Dr Alberto Godioli (University of Groningen)
November 2024 was a momentous month in the world of humor and the law, as well as a mixed bag for freedom of expression. On the one hand, humorous speech (in the form of parody) was restricted by two rulings coming from the UK – namely the high-profile case of Samherji v. Odee, and the Advertising Standards Authority (ASA)’s finding that a poster featuring comedian Fern Brady amounted to ‘offence on the grounds of religion.’ For a thorough discussion of both cases, please see the respective posts by Sabine Jacques and Jennifer Young on this blog. On the other hand, the right to humorous expression was protected in two decisions issued by Dutch and Italian courts. The former revolved around a campaign run by Greenpeace against the Dutch banking company Rabobank, while the latter concerned a facetious remark made by an Italian politician about a current far-right member of the European Parliament. Obvious differences aside, both cases highlight the importance of properly acknowledging the figurative nature of humorous communication.
Case #1: Cowboy (t)ropes
On November 26th, the Amsterdam District Court ruled in favor of Greenpeace Netherlands in summary proceedings brought by Rabobank. According to the Dutch bank, Greenpeace had violated portrait rights (as protected by Article 20 of the Dutch Copyright Act) by using the image of Rabobank CEO Stefaan Decraene in an anti-deforestation campaign. The contested campaign featured Decraene’s face on stickers, posters, a video, and on a fifteen-metre-high banner on an Amsterdam building, which did not openly mention his name and was removed after a few hours. In the material, Decraene is pictured holding a chainsaw in the middle of a jungle, but also as a cowboy in a ‘Wanted’ poster reading ‘Rabobank CEO responsible for deforestation – € 10,000,000,000 damage.’ These images refer to a recently published report, accusing Rabobank of ‘fueling deforestation’ by financing companies and individuals involved in the felling of forests in 37 countries.
While recognizing Greenpeace’s right to contribute to public debates, Rabobank took issue with their decision to employ the CEO’s face in the campaign. In the bank’s view, Greenpeace used Decraene’s portrtait to conduct ‘a large-scale and personal smear campaign’ which could directly endanger his safety (at para 4.7). As a consequence, Rabobank asked for all images of Decraene to be removed, under penalty of a fine of 10,000 euros per day – an amount which would have been transferred to a charity chosen by the environmental organization. However, the court ruled in Greenpeace’s favor, concluding that freedom of expression in this case outweighed the campaign’s interference with Decraene’s privacy. Reiterating a principle established by the European Court of Human Rights in Lingens v. Austria, the court added that ‘as chairman of the board, [Decraene] must accept that his face is linked to the bank he manages, and that he can be publicly addressed about his actions in that role’ (at para 4.12).
Humor, satire and related terms are not explicitly mentioned in the judgment, aside from reproducing the plaintiff’s statement that the use of Decraene’s portrait ‘can no longer be seen as a playful action’ (4.7). That being said, the Greenpeace campaign on Rabobank clearly has a humorous tone (irrespective of whether one might find it funny or not) – picturing the CEO as a ‘Wanted’ cowboy or a lumberjack is what humor scholars would call ‘non-bona fide communication’ (as opposed to literal or straightforward expression), creating some sort of incongruity which is (partly) geared towards mirth or amusement. As is typically the case with satire, the amusing element is combined with a social or political message. Conversely, the plaintiff’s rejection of the campaign’s ‘playful’ component goes hand in hand with their rather literal interpretation of Greenpeace’s banners and posters: ‘In these statements,’ Rabobank maintains, ‘[Decraene] is personally identified with a socially disqualifying context and the suggestion is created that he is guilty of criminal behavior. The statements are increasingly derogatory, disqualifying and intimidating’ (4.7).
