August 17, 2020
By Dr Alberto Godioli*
Due to its inherent link with elusiveness and ambiguity, humour makes it particularly difficult to draw a line between lawful and unlawful expression. The task of assessing the harm in a joke is notoriously complicated by strategies such as exaggeration, distortion or irony, which are typical of humorous expression in its various forms (from satire to parody). The legal challenges posed by humour become apparent in several cases lodged with the ECHR either by those responsible for a controversial joke (under Article 10), or by those who felt offended by a humorous remark (under Article 8 or 9). The list of humour-related cases handled by the Strasbourg Court is by now quite extensive and diverse – including, among others, satirical paintings depicting Austrian politicians (Vereinigung Bildender Künstler v. Austria), mocking remarks about a brand of potato chips (Kuliś and Różycki v. Poland), obscene cartoons about colleagues (Aguilera Jimenez and Others v. Spain), homophobic jokes (Sousa Goucha v. Portugal) and facetious references to the lifestyle of public figures (Ernst August von Hannover v. Germany).
In short, humour is a frequent feature in Strasbourg jurisprudence regarding freedom of expression; and this is bound to become an increasingly topical issue, due to the growing impact and circulation of offensive jokes in the digital age. On the other hand, as shown by recent scholarship, the Court’s approach to humour is still relatively inconsistent and unsystematic; this is mostly due to the lack of a shared terminology and clear distinctions between different types of potentially offensive humour. In order to tackle this gap, a closer interdisciplinary dialogue is needed between humour studies and the law. My blog post aims to illustrate this point by commenting on Marina v. Romania, a recent case concerning a satirical radio show; while the general outcome of the case is convincing, the Court’s handling of humorous speech is problematic in some respects, and points to persistent flaws in the current approach.
The applicant in this case is Mr Viorel Marina, a Romanian resident who at the relevant time was a superintendent in the Prahova police. On 3 June 2011, two presenters running a morning comedy show for Radio Prahova read a letter addressed to the radio station by A.M., the applicant’s sister. The letter contained personal information about the applicant and his ex-wife, and made unpleasant allegations about their private lives; among other things, A.M. claimed that the applicant’s ex-wife had ‘slept with every man’, and that the applicant himself failed to attend his father’s funeral. While reading out the letter (without omitting the applicant’s name), the two presenters added humorous remarks about A.M.’s writing style, and about her bizarre decision to send a letter about private family issues to a radio station. A few indicative excerpts from the transcript are provided below, with the presenters’ names abbreviated as Bu. and Bl. (my translation from the official judgement in French):
Bu.: I will read it because we are a transparent radio station that cares about its listeners, regardless of whether their name is A., Marina, or whatever; we will read anything that is sent to us, inasmuch as it can be read! The language is… hmm semi-licentious… the funniest thing is that even though the letter is addressed to us, it doesn’t have anything to do with us!
Bl.: With us! Yes…
Bu.: Hmmm well, where can we start? ‘To Radio Prahova’! ‘To C.D., lawyer in court’!
Bu.: ‘You have slept with every man’…
Bu.: ‘And now you want the dowry for the bastard’. There you go, this is the first dedication. This is exactly what it says! (…)
Bu.: To… hmmm Mr Marina Viorel… (…) ‘You weren’t able to attend the religious ceremonies following the death of your father, and now you want the money, you beast of the devil’. (…) This is a letter that probably contains… all of Ms A.M.’s inner conflicts… First it deals with C.D., lawyer in court, who has slept with every man and now wants the dowry for the bastard, and then the dedication to Mr Marina Viorel… Who wasn’t able to attend the religious ceremonies following the death of his father and now he wants money, the beast of the devil. (…)
Bl.: Little Ms Marina… (singing) Marina Marina Marina. When did you last speak with a doctor? It’s mostly a question of… the way in which she conceived this little letter, right? And either way, what is the link with Radio Prahova? Because I don’t…
On the same day, the applicant and his ex-wife complained with the head office of the radio station, lamenting a violation of their right to respect for their private life, and claiming that A.M.’s defamatory statements had been read out by the presenters without any verification. In response to that, Radio Prahova issued a public retraction over a period of four days; it also invited the applicant to exercise his right of reply, but he declined.
In August 2011, Mr Marina’s ex-wife sued the radio station over the damage to her image and private life; she won her case, and the radio station was ordered to pay her damages. In August 2012, Mr Marina also sued Radio Prahova, which was enjoined by the court to pay 4,500 euros in damages. However, in May 2014 – following an appeal filed by the radio station – the Prahova County Court dismissed Mr Marina’s suit, based on the following arguments: 1) The applicant’s image had not been damaged, since the letter mainly focused on his ex-wife; 2) The applicant was a public figure, and therefore had to tolerate a higher degree of encroachment on his private life; 3) The public reading of the letter was meant by the presenters as a satirical pamphlet ‘aiming to stigmatize some negative aspects of social reality’, namely the fact that someone could express their resentment towards their relatives by writing a letter to a radio station. As a consequence, the radio show had touched upon a matter of general interest, which should therefore be protected under the right to freedom of expression; 4) Mr Marina had declined the station’s invitation to exercise his right of reply.
