April 07, 2023
by Alberto Godioli
In her concurring opinion to Patrício Monteiro Telo de Abreu v. Portugal (No. 42713/15, judgment of 7 June 2022), Judge Julia Motoc highlighted the importance of recognising the harm caused by what she referred to as ‘symbolic violence’ against women – namely the circulation and reinforcement of disparaging sexist stereotypes (see Balzaretti 2022 for a more detailed discussion of this case). While agreeing with the finding of a violation of Article 10 of the European Convention, thereby considering the disputed sexist cartoons as protected speech due to their political nature, Judge Motoc argued that the domestic courts had ‘rightly identified the issue of violence against women in politics in its form of symbolic violence’ (§41), and stressed the necessity for the European Court of Human Rights to strike a fair balance between freedom of expression on the one hand, and protection from harmful stereotypes on the other. Albeit in a different form, issues of symbolic violence – with particular regard to sexist and homophobic humour – have recently come back to the fore in Canal 8 v. France (No. 58951/18 and 1308/19, 9 February 2023). In light of its similarities and differences with comparable cases such as the above mentioned Monteiro Telo de Abreu and Sousa Goucha v. Portugal, this case stands out as an important addition to the ECtHR’s growing jurisprudence concerning the nexus of humour, hate speech and symbolic violence.
Canal 8 v. France deals with two applications lodged in response to considerable financial sanctions ordered by the French audiovisual regulator (Conseil Supérieur de l’Audiovisuel, CSA) and confirmed by the Council of State (Conseil d’État), concerning two segments broadcast by Canal 8 in ‘Touche pas à mon poste’ [Don’t touch my TV] – an entertainment television show mainly devoted to covering current events in the world of television and media. In the first contested clip, dating back to 7 December 2016, the programme’s male host is shown playing a ‘behind-the-scenes’ game with a female pundit; as part of this game, the woman’s hands were placed on different parts of the host’s body, which she was asked to identify while keeping her eyes closed. After placing the pundit’s hand on his chest and arm, the host placed it over his crotch. Notably, nothing in this pre-recorded segment indicates that the woman knew this was to happen, or that she had consented to it. This sketch gave rise to more than 1350 complaints to the CSA, which sanctioned the broadcaster by suspending all advertising during the show for two weeks (including the 15 minutes before and after the programme).
The second clip (shown on 18 May 2017) consists of a series of telephone pranks where the same host speaks to men who were replying to a fake, sexually suggestive ad that he had placed under a false name on a dating website, pretending to be a bisexual person. In these conversations, the host plays a character named Jean-José, speaking ‘with a high-pitched and mannered voice, adopting an effeminate physical posture and a familiar vocabulary’ while encouraging his interlocutors to ‘make remarks with a sexual connotation’ and then pretending to be shocked when they agreed to do so (§26). During the call, the hosts’ interlocutors are also tricked into providing information which could potentially allow their acquaintances to identify them (e.g. their first names, city and job). Following more than 25,000 complaints from viewers and LGBTQIA+ associations, CSA sanctioned the broadcaster with a fine of three million euro.
In response to the sanctions imposed by the CSA for the both clips and following the dismissal of its appeals before the Conseil d’État, Canal 8 lodged its applications with the ECtHR, claiming a violation of Article 10 of the European Convention on Human Rights.
The ECtHR had to assess whether the sanctions imposed on Canal 8 by the CSA and upheld by the Council of State had infringed the applicant’s right to freedom of expression. With regard to the first segment, the applicant argued the following (§50-51): 1) The female pundit involved in the sketch is a public figure, which entails a higher degree of tolerance towards ridicule and offence; 2) She was not forced to take part in the game, as shown by the fact that she was not shocked; 3) Believing that a woman could not voluntarily choose to play such a game is actually sexist, and potentially detrimental in the fight against ‘serious’ violence targeting women; 4) Lastly, as established by the ECtHR itself in Sousa Goucha and Sekmadienis Ltd. v. Lithuania, the lack of a clear contribution to debates of general interest should not necessarily enable a member State to curtail freedom of expression.