In response, the court highlighted the figurative quality of the disputed images. Although the judgment does not directly refer to any rhetorical figure in particular, the ‘Wanted’ cowboy poster is correctly identified as a combination of metaphor and metonymy – also defined by linguists as metaphtonymy. To begin with, the poster fully qualifies as a metaphor, as it establishes a connection between two different conceptual domains (a bank’s CEO and a cowboy) by means of analogy:
Greenpeace has submitted several reports from which it deduces that Rabobank is one of the largest banks in the European Union when it comes to harmful financial flows to ‘deforestation and ecosystem risk sectors’. Greenpeace and Rabobank have met several times, during which Greenpeace’s aim was for Rabobank to publicly speak out in favor of a forest law for banks. After the consultations did not lead to the desired outcome, Greenpeace intensified its campaign […]. According to Greenpeace, the underlying message of this is: ‘The financial world is like the Wild West; there are no (or too few) rules that stop the flow of money to deforestation. And who is the biggest cowboy? The CEO of Rabobank, because under his administration the harmful flows of money from the largest bank towards deforestation-related sectors are continuing as usual.’ (at para 4.8)
Due to the conspicuous large cowboy hat, the use of the format of a wanted poster, and the mention of Greenpeace on the poster, it is clear that the text on it should not be taken literally, but that it is a way for Greenpeace to draw attention to its message. Greenpeace is critical of the actions of [Decraene], but inferring from these posters that he is being portrayed as a criminal is too far-fetched. (at para 4.11; my emphasis)
On a more fundamental level, as implicitly acknowledged by the court, the poster is also a metonymy – i.e., it replaces a term with another one from the same domain, based on a relation of contiguity (as in ‘the White House did not comment,’ where a building replaces the people it contains). Most pertinently to our case, metonymy can single out a person in a position of authority in order to signify a broader group or institution; this is a typical strategy in satirical cartoons, where individual caricatures of political figures are often used to indicate their respective parties or governments. By presenting the CEO as ‘the face of Rabobank’ (at para 4.12), the ‘Wanted’ poster resorts to the same basic metonymic process used by countless cartoonists. This also applies to the other images of course – for instance, the video featuring Decraene felling trees with a chainsaw is based on a metonymic chain in which the CEO replaces the bank as a whole, which in turn replaces the companies that are directly engaging in deforestation.
In short, with its use of metaphor and metonymy, the disputed campaign is a form of figurative ‘exaggeration and distortion of reality’ – which, as clarified by the ECtHR in Vereinigung Bildender Künstler v. Austria, lies at the heart of satirical expression. Restricting this type of patently non-literal communication – in the absence of any actual incitement to violence – could only result in an undesirable chilling effect on satirical speech, especially when the target is a public figure.
Case #2: Bar Italia
The facts in our second case took place in September 2023. During a debate at the Festa dell’Unità in Ravenna, Pierluigi Bersani – the former secretary of Italy’s centre-left Democratic Party – commented on the book Il mondo al contrario [The World Upside Down] that had been recently published by Roberto Vannacci (then-general of the Italian Army, and currently a member of the European Parliament for the rightwing populist party Lega). In his reflection on the book (in which Vannacci openly uses discriminatory language), Bersani invited the audience to picture an imaginary joint called ‘Bar Italia,’ where ‘you can call a gay person an invert, you can call a feminist a witch, or a black man the N-word, where you can say to a Jew ‘OK [you had] the Shoah, but let’s not exaggerate’… ‘That bar,’ Bersani added, ‘would never be empty in Italy. But if in that bar you can say all these things, can you also call a general an idiot?’
Vannacci responded by filing a criminal defamation complaint under Article 595 of the Italian Penal Code. The Prosecutor’s Office in Ravenna sentenced Bersani to pay a fine; however, the Democratic Party representative replied that he would face trial instead. As stressed by ARTICLE 19 among others, ‘the Italian defamation legislation has not been reformed in the last decades and remains a key area of concern about the protection of freedom of expression in Italy’; however, the outcome in this case was favorable to the defendant. According to the Ravenna District Court judge, the Prosecutor’s request ‘cannot be accepted, as it lacks a legal, or even a linguistic basis.’ In particular, the judge stated, ‘the plaintiff confused the figure of metaphor with that of allegory.’
To be fair, Bersani did use a rather explicit metaphor (or more precisely, a metaphtonymy) when he referred to the hypothetical general as a coglione – an Italian word which literally means ‘testicle,’ but is generally used as a synonym for ‘idiot.’ That being said, the judge is definitely right in pointing out that the insulting word is embedded within an allegorical construction – namely a fictional ‘what-if’ parable, which conveys a message without making any direct factual claim about the plaintiff. While often being defined as an ‘extended metaphor,’ allegory typically takes the shape of an elaborate story, whose overtly fictional dimension can be particularly relevant in defamation cases.
To be even more precise, Bersani’s allegory is based on the mechanism of contrappasso, which is best exemplified by Dante’s Divine Comedy – where the souls in Hell and Purgatory are punished in ways that either resemble or contrast with the sin itself. The ‘Bar Italia’ story envisions a hypothetical contrappasso by analogy: in a world dominated by the kind of derogatory language he seems arguably eager to condone, would the general be fine with being called an idiot? It is all the more fitting, after all, that Bersani’s statements were made in Ravenna, the city where Dante spent his final years and finished writing the Divine Comedy.
Ironically, Vannacci’s criminal defamation suit proved precisely Bersani’s point: many ‘free speech absolutists’ seem to be less committed to the cause when they are the target. Given the growing number of chilling attacks on satirical criticism under the current Meloni government, the District Court’s decision should be welcomed as a much-needed recognition of humor’s non-literal nature and imaginative power.