September 14, 2022
By Sofia Balzaretti
In the case Patrício Monteiro Telo de Abreu v. Portugal, the Strasbourg Court held that the judicial domestic authorities had not taken sufficient account of the context in which Patricio Monteiro Telo de Abreu, the applicant, had published satire cartoons depicting sexist stereotypes on his blog and that they had thus failed to protect his freedom of expression (art. 10 ECHR). According to the Court, the domestic authorities had not given relevant and sufficient reasons to justify the restriction of the fundamental right and had omitted to follow the characteristics it had previously made in its case-law to assess that certain forms of political satire, especially those portraying issues of political importance, are protected by art. 10 ECHR. Furthermore, the imposing of criminal sanctions for such conduct was considered to have an undesired “chilling effect” on satirical forms of expression, and was not considered necessary in a democratic society.
In May 2014, Portuguese citizen Tiago Patrício Monteiro Telo de Abreu, member of a political party and elected municipal of Elvas, was found guilty of aggravated defamation by the District Court and sentenced to pay a fine as well as damages for the moral prejudice he had caused Ms. E.G, a municipal councilor. Monteiro Telo de Abreu had published three cartoons of a local artist on a blog of which he was the administrator. The cartoons depicted a sow with sensual attributes and a donkey dressed in a suit. The human-like animals were surrounded by “naked” pigs, who wore an armband with the abbreviation “CMR”, for Câmara Municipal de Rondónia, “municipality of Rondonia”.
The sow depicted in the cartoons borne resemblance to Ms. E. G. in such a manner that the Court established that it “represented Ms E.G. and that the white-haired donkey represented the mayor of Elvas” (§13). The national authorities considered that the main intention of the defendants through the publication of these cartoons was to criticize the quite controversial and polemical local executive power in place. Nevertheless, it also considered that, by representing the sow with lace stockings, a garter belt and heels, the artist had sought to evoke a prostitute; an objectified and promiscuous woman with a compulsive sexuality, thereby causing Ms. E.G anxiety, psychological fatigue and sadness, with consequences on her personal and professional relationships. It found that, by placing the sow alongside the donkey, the cartoonist had implied that there was an intimate relationship between them. These illustrations went thus beyond what could be seen as political satire and what could be considered fighting for democracy and free-thinking under the rule of law. In February 2015 the Court of Appeal of Evora upheld the fine imposed on the applicant. M. Monteiro Telo de Abreu appealed to the European Court of Human Rights.
In this case, the ECtHR had to examine whether national authorities had struck a reasonable balance between the obligations derived from respectively the applicant’s right to freedom of expression, and Ms E.G.’s right to the protection of her private life, both of which deserve equal respect. Regarding the applicant’s freedom of expression, the Court had emphasised on several occasions the importance of art. 10 ECHR, which is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb (Bédat v. Switzerland, § 48). This demand for pluralism is essential to the construction of a tolerant and democratic society.
For this reason, the Court carefully examines the conditions surrounding the expression of such speech; the speaker’s power of influence, the credulity of the audience, or the means used to disseminate the speech, for instance. In the present case, the Court considered that the domestic courts had not carefully analysed the reach of the three cartoons and their potential impact. Due to the importance of political satire, a critical eye on the meaning it tries to convey should be kept to evaluate its legality. Indeed, as the Court held, satire is “a form of artistic expression and social commentary which, through its characteristic exaggeration and distortion of reality, naturally aims to provoke and agitate” (§40). Because satire contributes to public debate, any interference with the right of an artist to use this means of expression must be examined with particular care, and this had not been done thoroughly by the national authorities. All elected representatives are necessarily exposed to some form of satire and caricature within the limits of exaggeration and provocation, as reminded by the Court (§44), and domestic authorities should therefore display a great degree of tolerance in that regard. Moreover, the cartoons had targeted all the members of the municipal council and had not aimed at targeting Ms. E.G. specifically.
On the means of disseminating, the domestic courts had held that, by using the Internet to publish the cartoons, the applicant had made them accessible to a wide audience. However, their accessibility on the Internet and the disseminator’s power of influence, its ability to attract the public’s attention and to increase the impact of the cartoons had not been adequately evaluated by them. Moreover, on learning that Ms E.G. had lodged a criminal complaint against him, the applicant had immediately removed the cartoons from his blog, suggesting that he had acted in good faith.
