October 12, 2021
Ignatius Yordan Nugraha
‘September 11th Two Thousand-Fun!’ This phrase was uttered by Peter Griffin in a Family Guy episode, Back to the Woods, while pretending to be James Woods to smear his name, in a clear reference to the 9/11 attacks against the United States of America in 2001. This sort of joke may be considered distasteful by some. What happens if one decides to print such a pun on a shirt to be worn in public, together with the pictures of Peter Griffin and the Twin Towers being destroyed, with the mere intention of making a joke? Can this person be prosecuted for making an apology for terrorism? The case of ZB v. France raises the question of how far the right to humour can go. The judgment ended up being uninspiring and even flawed due to its excessive deference to national authorities.
The case concerns a boy who wore a T-shirt with a text je suis une bombe (literally ‘I am a bomb’) on the front and Jihad, né le 11 septembre (Jihad, born on 11 September) on the back. As it happens, the boy’s name is actually Jihad and he was born on 11 September 2009. The shirt was gifted to him for his birthday in 2012 by the applicant, who is the uncle of the boy. The uncle specifically asked his sister that the boy should wear the shirt in his preschool. The sister agreed, and they claimed that it was only intended as a joke.
On 25 September 2012, the director of the boy’s preschool and another adult noticed the shirt when they were changing the boy in the bathroom. The director subsequently informed the mayor of the commune where they reside. The mayor decided to report this incident to the first instance prosecutor (Procureur de la République), who then proceeded to charge the applicant and the mother of the boy with ‘apology for crimes of wilful attacks on life’ as enshrined under Article 23 and 24 of Law of 29 July 1881 on the Freedom of the Press.
Initially, the applicant and his sister were acquitted by the first instance court in Avignon, as the shirt was only worn one time for a short period in a closed space. However, the Appeal Court of Nîmes quashed this judgment and imposed a two months suspended sentence with a €4,000 fine to the applicant, while the mother of the boy received a one month suspended sentence with €2,000 fine. Their appeal to the Court of Cassation was also rejected, and subsequently the case was brought to the European Court of Human Rights (ECtHR).
The parties to the case concurred that there was an interference against the freedom of expression of the applicant and that the interference was prescribed by law. It was also agreed that the interference pursued a legitimate aim, namely prevention of disorder or crime as enshrined under Article 10(2) ECHR. Thus, the question was whether the interference was ‘necessary in a democratic society’, which means that the interference must be justified by a ‘pressing social need’, based on ‘relevant and sufficient reasons’ and proportionate to the aim sought.
A major point of contention in the case was whether the shirt can be considered as an apology for Islamic terrorist attacks.
On the one hand, the applicant asserted that the texts were humoristic. He also clarified that the term bombe does not refer to the explosive weapon, but rather to the expression beau gosse (‘attractive male’). Indeed, Larousse dictionary explains that bombe in a colloquial sense means personne particulièrement séduisante (particularly attractive person). In this light, the texts can be regarded as a mere tongue-in-cheek.
On the other hand, the government believes that the message contained in the shirt sought to present the 9/11 attacks ‘in a favourable and humoristic light’ (para. 40). The government also emphasised that the shirt was worn only several months after the terrorist attacks committed in March 2012 by Mohammed Merah (para. 42). For the government, the texts can really shock the teaching staff (para. 44), as the March 2012 attacks also targeted a Jewish school and claimed the lives of a rabbi and three children.
The ECtHR itself held that humoristic expression is protected by Article 10 ECHR. This protection also covers expressions that are provocative, irrespective of who the author is (para. 56). However, the Court asserted that this right can be subject to limitation, and that ‘the right to humour’ does not absolve anyone from their ‘duties and responsibilities’ as enshrined under Article 10(2) ECHR (para. 57).
After spelling out this general principle, the ECtHR proceeded to note the ruling of the Appeal Court of Nîmes, who established that by presenting the 9/11 attacks in a favourable light, the texts reflect an intention to glorify criminal acts (para. 57). The ECtHR also held that the texts cannot be considered as contributing to a debate of public interest concerning the 9/11 attacks, and that the applicant himself does not even claim that he had such an intention. The Court thus concluded that the margin of appreciation accorded to France in this case is wider (para. 58).
The ECtHR then accepted the argument of the French government that one cannot ignore the context of the texts, namely that the shirt was made and worn only several months after the attacks by Mohammed Merah (para. 60). Given this context, the Court stated that it could not ignore ‘the particular reverberation’ (la résonance particulière) that the texts could cause within the preschool. It even ruled that the applicant’s texts are ‘beyond simple provocation or bad taste’. The Court then recalled that national authorities are better situated than international judges in determining the necessity of an interference against freedom of expression (para. 63), and that they are also better placed to understand specific societal problems in a particular community and their contexts (para. 64).
Subsequently, the ECtHR observed that national courts not only analysed the case in light of the requirements of Article 10(2) ECHR, but also balanced the different interests involved. The Court thus did not see any reason why it should substitute the judgments of national courts (para. 65). It then ruled that the conviction of the applicant is based on relevant and sufficient reasons and answers to a pressing social need (para. 65).
Finally, the ECtHR assessed the proportionality of the measure. Although the Court has long held that criminal conviction constitutes one of the most serious interference against freedom of expression, it found that the €4,000 fine is proportionate. The Court also highlighted the fact that the prison sentence was suspended, and thus for the Court, the interference against the applicant’s right was not disproportionate (para. 67). Therefore, the Court concluded that there had been no violation of Article 10 ECHR (para. 68).
