Marieke Oostindjer (University of Groningen)
Editors’ Note: As announced in the last ForHum newsletter, we are currently working on a major overhaul of the ForHum database, including (among other new features) more search options and a publicly available user’s guide. This is the first in a series of blog posts illustrating the methodological principles underpinning the database and its ongoing renovation. More posts will be published closer to the launch of the renewed database in June 2026.
When searching for humor-related disputes in the Dutch case law repository Rechtspraak.nl, one might be surprised at the sheer diversity of the results. In one case, the day after Formula 1 driver Max Verstappen appeared in a supermarket commercial delivering groceries in a race car, a competitor released a parody featuring a Verstappen lookalike in identical racing gear – except he’s handing out groceries in a delivery cart instead. The video went viral with over 300,000 views before Verstappen sued the latter supermarket for personality rights infringement. In another case, presenters/authors Arjen Lubach and Janine Abbring in their younger years parodied music from Eminem and Dido’s song “Stan” as “Jelle,” in which an obsessive fan is writing letters to the singer of the Dutch band De Kast, Syb van der Ploeg, ending with that fan cycling into the Tjeukemeer with his guinea pig—the guinea pig drowned, and De Kast sued the artists for copyright infringement due to the use of elements from their own songs in the parody. Other disputes concern offences as diverse as identity theft and incitement to hatred. To what extent, then, can these very different expressions qualify as humor? And who gets to decide whether they can be included in a database of ‘humor-related’ cases? For ForHum, as I will clarify shortly, the answer lies in what can be called a “constructivist” approach to humor.
As part of my internship at ForHum, I’ve been retrieving and summarizing cases for the Dutch section of an international database on humor and free expression. ForHum collects court cases where humor plays a central role – either as the contested expression itself or as a defense strategy. The goal is to understand how different legal systems handle the tension between protecting free expression and preventing harm when humor is involved. But what counts as humor? In this blog, I’ll explain the constructivist approach underpinning the database, and what I discovered while searching for Dutch cases.
Why does this matter? Humor sits at an uncomfortable intersection in law. Satire and other forms of humorous expression deserve protection, but harmful speech doesn’t become acceptable only because someone says “it was just a joke.” By systematically collecting relevant cases, ForHum creates a resource for understanding how courts navigate this tension.
Is this… humor? Constructivism vs Essentialism
The collection method becomes important at this stage. The way we define “humor cases” affects which cases get included and what we can observe across them. This makes the methodological choice – what counts as a “humor case” – worth explaining carefully.
The main question I had to start with was: when is something humor? ForHum uses what is called a constructivist approach, as opposed to an essentialist approach (for a definition of these two terms see, for instance, Schudson & Gelman 2022). The essentialist approach posits the existence of an objective essence of humor, which could be identified for example by its technical features – such as punchlines, irony, exaggeration, or comedic structure. The constructivist approach, instead, entails that the perception of a given expression as “humorous” or “funny” is the result of a social construct. In other words, humor is in the eye of the beholder. For the purposes of our data collection, this means that when someone frames an expression as “humor” in court, then the case (in principle) belongs in the database.
The practical difference is significant. Under an essentialist approach, a death threat wouldn’t count as humor just because the defendant called it a joke – it would need to actually resemble an “objective” definition of comedy. Under the constructivist approach, that same case gets included precisely because humor was invoked, even if the expression seems obviously threatening rather than funny. The method captures the subjective, context-dependent nature of humor, which is often at the heart of a litigation.
Inevitably, the cases included in the database are often more upsetting than entertaining: racist posts defended as “ironic satire,” threatening messages claimed as “absurd humor,” hateful speech framed as “just joking.” The constructivist approach doesn’t require anyone to agree that these expressions are actually humorous. It only requires that humor was claimed as legally relevant.
Among other reasons, ForHum chose this approach because in legal contexts, humor isn’t just about making people laugh – it’s about how people choose to strategically present their expression. To understand when and why people invoke humor as a defense, and how courts respond, we need to include cases where humor is claimed even when it’s not (in our view) convincingly present. The constructivist approach captures this reality: humor in law is more about framing and interpretation than any commonly accepted idea of ”fun”.
Different categories
In practice, applying the constructivist method meant learning to recognize when humor was legally relevant. Some cases were straightforward: cartoons, satirical columns, parody songs, comedy sketches. When a political cartoonist gets sued for defamation, humor is obviously central – no one needs to claim it. The legal dispute is about boundaries (did the cartoon go too far?), not about whether humor is present.
