This guest post was written by Jogchum Vrielink, postdoctoral researcher at the University of Leuven, Belgium.
In Belgium, a Congolese student and a minority organisation sought to obtain a ban on the comic book ‘Tintin in the Congo’. A Brussels court rejected their claims. Despite this outcome, the reasoning of the court jeopardises free speech. As regards the applicants: offensive as the comic may be, their recourse to the law is both misdirected and counterproductive.
Tintin, the brainchild of the Hergé († 1983), is experiencing new and exciting adventures these days. Not just in the cinema, but in Belgian courts as well.
Bienvenu Mbuto Mondondo, a Congolese national studying in Brussels, filed suit to obtain an injunction against the continued publication, distribution and sale of the comic book Tintin in the Congo (Tintin au Congo), as well as seeking to have the book withdrawn from bookshops and libraries in Belgium. Mondondo did so on the basis of alleged violations of the Belgian anti-racism legislation. In subsidiary order he demanded that a disclaimer be printed on the comic’s cover, warning of its offensive nature, along with the inclusion of an introduction of a similar nature. Mondondo was supported in his claims by the minority organization Conseil représentatif des associations noires (Cran).
On 10 February 2012, the Brussels Court of First Instance rejected all the applicants’ claims. The Court also rejected the counterclaims by Casterman, the series’ publisher, and Moulinsart, the company which was set up to protect and promote the work of Hergé. Both had asked for 15,000 euro as compensation for ‘vexatious proceedings’.
Tintin in the Congo
The comic Tintin in the Congo was first published between 1930 and 1931, a time when Congo was suffering under Belgian colonial rule. The album graphically depicts the Congolese as monkey-like, and portrays them as stupid, childish, and lazy. In later years, when a colour version of the album was published, Hergé made several changes to it, partly because he acknowledged that the work was overly influenced by the colonial ideas of its time. In the new version the stereotypical caricatures of the Congolese were rendered somewhat less extreme, for instance. Several textual changes were made as well, and most references to Congo being a Belgian colony were removed.
The album has regularly been a cause for debate, particularly in the Anglophone world. Due to on-going controversies it was not published in English until 1991. The colour edition did not even appear until 2005. When finally it was published (by Egmont Publishing), it included a cautionary wrapper indicating that it contained “bourgeois, paternalistic stereotypes of the period” that may be offensive to contemporary readers. The edition also encompassed an introduction providing additional historical contextualisation. Nevertheless, in 2007 the (former) Commission for Racial Equality (CRE) asked the bookstores Borders and Waterstones to stop selling the book, in response to a complaint it had received. The CRE stated that the album contained “imagery and words of hideous racial prejudice, where the ‘savage natives’ look like monkeys and talk like imbeciles”:
Whichever way you look at it, the content of this book is blatantly racist. High street shops, and indeed any shops, ought to think very carefully about whether they ought to be selling and displaying it. Yes, it was written a long time ago, but this certainly does not make it acceptable. It beggars belief that in this day and age (…) any shop would think it acceptable to sell and display ‘Tintin In The Congo’. The only place that it might be acceptable for this to be displayed would be in a museum, with a big sign saying ‘old fashioned, racist claptrap’.
The bookstores refused to remove the comic from their shelves entirely, but they did move it from the children’s section to the adult section of graphic novels. Other British retailers sell Tintin in the Congo along with a label that it is unsuitable for readers under the age of 16.
In the US, plans by Little, Brown & Company to publish the colour version were abandoned altogether in 2007, seemingly on account of the controversies in Britain and Belgium. To this day Tintin in the Congo remains the only album in the Tintin-series never to have been published in the US. Furthermore, some libraries have restricted public access to the album. Brooklyn public library, for instance, has kept the comic under lock and key since 2007, due to a request by patrons and library employees, rendering it available only upon request and appointment. Other controversial works, including Hitler’s Mein Kampf, are readily available in the library’s open shelves.
Colonial representation and contemporary harassment
Judged by contemporary standards, Tintin in the Congo is blatantly colonial, highly paternalistic, and offensively stereotypical, to say the least. The question, however, that the Brussels Court had to answer was whether its present-day publication and distribution could be legally prohibited under the anti-racism legislation. The Court rightly rejects this possibility.