Nevertheless, the ECtHR saw no reason to depart from the CSA’s decision, considering how (at the very least) the sequence was ‘carried out by a man without the explicit consent of the pundit,’ therefore offering a ‘stereotyped and degrading image of women’ and trivializing ‘unacceptable behaviour likely to become the subject, in certain cases, of criminal charges’ (§86). Moreover, the reference to Sekmadienis is turned around by the Court against the applicant itself, as that case showed – if anything – that member States enjoy a wider margin of appreciation when the disputed expression is of a commercial nature, or does not otherwise contribute to public interest debates (§80).
As for the second contested sketch, Canal 8’s application mostly rested on the following arguments (§55): 1) The pranks do not infringe the privacy of the callers, as the information they shared (first name, profession and city) is of a generic nature; 2) As previously exemplified by Sousa Goucha, the humorous exaggeration of stereotypes associated to homosexuality does not necessarily amount to stigmatisation or discrimination, and can therefore be protected under Article 10; 3) Any ‘reasonable viewer’ of the show is aware of the host’s progressive stance with regard to LGBTQIA+ rights; 4) Lastly, the host apologized the day after the broadcast, gave the floor to associations fighting against homophobia, and aired a spot on this subject during the programme.
In response to that, the ECtHR sided with the CSA and the Council of State which, on finding that the footage had perpetuated stereotypes that stigmatised homosexual people, had given precedence to the telephone hoax victims’ right to respect for their privates lives over the applicant company’s freedom of expression. In reaching this conclusion, the Court considered that the victims of the telephone hoax did provide identifying information (in some cases including their family name and physical characteristics) and statements about their sexual preferences and practices or sexual anatomy, without any attempt from the applicant company to obtain their consent and protect their identity and privacy. In this sense, the Court noted that the parallel with Sousa Goucha was not justified, as that latter case regarded a public figure who had publicly declared his sexual orientation (§93). Moreover, the clip was broadcast the day after the World Day Against Homophobia, Transphobia and Biphobia, and was watched by 740,000 viewers, including 30,000 aged between 4 and 10 and 20,000 aged between 11 and 14 – therefore, it had a significant impact on young audiences. These considerations, in addition to the absence of a contribution to public debates and the applicant company’s repeated previous regulatory breaches, led the Court to unanimously uphold the outcome of the domestic proceedings.
The notion of ‘symbolic violence’ is indeed central to this case – so much so that it was explicitly mentioned in the domestic proceedings, with particular regard to the first segment (whose dissemination is deemed ‘likely to contribute to symbolic and real violence affecting women,’ §59). Despite having a potentially broader reach, this concept is inherently related to hate speech, namely expression that is likely to incite to hatred, discrimination or intolerance targeting protected characteristics such as ethnicity, religion, disability or sexual orientation (although a fully-fledged, shared definition is still missing; see Mchangama and Alkiviadou 2021). As recently discussed in Godioli, Young and Fiori 2022, a systematic approach to contextual issues is particularly important in cases regarding the intersection of humour and hate speech (and, by extension, symbolic violence). In turn, context involves several different dimensions which may be more or less prominent depending on the nature of the case, including among others: 1) Sociocultural assumptions, e.g., shared beliefs regarding appropriate or inappropriate uses of humour within a given culture; 2) Genre, namely the discursive forms or tradition to which the disputed expression is perceived to belong; 3) Specific communication setting, referring to the spatial, chronological and socio-political circumstances in which a given humorous expression is produced and (predictably) circulated; 4) Co-textual cues, meaning the verbal or non-verbal hints surrounding the contested joke and guiding its interpretation; 5) Reactions and comments, i.e. the ways in which the audience’s response sheds light on the contextual functioning of the expression; 6) Prior ethos, namely the image of the speaker as reconstructed by an audience, based on the speaker’s ‘reputation, previous deeds, or generally known character traits’ (Korthals Altes 2014).