In February 2015, the Ploieşti Court of First Instance ordered Mr Marina to return the sum previously paid to him by Radio Prahova. Meanwhile, in October 2014, Mr Marina had lodged his application with the ECHR under Article 8 (right to respect for private and family life). He also relied on Article 6 § 1 (right to an independent and impartial tribunal), since two of the judges sitting on the Prahova County Court had also sat in the case previously brought by his ex-wife against Radio Prahova.
With regard to Mr Marina’s complaint under Article 6 § 1, the ECHR found that the applicant’s case was of a different nature to the one previously brought by his ex-wife; moreover, Mr Marina had not requested the removal of the two judges from the County Court at any point during the proceedings. Lastly, there was no evidence that the two judges involved with C.D.’s case could possibly entertain any kind of personal bias. The Court thereby concluded that the applicant’s claim was manifestly ill-founded (Article 35 §§ 3 (a) and 4 of the Convention) and rejected it.
As for the applicant’s complaint under Article 8, the Court first listed the criteria defined in previous case-law dealing with conflicts between Article 8 on the one hand, and the right to freedom of expression on the other. When drawing a line between lawful expression and unlawful encroachment on private life, the following aspects are particularly relevant: 1) Whether the impugned expression contributes to a debate over an issue of public interest; 2) The degree of notoriety of the person affected; 3) The subject of the impugned report or statement; 4) The prior conduct of the person concerned; 5) The content, form and consequences of the publication; 6) The way in which the information was obtained and its veracity (cf. Couderc et Hachette Filipacchi Associés v. France, § 93).
The ECHR paid particular attention to the first aspect, deeming that the County Court was particularly hasty in classifying A.M.’s letter as a matter of general interest. According to Strasbourg’s Court, ‘the fact that the applicant’s sister decided to divulge family issues through the radio does not transform her behaviour into a matter of “general interest”’ (§ 73). Interestingly, the Court held that the presenters’ position in this respect was aggravated by their decision not to omit the ‘insulting qualifiers levelled against the applicant, such as “beast of the devil”’, since these words clearly did not contribute in any way to broader societal debates (§ 74). After rejecting the County Court’s assumption that the letter touched upon issues of public interest, the Court went on to examine the second criterion, namely the applicant’s standing as a public figure. In this respect too, the ECHR disagreed with the Romanian court, and stated that the latter should have provided more compelling evidence that Mr Marina’s function effectively called for a higher degree of tolerance towards possible intrusions into his private life; based on the available documentation, the Court was not persuaded that the applicant actually was a renowned figure on a national or a local level.
After quickly touching upon the applicant’s prior conduct, and highlighting that nothing in Mr Marina’s behaviour suggested a particular inclination to divulge aspects of his private life, the Court proceeded to consider the following criterion, i.e. the content, form and consequences of the publication. To this end, the ECHR singled out three features that had allegedly been overlooked by the County Court. Firstly, the presenters referred to the applicant and his ex-wife by name without their consent, thereby showing no regard for their privacy. Secondly, by issuing a public apology, the radio station implicitly acknowledged that the reading of the letter could be (and in fact was) interpreted by the audience not as a ‘satirical pamphlet’ against A.M., but rather as a direct attack against the applicant and his ex-wife. Thirdly, according to the ECHR, the latter interpretation had been made more likely by the fact that the presenters chose not to omit the ‘insulting qualifier “beast of the devil”’, which in the Court’s view did not contribute in any way to the discussion and could easily have been left out. At the end of the analysis, the Court also remarked that the presenters had read out the letter without verifying the veracity of the content, thus failing to meet the parameters set by the last criterion (‘the way in which the information was obtained and its veracity’).
In light of the arguments outlined above, the ECHR found a violation of Article 8 of the Convention on the part of the Prahova County Court; it therefore ruled that the defendant State was to pay Mr Marina 2000 EUR in respect of non-pecuniary damage, and 100 EUR in respect of costs and expenses.
The overall outcome of the ruling should be welcomed, as the Court struck a reasonable balance between the right to freedom of expression (Article 10) and the right to respect for private and family life (Article 8). Nevertheless, some aspects of the Court’s reasoning seem problematic, especially with regard to the handling of humorous or satirical material. First of all, the idea that the content of the letter as such does not constitute a matter of general interest is not entirely convincing. A clearer distinction should have been made between two separate levels – namely the topic of the letter on the one hand, and the presenters’ choice not to omit the applicant’s name on the other. With regard to the latter, the presenters’ decision is indeed unjustifiable, since it could not contribute in any way to a public debate (also considering that Mr Marina could not reasonably be considered as a public figure). As to the former level, however, the topic of the letter – and the presenters’ intent of satirizing the conduct of the applicant’s sister – cannot be sweepingly dismissed as devoid of any public relevance.