The Court first rejects the claim that publishing and distributing the comic amounts to ‘harassment’. Harassment is legally defined as “unwanted conduct connected to a person’s race or ethnic origin with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment”. According to the applicants this definition was satisfied by the publication and sale of a comic book containing ideas and illustrations that are offensive, degrading, and insulting to people on the basis of their origin or skin-colour.
In response, the Court states that neither the album itself nor its dissemination and sale have the purpose of violating anyone’s dignity or to create a humiliating or offensive environment. In light of the legal definition of harassment, the question that remained to be answered – according to the Court – was whether it did not have this effect either. The Court again answered this in the negative, judging that “the continued sale, in our era, of a comic book created in colonial times, suffused with the ideas and attitudes of its time of creation, cannot be regarded as violating the dignity of a person, or group of persons, protected by the Anti-racism Act”. Especially, the Court continues, since the commercialisation of the album is an integral part of the sale of the complete works of Hergé, “without there being placed any special value on the comic book in dispute”.
Although the outcome ultimately is that the sale and distribution of Tintin in the Congo cannot be prohibited, the Court is nonetheless insufficiently critical of the premise of the applicants’ arguments, which are simply based on a mistaken idea of what (legally) constitutes harassment. The applicants believe the prohibition of harassment to entail a general ban on all speech or illustrations that are humiliating or offending to people on the basis of their protected characteristics (in this case their skin-colour or ethnic origin). This broad interpretation disregards both the language and the spirit of the harassment provision.
The prohibition of harassment, derived from (and imposed by) European discrimination law, was designed to counter forms of person-oriented harassing, pestering and stalking behaviour in the workplace and other societal contexts, such as the provision of goods and services. The prohibition’s aim is to remove immediate barriers and obstacles to societal participation for individuals belonging to protected groups. In Belgium, the prohibition of harassment has been extended to cover the entire scope of the antiracism legislation. However, and this is essential, it still requires the violation of the dignity of one or more concrete persons, and not of an abstract group such as ‘the Congolese’ or black people in general. The legal text explicitly refers to ‘a person’: clearly, this language was not intended to cover mediated and impersonal types of ‘group defamation’ by means of the mass-media or comic books. It is limited to (anti-)social situations in which someone is the direct and personal object of unwanted conduct with the ‘purpose or effect’ of affecting one’s dignity. In no way was this the case here.
Even if one adheres to this strict, person-oriented interpretation of discriminatory harassment, the concept already yields significant tensions with free speech principles. However, if one accepts the ‘impersonality’-premise of the applicants – as the Court does – the anti-harassment provision is rendered virtually limitless, amounting to an open-ended prohibition, targeting any and all speech that somehow ‘violates the dignity of a group’. Needless to say, this would result in unprecedented, and patently unconstitutional, restrictions on the freedom of expression.
Tintin and hate speech
Another set of the applicants’ claims was based on the hate speech provisions contained in the Antiracism Act. This concerns firstly the prohibition of ‘incitement to discrimination, hatred or violence on the basis of colour and ethnic origin’ and secondly the ban on the ‘dissemination of ideas based on racial superiority or hatred’. Both provisions are derived from the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD).
However, their seemingly broad drafting notwithstanding, these provisions are interpreted very restrictively by the Belgian Constitutional Court. Regarding ‘incitement’ the Constitutional Court requires active instigation of third parties to undertake certain actions. Apparently finding the term ‘hatred’ too vague and subjective in its generic meaning, it even specified that only incitement to hateful acts can be considered unlawful; thereby excluding incitement to merely negative attitudes or feelings from the realm of the provision. Finally, the Constitutional Court requires the presence of malicious intent for the incitement clause to be applied. In other words, aside from the requirement that, given the content and the context of the words used, the impugned expressions must incite and provoke violence or discrimination, it must also be demonstrated that the latter was the defendant’s conscious and malevolent intention.
Similarly, the prohibition of ‘disseminating racist ideas’ has been construed narrowly by the Constitutional Court. Here too the Court requires special intent. More specifically the dissemination should have as its demonstrable aim to ‘incite to hatred and to advocate and justify discrimination and segregation’ of the targeted group. Regarding content, the speech – in order to be prohibited – must be ‘contemptuous, hateful and malicious’; specifying that it particularly targets expressions of ‘classical’ biological racism.