In Canal 8 v. France, the Court carried out a convincing analysis of all these contextual dimensions, with particular regard to the most notable ones in this case – namely genre, specific communication setting and prior ethos. Firstly, genre is one of the key differences between the disputed skits and the cartoons at the centre of Monteiro Telo de Abreu; while the latter were ascribed by the ECtHR to the satirical genre (and thereby assigned with a political meaning of general interest), the Canal 8 clips were promptly identified as commercially-oriented entertainment which had ‘neither the purpose nor the effect of contributing to any debate of general interest’ (§62). To be sure, distinguishing too rigidly between politically oriented humour and ‘gratuitous’ jokes is potentially problematic, and can excessively penalise forms of humour that do not carry an explicit socio-political message; the ZB v. France judgment can be seen as an example of these pitfalls, as previously noted (Nugraha 2021). However, in the case of Canal 8, the absence of any contribution to public debate is undeniably (and understandably) an important factor in the Court’s reflection on the necessity and proportionality of the sanctions. On a side note, next to these context- (and genre-) related differences, content definitely plays a role too, albeit in a less explicit way. In other words, compared to Monteiro Telo de Abreu, the violence featured in the first segment is arguably less symbolic and more literal, as it does not involve metaphorical tropes (as was the case with the cartoons), but rather the direct reproduction and trivialisation of ‘unacceptable behaviour likely to become the subject, in certain cases, of criminal charges’ (§86). In all likelihood, this cannot but have influenced the Court’s different approach to the two cases.
With regard to the specific communication setting, this aspect is most evident in the Court’s weighing of the fact that the second clip ‘was watched by 740,000 viewers, including 30,000 aged 4 to 10 and 20,000 aged 11 to 14, and therefore had a significant impact on young audiences’ (§70). In addition to that, it is worth mentioning that this contextual dimension also encompasses ‘positionality issues, such as the social status of both the target and the author/speaker of the contentious expression’ (Godioli, Young and Fiori 2022). These issues are duly taken into account in Canal 8 – when discussing the first clip, the Court emphasises the power imbalance between the male prankster and the female pundit (the latter being ‘placed in a situation of subordination vis-à-vis the host and producer,’ §86); with regard to the telephone prank, instead, the judgment highlights how the status of the targets (i.e. private individuals who were tricked into revealing intimate aspects of their lives) stands out as a major difference from Sousa Goucha (§93).
Lastly, prior ethos is mostly evoked by the applicant in their claim – concerning the second clip in particular – that the show host ‘is known for his positions in favour of tolerance’ (§55). Nevertheless, also in light of the contextual and content-related aspects mentioned above, the ECtHR persuasively concludes that this is not a sufficient counterweight to the potentially harmful consequences of both sketches.
Canal 8 v. France can be usefully compared to Monteiro Telo de Abreu v. Portugal and Sousa Goucha v. Portugal, due to its intersection of humour and sexist or homophobic tropes. However, while those two previous judgments eventually considered the contested jokes as protected speech, the outcome is different in this case. As discussed above, this is due to a combination of content- and context-related factors, which set Canal 8 aside from both Monteiro Telo de Abreu and Sousa Goucha. The effectiveness and desirable reach of legal restrictions against hate speech and symbolic violence is clearly a much-debated topic (see again Mchangama and Alkiviadou 2021 for a recent overview); and to be sure, humour further amplifies the judicial and interpretive challenges posed by this type of expression. However, in this specific judgment, the ECtHR arguably established a convincing precedent for denying Article 10 protection to disparaging humour that directly trivialises literal violence (as in the first disputed clip), or targets non-public individuals to the point of violating their right to a private life (as in the second clip).
An earlier version of this text appeared on the website of ForHum – Forum for Humor and the Law: https://www.forhum.org/blog/humour-and-symbolic-violence/.