The Court considered that the domestic authorities had not carried out a thorough enough balancing exercise between the protection of the applicant’s right to freedom of expression and Ms E.G.’s right to the protection of her reputation. The reasons given by the domestic courts for the applicant’s conviction could not be regarded as relevant and sufficient. Hence the applicant’s conviction was not necessary in a democratic society (§48). There had therefore been a violation of Art. 10 ECHR. Furthermore, they had not taken into consideration the characteristics of political satire emerging from the Court’s case-law or referred to the Court’s case-law on freedom of expression. While the Court stated that “it was true that the cartoons echoed certain regrettable stereotypes relating to women in power” (§43), the majority did not elaborate on the sexist aspects of the cartoons.
In her concurring opinion on the present case, Judge Motoc considered that the Monteiro Telo de Abreu case was of such a nature that its circumstances can be seen as an example of violence against women in politics. She justly reminded that gender equality remains a goal to achieve, particularly for women politicians. She argued that as a matter of principle the Court must be prepared to strike the right balance whenever an issue relating to the influence of the depiction of women in the political sphere is presented in such a way (§39). Judges Kucsko-Stadlmayer and Schukking followed suit in their joint concurring opinion stating that gender stereotyping usually paves the way for contempt and discrimination against women in their professional life, and especially within a political setting. All state authorities must be sensitive to cases where women are victims of such stereotypes, whether in serious publications or in satire. As justly noted by the judges, this case is a manifestation of an even broader problem – the multiple ways in which women are degraded in comparison to men – and is not specific to the Court’s case law on freedom of political expression. The concurring judges had stated that the domestics courts were correct in noting the “visible and denigrating gender stereotypes expressed in the cartoons at issue” and were correct in including this aspect in their proportionality analysis.
Judge Motoc, while agreeing that the domestic courts had ended up decontextualizing the cartoons and giving an interpretation that did not consider the ongoing political debate, emphasized that they had rightly identified the “issue of violence against women in politics as symbolic violence” (§41) and regretted, rightly in our opinion, that the Court did not spend more time developing the harmful consequences of gender stereotypes on women. She took the opportunity to address the issue of violence against women in politics and presented, in an extensive concurrent opinion, this concept as well as the legal framework surrounding it. She described the numerous legislative efforts taken by states to protect women politicians and the relevant case law of the Court in that matter.
Although Judge Motoc is specifically concerned with the issue of violence against women in politics, we would like to reflect more generally on whether the prohibition of gender-based hate speech, including sexist elements in political satire, is desirable and possible without limiting the freedom of expression of others.
It has been shown that the mechanism of sexism is often at the root of human rights violations for women; prejudices and gender stereotypes against them precisely favor inequality and violence (See Moreau, S., ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds), Philosophical Foundations of Constitutional Law, Oxford University Press: Oxford 2019, 283-303; Brems / Timmer (eds.), Stereotypes and Human Rights Law, Intersentia, Cambridge 2016; Cusack, S./Cook, R. J., Gender Stereotyping : Transnational Legal Perspectives, University of Pennsylvania Press : Philadelphia 2010; Holtmaat, R., ‘Preventing Violence Against Women: The Due Diligence Standard with Respect to the Obligation to Banish Gender Stereotypes on the Grounds of Article 5(A) of the CEDAW Convention’, in Benninger-Budel, C. (ed.), Due Diligence and its Application to Protect Women from Violence, Marinus Nijhoff : Leiden 2009, 63-89).
Gender-based hate speech is an “expression of sexism, which can be defined as the assumption, opinion or assertion that one sex is superior to the other” (Council of Europe, Combatting Sexist Hate Speech). According to the Council of Europe, it should be regarded as a violation of the principle of non-discrimination and as constituent of a form of gender-based violence against women. It is considered to impede the achievement of de jure and de facto equality between women and men. Gender-based hate speech not only includes verbal and hate violence against women, such as insults, but also “over-sexualized” forms of discourse, such as the portrayal of women as sexual objects, who take pleasure in being humiliated or molested. As mentioned by Judge Motoc’s concurring opinion in the present case (§21 and following), various international instruments support this view, in international human rights law whether universal (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women), or regional (the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women [Belém do Pará], the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa [Maputo Protocol] and the Convention on Preventing and Combating Violence against Women and Domestic Violence [Istanbul Convention], which entered into force in August 2014.