In the light of this, it was unsurprising that the Brussels Court came to the conclusion that (the publication and dissemination of) Tintin in the Congo did not meet the standards of the hate speech provisions, and that an injunction could therefore not be justified on that basis. The Court concluded that the claims failed due to the ‘evident absence of the required malicious intent’, both on the part of Hergé, and on the part of Casterman and Moulinsart. Having established this, the Court deemed it redundant even to investigate the additional arguments brought forward by the claimants.
This approach is somewhat regrettable. At least, it would have been (even) more convincing – as well as more logical, legally speaking – if the court had first assessed whether the contents of the comic were sufficient to meet the threshold-level required for the offenses, instead of looking exclusively at the required intent. The former is also clearly not the case if one applies the rather strict requirements adopted by the Constitutional Court. Taking this approach would have served to clearly demarcate the space available for free speech, something which the sole reliance on the – inherently subjective – element of intent fails to do. This is all the more important since the fundamental problem with the claims is that they would simply open the floodgates for innumerable additional prohibitions, if they were to be allowed. Tintin in the Congo is undoubtedly offensive to many people, but if its contents are brought under the prohibitions of the Antiracism Act, then an endless list of other works would also wind up in the crosshairs. This is true for most religious books, as well as many of the great literary works, and the writings of virtually all great thinkers of early modernity. Allowing a legal ban on such speech therefore implies the abolition of freedom of expression itself.
All things considered, it is puzzling that the applicants opted to pursue a judicial solution in this case. In doing so, they could only lose. It was clear, from the start, that the comic’s contents – albeit offensive – did not amount to a violation of the anti-racism legislation; let alone that this would be the case for publishing and distributing it.
Mondondo indicated that now at least Tintin in the Congo is the object of debate and discussion, and that he would persevere due to that ‘success’; even claiming a readiness to go to the European Court of Human Rights (ECtHR). Mondondo not only appealed the civil ruling by the Brussels court, but also initiated criminal proceedings against Moulinsart en Casterman. Moreover, in 2009, he extended his case to France as well.
Mondondo’s view however ignores the counterproductive effects that the legal approach has for his cause. Admittedly, the complaint as well as the ruling have received significant media attention. However, the content of the coverage was predominantly of a negative, or even mocking, character. Precisely because Mondondo and the Cran opted for a legal solution, the applicants were routinely portrayed as overly sensitive, ‘politically correct’, and bent on censorship. Even the Centre for Equal Opportunities – the Belgian agency responsible for enforcing the federal discrimination legislation – warned against “over-reaction and hyper political correctness”. In other words, the legal approach has not given rise to the desired critical discussion about the comic itself.
In fact, quite the opposite is the case. Firstly, there have been unintended commercial effects, to say the least. Sales of the album rocketed, following the British discussion about a ban, by as much as 3,800 per cent. The comic temporarily even jumped to the 5th place in the Amazon bestseller list, coming from the 4.343rd place, 4 days earlier. The lawsuit(s) in Belgium had similar effects, causing the French version of the album to temporarily go out of stock. Secondly, and more fundamentally, the lawsuits shut down discussion rather than promoting it, by the aura of legitimacy that the inevitable rejection of the claims and the equally inevitable future acquittal yield. These outcomes wrongly suggest, to the general public, that there is nothing wrong with the ideas on which the work is based, while in fact these do require critical debate and analysis. However, instrumentalising the law and the court system for the purposes of this debate seems both misdirected and counterproductive.
 Postdoctoral researcher / Research Coordinator Discrimination Law (Research Centre on Equality Policies, University of Leuven). Contact: firstname.lastname@example.org.
 Loi du 30 juillet 1981 tendant à réprimer certains actes inspirés par le racisme et la xénophobie [Act of 30 July 1981 aimed at combating particular acts inspired by racism and xenophobia].
 Although the latter was done mostly to broaden the book’s appeal to an international readership, and not so much because Hergé rejected imperial rule or believed that it would come to an end (which, in the case of Congo, did not happen until 1960, whereas the colour edition first appeared in 1946). See M. Farr, Tintin: The Complete Companion, London, John Murray, 2001, 25.
 Later in 2007, the CRE merged into the Equality and Human Rights Commission, along with the Equal Opportunities Commission and the Disability Rights Commission. See: http://www.equalityhumanrights.com.