Other cases were less obvious. Here, the constructivist method became crucial: if anyone in the legal process claimed something was humor, it belonged in the database. However, this is not necessarily the approach of judges when deciding on cases. In the Joustra case, a man posted online “Treason carries the death penalty: Tjibbe Joustra [a Dutch civil servant] must face the firing squad”. The message appeared on GeenStijl, a Dutch satirical news website, in a comment thread filled with angry reactions to a government report on deradicalization. The defendant later argued this was “political satire with a ridiculing tone,” arguing it was merely a tasteless joke that should have been obvious given the website’s provocative character and his use of hyperbolic language. The court rejected this defense. Despite GeenStijl’s satirical reputation, the judges found no evidence of satire in the defendant’s short, unambiguous statement. And here the constructivist approach to humor becomes relevant, although no one is presumably laughing.
A similar example is the Racist forum thread case: a moderator opened a forum thread titled “The Racist Thread” with the description “In this thread you can give free rein to all your racist views and/or expressions. We interpret ‘racism’ broadly, so German-hatred is also ok.” For months, racist images and texts appeared on the publicly accessible forum. The moderator defended himself by claiming the entire thread was meant to “demonstrate the stupidity of racism” through irony and satire. Was this genuine satire? The judge didn’t think so – finding that any satirical elements were “easily overlooked” and “outbalanced by the impact of the racist content.” But from a constructivist perspective, the case still belongs in the database. The moderator’s humor claim – however unconvincing – made humor legally relevant. That’s what constructivism captures: not whether something IS humor by some objective standard, but how humor functions as a legal argument.
In other cases, however, courts found the defendant’s humor claims more convincing. In the DubbelFriss v PAGE case, for instance, the toilet paper company PAGE argued that its competitor DubbelFriss had unlawfully used PAGE’s trademarked labrador in a TV commercial. Yet, the court found that the DubbelFriss commercial could indeed be understood as parody, and therefore did not amount to trademark infringement.
Grey areas
The constructivist method sounds straightforward – include cases where humor is mentioned by any of the involved parties -, but the boundaries aren’t always clear. Sometimes humor appears in a case without being invoked as a defense. In one case, a defendant posted a graphic cartoon criticizing local government decisions. He defended himself purely on freedom of expression grounds, never mentioning humor or satire. Yet the expression was clearly a cartoon – a traditionally humorous medium. Should this be included? I decided yes, because even though the defendant didn’t explicitly claim humor, the choice of medium (cartoon) made humor contextually relevant to understanding the case.
Other cases were easier to exclude – for instance those in which humor only appears in the background. In a rental dispute case (ECLI:NL:GHSHE:2023:178), the plaintiff used the word “sarcasm” in an email to the housing association. While this word appeared in the case documentation, it had no connection to the litigation itself, and therefore was not relevant for the purposes of our database. The constructivist method requires that the humor angle be legally relevant, not just accidentally present. Similarly, I excluded the Wilders cartoon competition case, where a Pakistani man was convicted for preparing a terrorist attack after Wilders announced a Prophet Mohammed cartoon competition in Parliament. While cartoons triggered the case, the legal proceedings focused entirely on the terrorist threat, not on any humor-related defenses or arguments.
These boundary decisions reveal something important: even with a constructivist method, editorial discretion doesn’t disappear entirely. The method prescribes including cases where humor is significantly mentioned or clearly relevant, but terms such as “significantly mentioned” and “clearly relevant” still require interpretation. Is a cartoon always humor-relevant, even when the defendant doesn’t mention it? And what about columns that blur opinion and satire? The constructivist approach provides guidance, but not always certainty. These grey areas are where the work of building a database becomes less about following rules, and more about making reasoned judgments about legal relevance.
To conclude: Humor as a strategy
So why does identity theft appear next to a parody song in the same database? Because the constructivist approach doesn’t judge whether something is “really” humor – it captures how humor functions as a legal argument. When someone defends identity theft as “satirical parody,” that claim makes humor legally relevant, even if unconvincing. When a company invokes the parody exception for an advertisement, the plausibility of this humor claim becomes a technical legal question. And when a racist forum is defended as “ironic satire,” we see how humor can be weaponized as a shield. This explains why such different cases – identity theft, parody songs, advertisements, incitement – can sit side by side in our database. It reveals that in legal contexts, humor isn’t a uniform phenomenon with clear boundaries. It’s a contested concept that people deploy strategically, that courts must navigate carefully, and that shapes the boundaries of what we can and cannot say. The constructivist method captures this complexity by asking not “what is humor?” but “when and how do people claim something is humor?” And following up on this question, there is something interesting to say about how courts of law – in the Netherlands and anywhere else – try to answer that question.