Generally speaking, laws designed to limit or prohibit unlawful speech, including speech that is defamatory, hateful, or calls for violence, have been the subject of much political debate. Legal scholars have either noted the devastating effects of laws that restrict expression on many fundamental freedoms, or argued that such laws can, among other things by their deterrent effects, help prevent serious harm, both individual (by protecting the psychological health, autonomy, or safety of some people) and collective (by recognising each cultural and social identity, facilitating respectful intercultural dialogue, and providing access to participation in democratic public opinion formation). For the latter, prohibiting hate speech could even be justified in order to protect “human dignity” (Waldron, J., The Harm in Hate Speech, Harvard University Press: Cambridge, Massachusetts 2014, 11-17). Some other authors have argued that laws prohibiting hate speech should be limited to content that seeks to dehumanize a segment of the population (Phillipson, G., ‘Hate Speech Laws: What they Should and Shouldn’t Try to Do’, (2015) Revue générale du droit Etudes et réflexions 13), or should serve the purpose of recognising equality between all beings in society (Waldron, J., Dignity, Rank and Rights, Oxford University Press: Oxford 2012, 228).
Many states have laws, regulations, codes of conduct and jurisprudence that attempt to define hate speech, for example through laws against group defamation, prohibitions on expression and incitement to hatred and discrimination, prohibitions on obscene artistic expression, or condemnation of Holocaust denial and revisionism. Among these various legal framings of heinous speech, it is debated whether gender-based hate speech, including negative stereotyping and sexual and gender-based harassment, does or does not lead to a violation of women’s human rights, in particular the principle of non-discrimination. Indeed, this category of speech is specific because, while states have clear obligations under international human rights law to prohibit certain types of speech, such as racist speech (art. 4 CERD for instance), gender-based heinous speech has only recently been framed as a form of possible hate speech or sex- or gender-based violence (see Recommendation No. R (97) 20 of the Committee of Ministers to member states on “hate speech” and the ECtHR case Vejdeland and Others v. Sweden).
Because of a specific historical patriarchal context where men and women have been assigned gender roles and (especially sexual) stereotypes regarding these roles, insults and illustrations of gender stereotypes are often conceptually cornered as “every-day sexism”. They are, in a way, the tip of the iceberg of other forms of gender-based violence, which might not reach a serious enough threshold of violence to justify legal intervention, but which might legitimise more serious offenses. Belgium, France, and perhaps soon the United Kingdom, have decided to ban “sexism” or “misogyny”. These laws can most likely have a relatively important symbolic effect, which is recognised by the Group of Experts on Action against Violence against Women and Domestic Violence, the independent expert body responsible for monitoring the implementation of the Istanbul Convention. However, these laws may be limited in their effectiveness, their application remaining vague and undefined. They may also mask the sociological origin of these sexist behaviors or miss their target group.
Indeed, not only is restricting speech sometimes unnecessary in a democratic society as determined by the Strasbourg Court, it can also be dangerous. In a contentious case, whilst bringing forth the argument that the use of stereotypes should sometimes be limited or prohibited, there is a risk in making the prohibition a general and abstract norm. Indeed, such prohibitions run the risk of being instrumentalised. This is because what is or is not sexist means different things to different people. Furthermore, in different contexts and through different interpretations, prohibitions can harm the very people they are supposed to protect. In other words the fact of prohibiting, under the guise of equality, all sexualised or sex-related expression because they are deemed as “sexist” is hazardous in a patriarchal social context. It can lead to the censoring and silencing of forms of expressions that are essential to feminist and sexual minority movements. This argument is exemplified by recent threats on “gender ideology” in various state members of the Council of Europe (Bellami, V./Carazo Mendez, W./Gradin, C., ‘Dénonciation de la Convention d’Istanbul par la Turquie : L’insoluble équilibre entre volonté étatique et garantie des droits des femmes’, 2021 Droits fondamentaux) or through the censuring of feminist or subversive forms of speech (in France, for example, Pauline Harmange’s book titled “I Hate Men” was threatened with a censor ban by the representative of the Ministry of Gender Equality under the pretext that it incited hatred based on sex. See also Belavusau, U., Freedom of Speech: Importing European and US Constitutional Models in Transitional Democracies, Routledge : Abingdon 2016).