 Commission for Racial Equality, “CRE Statement on the children’s book ‘Tintin in the Congo’”, Press release, 12 July 2007.
For the request and response, see: http://documents.nytimes.com/how-brooklyn-public-library-has-responded-to-book-challenges#p=13
 M. Meyers, “Free Tin Tin! Brooklyn Public Library made a big mistake when it put racist book in a locked room”, New York Daily News, 22 August 2009 (http://www.nydailynews.com/opinion/free-tin-tin-brooklyn-public-library-made-a-big-mistake-put-racist-book-a-locked-room-article-1.398054); R. Singer, “Racist ‘Tintin in the Congo’ book remains on shelves following a Belgian judge’s ruling”, Blouin Artinfo (International edition), 7 March 2012 (http://www.artinfo.com/news/story/762096/racist-tintin-in-the-congo-book-remains-on-shelves-following-a-belgian-judges-ruling); A.L. Cowan, “A library’s approach to books that offend”, New York Times, 19 August 2009 (http://cityroom.blogs.nytimes.com/2009/08/19/a-librarys-approach-to-books-that-offend/).
 Translation of: “[L]e maintien, à notre époque, de la vente de cette bande dessinée créée au temps du colonialisme, et baignée des idées et atmosphères du temps de sa création, ne peut être considéré comme portant atteinte à la dignité de la personne, ou au group de personnes, protégées par la loi anti-racisme”.
 Paraphrase and partial translation of: “[La] mise en vente s’opère dans le cadre de l’offre à la vente de l’ensemble de l’œuvre d’Hergé, sans mise en valeur particulière de la bande dessinée en litige”.
 Which was inspired, in turn, by the North-American experience.
 See e.g. E. Volokh, “Freedom of Speech and Workplace Harassment”, 39 UCLA L. Rev. 1992, 1791. Accessible at https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=39+UCLA+L.+Rev.+1791&srctype=smi&srcid=3B15&key=7f0acb67307a0d78011a25499fedf8cc.
 The European Court of Human Rights accepts much broader hate speech restrictions. In the case of Féret v. Belgium, for instance, the Court considered it necessary “to prohibit or prevent all types of expression which advocate, incite, promote or justify hate based on intolerance” (Féret v. Belgium, 16 July 2009, para. 64). However, while the ECtHR is accepting of virtually any restriction under the banner of hate speech, it does not require these restrictions from States.
 This is not to say that intent should not an essential precondition for hate speech to be deemed punishable; far from it. However, for reasons of i.a. legal certainty it is preferable to first analyse whether the ‘material’ rather than moral aspects of the provisions have been fulfilled.
 Compare I. Knight, “Let Tintin the racist speak”, The Sunday Times, 15 July 2007.
 V. Sasportas, “‘Tintin au Congo’ menacé d’interdiction”, Le Figaro, 18 September 2009 (http://www.lefigaro.fr/livres/2009/09/01/03005-20090901ARTFIG00444-tintin-au-congo-menace-d-interdiction-.php); R. Singer, “Racist ‘Tintin in the Congo’ book remains on shelves following a Belgian judge’s ruling”, Blouin Artinfo (International edition), 7 March 2012 (http://www.artinfo.com/news/story/762096/racist-tintin-in-the-congo-book-remains-on-shelves-following-a-belgian-judges-ruling).
 V. Sasportas, “‘Tintin au Congo’ menacé d’interdiction”, Le Figaro, 18 September 2009 (http://www.lefigaro.fr/livres/2009/09/01/03005-20090901ARTFIG00444-tintin-au-congo-menace-d-interdiction-.php).
 See B. Malkin, “Race row Tintin is best-seller”, The Daily Telegraph, 14 July 2007 (http://www.telegraph.co.uk/news/uknews/1557419/Race-row-Tintin-is-best-seller.html).
 In September 2007, directly following the initial wave of media attention for the lawsuit(s).
 See e.g. K. Vaclavik, “Damaging goods? Francophone children’s books in a postcolonial world”, International Research in Children’s Literature 2009, nr. 2, 228-242. Accessible at https://qmro.qmul.ac.uk/jspui/bitstream/123456789/2279/4/VACLAVIKDamaging%20Goods%20final%20article.pdf.