releases, just like other communications in media other than the internet, would reach the relevant ‘target group’ of internet users. I find the court’s reasoning rather vague, unsupported, and needlessly patronizing the internet community, as were it a bunch of hermits with ear flaps and blinkers before the eyes. It is true that AEL’s intention is not the only element to be taken into account when deciding this case. Also the impact of an expression for instance (which admittedly can be decreased by effective familiarity of the public with the publication’s aim), should be considered. Yet, it is not doubted, not even by the court (see above), that AEL did, one, not intend to insult, second, intended to communicate its primary aim, and third, also took steps thereto, by way of press releases and an accompanying disclaimer (even when not attached to all publications). In my opinion, the court should not devaluate the importance of these elements by creating a distinction between expressions that are howbeit the same, on the grounds of a rather ‘obscure’ criterion of (presumed) established familiarity of internet users with the publication’s aim.
Whatever this thought may be worth, at this stage in the criminal court’s reasoning, only publications directly accompanied by a disclaimer could be deprived of their insulting nature via the existence of ‘purifying’ contextual elements. Time to reach the third step, in which the court appreciates whether or not the cartoon still is needlessly injurious, in which case its insulting nature revives. The court is quite concise in this respect: in referring to the Strasbourg Court’s approach in cases related to some form of Holocaust denial/trivialization (which is weighty application of Article 17 ECHR, the abuse clause, excluding such expressions from any free speech protection, without further serious contextual examination), the court emphasises that the cartoon is without doubt exceptionally offensive to the victims and their relatives, because it suggests that the victims have exaggerated the Holocaust. Furthermore, the court argues that publication of the cartoon is more injurious than is necessary with view on AEL’s aim, which consists of exposing a ‘double morality’ in media and public debate, a goal that could have been reached in various other ways. As a consequence, the cartoon is judged to be needlessly injurious, and a criminal conviction to a fine of EUR 1.000 considered necessary in a democratic society. Two remarks on my behalf are left: first, the court’s clear use of the subsidiarity criterion in judging the admissibility of the published cartoon is in my opinion unusual and even inappropriate. This criterion is typically used by the Strasbourg Court when judging precisely the necessity of an interference with the right to freedom of expression. And even the Court has emphasised on multiple occasions (although presumably not with regard to possible Holocaust denial/trivialization) that cartoons and other satirical forms of expression are inherently provocative and agitating. Of course, things could be communicated in a ‘softer’, less agitating way, but it is precisely the essence of a cartoon not to go that way. Second and more fundamentally, the court’s application of the third step did not receive (or better, require) additional examination, for it is firmly based on the cartoon’s content. The court makes clear that the suggestion aroused by the cartoon, that the victims have exaggerated the Holocaust, is in any way needlessly injurious, and hence taboo (in line of the Strasbourg Court’s view). The court knew the cartoon’s content straight away and was probably already of this opinion from the beginning (illustrated f.e. by its considerations in the admissibility stage, in which it already referred to the Strasbourg Court’s firm view that expressions denying/trivializing the Holocaust are contrary to the ECHR’s underlying values). What is the point then carrying out the contextual examination that proceeded (yet seemingly not influenced) this final conclusion?
Without addressing the final outcome, what is my appreciation of the criminal court’s approach in this case? I have the impression that the contextual examination was carried out rather ‘formally’, without a reasonable chance of effectively influencing the court’s view that expressions related to some form of Holocaust denial/trivialization are in any way inadmissible in a democratic society. In that way, the court’s approach essentially resembles very much the categorical approach of the Strasbourg Court, excluding such expressions from any protection (see above). In any event, the Arnhem criminal court cannot be blamed not to follow the example provided by the Strasbourg Court itself. More than ever, I hope this case eventually reaches the Strasbourg level, so that the Court can finally give its guiding legal opinion about expressions related to Holocaust denial/trivialization that are packed in a cartoon or in any other ironical/satirical form of expression.
*The author is research and teaching assistant in the field of media law at the Department of Communication Studies at Ghent University. He is a member of the Center for Journalism Studies and the Human Rights Centre (Ghent University) and a contributor to the IRIS network (legal observations of the European Audiovisual Observatory). As a PhD student his research focuses on (abuse of) the right to freedom of expression.