As far as gender-based hate speech is concerned, there are other promising legal remedies for women victims of gender stereotyping. In a recent case, the ECtHR condemned Lithuania for violating the positive obligations inferred not by art. 10 ECHR but by art. 14 and 8 ECHR – the right to the respect of private life – in a case concerning hate speech against homosexuals on the social network Facebook (Beizaras and Levickas v. Lithuania). It is also worth mentioning the vulnerability approach followed by the ECtHR in some of its judgments to dynamically protect women as a vulnerable category (See for instance, (See for instance, M.S.S. v. Belgium and Greece, §251; O’Keefe v. Ireland; B.S. v. Spain).
Of course, blatant sexist hate speech contributes to the structural oppression of women. Nevertheless, it may be useful to reflect more generally on the law’s role in re-injecting harmony to that structure by racing to the bottom (e.g. violating one’s right to freedom of expression) – especially in cases where it is not clear which elements can be considered as sexist. Determining the threshold of violence (perpetrator, dissemination, possible consequences of the speech) and providing context are all important elements. The debates surrounding sexist stereotypes and freedom of expression have illustrated the danger of silencing subversive discourses, especially regarding gender equality or gender stereotypes.
Democratic debate is also a matter of allowing the participation of every member of society to the public forum – so much so that the limiting of one’s right to express a political opinion can precisely lead to a culture of “cancellation”. Now that women are entering the sphere of political debate, as a result of the important recognition that they are subjects of human rights, and that they too have not only a voice but more and more opportunities to produce and create cultural content, be it artistic or political, it is fundamental to ensure that the equal exercise of freedom of expression is maintained.
As was justly done by the Court in the present case, it is important that the conditions for allowing unrestricted freedom of expression be absolutely analysed on a case-by-case basis, and should not be taken out of context. On the other hand, it is unfortunate that the majority did not incorporate a gender perspective on these burning issues – and in this sense, Judge Motoc’s concurring opinion provided an interesting insight that will hopefully guide the Court’s future case-law on these issues.
In the Monteiro Telo de Abreu case, the Court showed that the domestic courts had ultimately taken the cartoons out of their proper context and interpreted them in a manner that did not take into sufficient account the ongoing political debate. However, it did not give enough attention to the specific sexist elements of political satire and their deterrent effects, as was underlined by Judge Motoc’s concurring opinion. As to the nature and degree of severity of the penalties imposed, the Court also considered that the criminal prosecution of the applicant was disproportionate (§47). Specifically, the concurring judges considered that the use of political satire should not generally be subject to criminal prosecution (§ 42). Criminal prosecution on forms of expression inevitably leads to an uncomfortable sense of surveillance and, one could argue, is also inconsistent with an anti-carceral feminist view of the law (Ricordeau, G., Pour elles toutes : Femmes contre la prison, Lettres libres : Québec 2019).
Since the human rights of every individual are deserving of equal respect, the delicate balancing exercise of the Court is often a difficult one. Being able to debate in this manner – if the parties are otherwise considered equal – while reasonably and proportionally respecting human rights is essential. The present judgement and especially the concurring opinions have showed that the way to proceed in the application to individual cases would be to integrate the judicial reflex of calling out denigrating gender stereotypes in the proportionality analysis, in order to establish a possible direct link from sexist stereotypes to gender-based violence. To put it another way, the opportunity to have a gender perspective on these issues should be welcomed by the Court. As the judgment shows, it is necessary to protect one’s fundamental rights whilst also pointing out the more problematic aspect of sexist satire in a global context where women’s human rights continue to be frequently at stake in all domains of public and private life.