Irony in Court: Marina v. Romania

By Dr Alberto Godioli*

Introduction

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. Continue reading