This case can be considered as a continuation (if not replication) of Leroy v. France. Leroy concerns a drawing of the attack against the World Trade Centre with the caption ‘We have all dreamt of it… Hamas [sic] did it!’ (Nous en avions tous rêvé… le Hamas l’a fait!). The applicants in both Leroy and ZB were convicted under the 1881 law. In Leroy, the ECtHR also largely deferred to the assessment of domestic courts (para. 43-45).
The ECtHR’s reasoning in ZB, however, is overly dependent on the assessment of French domestic courts. The ECtHR even expressed its satisfaction with the way French domestic courts applied Article 10 ECHR. It is true that this can be considered as part of a ‘procedural turn’ in the case law of the ECtHR. However, French domestic courts failed to convincingly establish that the shirt was really intended to make an apology for the 9/11 attacks. What they did is connect the term ‘jihad’ (which would sound scary to a non-Muslim ear) with the date 11 September and the polysemic word ‘bomb’ in order to conclude that the applicant wanted to glorify terrorism. This constitutes a non sequitur, as nothing on the shirt demonstrates that the applicant is glorifying or making an apology for the 9/11 attacks. The texts are not laudatory, and casting a terrorist attack in a humorous light is not equal to stating that such an attack is justified or that more attacks against ‘infidels’ should be carried out. At worst, the texts on the shirt are simply a groanworthy pun that can make someone either chuckle or be horrified by its insensitivity.
In this light, it is also pertinent to discuss the term jihad. In the West, jihad is often associated with ‘holy war’. Under Islam, however, jihad means ‘striving to achieve a praiseworthy aim’, and this ‘aim’ can refer to a struggle to do good in the domains of morality and spirituality. For instance, one can speak of an inner jihad (personal struggle) to not lose temper. Indeed, a survey by Gallup found that most Muslims associate the word ‘jihad’ with ‘a commitment to hard work’, ‘achieving one’s goals in life’, ‘struggling to achieve a noble cause’, ‘promoting peace, harmony or cooperation, and assisting others’ and ‘living the principles of Islam’. Jihad is also a common name in the Arab World. This context further demonstrates that the French courts would have to do better in proving the intent to make an apology for terrorism, as naming someone ‘Jihad’ does not automatically mean that one is a supporter of Islamic terrorism.
This overdependence led to a flawed judgment, since the margin of appreciation accorded to France is widened by the belief that the applicant intended to make an apology for (or even glorify) terrorism. As a consequence, the ECtHR uncritically accepted the proportionality of the measure without assessing whether it is the least restrictive possible and whether domestic courts had (correctly) applied the proportionality test. This stands in stark contrast with Mor v. France, in which the Court found that even a symbolic payment of one euro in damages is disproportionate, as it still constitutes a criminal sanction (para. 61).
The ECtHR did not stop there. It even held that the margin of appreciation granted to France is wider, as the applicant’s texts did not contribute to a debate of public interest (para. 58). In the Court’s case law, it has been established that there is little scope for interference when the expression contributes to such a debate (see Perinçek v. Switzerland para. 197). There is, however, a significant difference between, on the one hand, expanding the level of protection to an expression because it contributes to a public debate, and, on the other hand, reducing the scope of protection afforded to an expression just because the person involved did not claim that he was seeking to contribute to a debate of public interest, as in the present case. In this way, the Court effectively punished the applicant for not feigning an intention to make such a contribution. The exact same expression would have been granted more protection had the applicant argued that he was making an anti-racist statement contributing to a public debate that ‘Jihad’ is not always associated with war, but can also refer to a cute innocent little boy. There is ‘little scope’ for dark humour that is only intended to be ‘funny’; it always has to have a social commentary behind it.
This brings us to the potential repercussion of the case: the Court has failed to acknowledge the chilling effect that this ruling could cause to those who want to exercise the right to humour in France. In the recent case of Dickinson v. Turkey, the Court observed that criminal procedure could have a chilling effect on freedom of expression, particularly in light of the fact that the procedure lasted around three years and six months and also given the penalty imposed. In ZB, the penalty is less severe, but it is still a criminal sanction, and it could deter comedians, artists and laymen from making a satire about or relating to a recent terrorist attack. In fact, the Appeal Court of Nîmes made it clear that ‘la mort d’autrui ne saurait être sujet de plaisanterie’ (the death of others cannot be subject to jokes, para. 11).
In ZB, the ECtHR was presented with an opportunity to clarify how far the right to humour can go. In the end, the main takeaway is that the right to humour comes with ‘duties and responsibilities’. In France, these ‘duties and responsibilities’ would include not casting a terrorist attack in a humorous light, as this could be conflated with an apology for (or even glorification of) terrorism. I would like to end this commentary by noting how ironic it is that a country that prides itself as a bastion for freedom of expression after the Charlie Hebdo attack in 2015 ended up being overreactive to a dark humour, even though Charlie Hebdo itself once made a caricature that casted the 2016 Brussels bombings and the Rwandan genocide in a humoristic light. As the eminent Yuval Noah Harari observed in his book, Homo Deus:
With the potential chilling effect that ZB could cause, the ‘china shop’ would be the space to exercise the right to humour itself.