The categorical tone adopted by the Court (‘the fact that the applicant’s sister decided to divulge family issues through the radio does not transform her behaviour into a matter of “general interest”’) conflates those two levels, thereby exemplifying some of the pitfalls inherent to the rigid opposition between ‘matters of general interest’ and ‘gratuitous offence’ famously established in Otto-Preminger-Institut v. Austria. As pointed out in recent studies (Kuhn 2019, Lewis 2017), this dichotomy presents at least two major flaws: firstly, it clashes with the Millian notion that we cannot know in advance what speech will contribute to human progress; secondly, it tends to penalize speech that does not explicitly focus on political, historical or scientific issues, but still contributes to the exchange of ideas that is necessary in a democratic society (as is the case, for instance, with observational comedy about ordinary situations). Looked at from this perspective, the Court’s unconditional phrasing might set a tricky precedent when it comes to assessing whether certain forms of comedy and satire can contribute to debates over matters of general interest.
The second problem lies in the ECHR’s emphasis on the presenters’ choice to read out the ‘insulting qualifiers’ uttered by the applicant’s sister (‘beast of the devil’ in particular), which seems to have played a key role in the Strasbourg judgement. In the Court’s view, the qualifiers served as an aggravating factor for two reasons. To begin with, they were interpreted as a gratuitous offence, which could have been avoided as it could not possibly contribute to any public debate (§ 74). Moreover, the Court held that the qualifiers made it more likely for the audience to misunderstand the presenters’ intentions (§ 83); more precisely, the insults allegedly encouraged the audience to interpret the reading of the letter as a direct attack against the applicant and his ex-wife, as opposed to a ‘satirical pamphlet’ aimed at ridiculing the applicant’s sister. The latter argument is particularly striking, in my opinion; far from facilitating misinterpretation, the presenters’ use of ‘beast of the devil’ as a humorous refrain actually plays a crucial role in clarifying that the satirical target is not the applicant, but his sister.
As I discussed more extensively elsewhere (Godioli 2020), the forensic analysis of humorous expression could benefit from the distinction proposed by Paul Simpson between three phases in the processing of humour, especially when irony is involved: the prime phase (taking the expression at face value, without decoding the irony), the dialectic phase (detecting the irony by spotting some kind of incongruity), and lastly the uptake phase (reconstructing the ultimate meaning of the ironic expression). In our case, the presenters’ dwelling on ‘beast of the devil’ is the most important marker of the presenters’ ironic intention – by exposing the ridiculous incongruity in the writing style of the applicant’s sister (dialectic phase), they clarify that their reading is not meant as an attack against Mr Marina or his ex-wife (prime phase), but rather as a satire of the sister’s conduct.
On a more general note, a basic distinction can be made between two types of potentially offensive humour. On the one hand, the most obvious type could be designed as ‘first-degree offensive humour’, where humour is simply used as a vehicle or a cloak for the offense uttered in the impugned expression; this description applies to most of the cases listed above in the Introduction. The second fundamental type, instead, could be labelled as ‘humour against the offender’: in this form of humorous expression, the ultimate target of the joke are those who utter an offense that is ironically mentioned in the impugned expression. This is clearly the case, for instance, with Nikowitz and Verlagsgruppe News GmbH v. Austria, where the ultimate target of the humorous expression is not Hermann Maier (the athlete who is the literal target of the offensive remarks), but his colleague Stefan Eberharter (who uttered said remarks in the fictional context of the impugned article). From this standpoint, Marina is substantially comparable to Nikowitz: the offensive qualifiers uttered in the radio show (‘beast of the devil’) are clearly being mentioned in an ironic way by the presenters, and only an extremely unfocused listener could have mistaken them as a direct attack against the applicant.
The final outcome of Marina strikes a welcome balance between Article 8 and Article 10. The Court’s reasoning is particularly compelling when it points out that the presenters’ decision not to omit the applicant’s name was unjustified, and thereby represents a clear violation of Mr Marina’s right to respect for his private and family life. On the other hand, the Court’s application of the ‘gratuitous offense’ test is problematic, as such an approach could penalize various forms of non-openly political comedy. Moreover, the Court failed to acknowledge the clearly ironical use of insulting qualifiers (‘beast of the devil’) on the part of the presenters – which, far from being a gratuitous or confusing feature of the impugned expression, actually played an essential role in clarifying the presenters’ intentions. Looked at from this perspective, Marina exemplifies how the ECHR could benefit from a shared terminology and a more consistent approach to the possible functions of humour in potentially offensive speech.
* Alberto Godioli is senior lecturer in European Culture and Literature at the University of Groningen, and programme director of the Netherlands Research School for Literary Studies (OSL). His research mostly focuses on humour and satire across media (from literature to cartoons), with particular regard to humour controversies and freedom of expression. He is principal investigator of the NETIAS project Cartoons in Court: Towards a Forensic Analysis of Visual Humor (2020-2023). (University of Groningen, email@example.com)