Dr Alberto Godioli (University of Groningen)
On July 17th, the judge in Milan’s Fifth Criminal Section ordered Italian journalist Giulia Cortese to pay €5,000 in damages to Prime Minister Giorgia Meloni (in addition to a suspended fine of €1,200) for what were found to be ‘defamatory tweets’ that ‘body shamed’ the Prime Minister.
Through decision no. 2251/2022, the criminal section of Italy’s Supreme Court of Cassation recently established that body shaming is a form of defamation, constituting a criminal offense under Art. 595 of the Penal Code. In particular, the Court of Cassation defined body shaming as ‘the conduct of someone who ridicules a person for certain physical characteristics by communicating with multiple people,’ thereby harming that person’s dignity and reputation.
In October 2021, Cortese had posted a mocked-up photo depicting Meloni in front of a framed picture of Benito Mussolini, to which the Italian PM reacted via Facebook as follows: ‘I believed this falsified photo, published by a professional journalist, is of unique gravity. I have already instructed my lawyer to take legal action against this despicable hoax. Is this what some left-wing journalism has come to?!’
Cortese replied on Twitter that she had promptly removed the image upon learning that it was fake, adding that ‘the media pillory you created on your Facebook page qualifies you for what you are: a little woman [donnetta].’ This was followed up with another tweet, in which Cortese wrote ‘You don’t scare me, Giorgia Meloni. After all, you’re only 1.2 meters tall. I can’t even see you’ (for the record, Meloni’s registered height is 1.63 meters).
While finding that the first tweet (reposting the fake photograph) did not constitute a crime, the Milan court found the two follow-up tweets to be criminally defamatory by means of body shaming. As reported by The Guardian, Cortese protested that being convicted over a ‘joke phrase’ was ‘scandalous.’ Highlighting the ‘climate of persecution’ in Meloni’s Italy, she added: ‘I don’t feel I have the freedom any more to write about this government, because once you are identified as an inconvenient journalist for this government, they don’t let anything pass.’ Cortese is now hesitant as to whether to file for appeal, as ‘going ahead with it risks costing me a lot, and I don’t know how it would end.’
As recently stressed by ARTICLE 19, ‘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. […] Criminal defamation provisions breach the guarantee of freedom of expression both because less restrictive means, such as civil law, are adequate to redress the harm, and because the sanctions they impose are not proportionate to the harm done.’
More specifically, the Milan court’s decision seems to be at odds with the standards set forth by the European Court of Human Rights, starting with the fundamental notion that freedom of expression – while entailing ‘duties and responsibilities’ as prescribed by Article 10 ECHR – ‘is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”’ (Handyside v. United Kingdom, at para 49).
With particular regard to humor targeting political figures, the ECtHR famously stated that ‘satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with the right of an artist – or anyone else – to use this means of expression should be examined with particular care’ (Vereinigung Bildender Künstler v. Austria, at para 33). Notably, this does not depend on the alleged ‘artistic’ merits of the contested expression, but rather on the importance of humorous exaggeration and distortion as a vital component of political debate. This is especially the case when potentially offensive humor targets powerful political figures, who should display a particularly high degree of tolerance towards ridicule and criticism (as frequently pointed out by the Court from Lingens onwards).
As distasteful as it might be, the exaggeration or distortion of physical characteristics has always played a central role in political satire – from the celebration of the ‘grotesque body’ in the medieval Carnival to James Gillray’s cartoons emphasizing Napoleon’s alleged short stature in the early 19th century, or more recently the plethora of jokes concerning the size of Donald Trump’s hands (more on which in this ForHum post by Laura Little and Hailey McHugh Gilles). Not by chance, the very word ‘caricature’ – designating one of the fundamental ingredients of visual satire – derives from the Italian verb caricare, i.e. to exaggerate. Despite not necessarily conveying a deep socio-political message, playing with the bodily appearance of political leaders can become a healthy reminder (for the public and the politicians themselves) that their authority is not absolute, and that they are closer to ‘ordinary’ people than they are usually portrayed to be. In this sense, the very existence and circulation of such unsavory jokes might serve as a litmus test for the state of democratic debate in a given political context.
To be sure – borrowing a metaphor that is frequently used in debates about comedy and satire – this inherently physical type of humor can ‘punch up’ towards powerful figures; but it can also ‘kick down’ to a varying degree, especially when the ridiculing of bodily features ends up reinforcing or normalizing harmful stereotypes. This is all the more likely when the target belongs to a group that is typically discriminated against; say, for example, women politicians in a socio-cultural environment where sexism is particularly widespread. After all, this is part of the intersectional dimension of humor. As defined by Kimberlé Crenshaw, intersectionality indicates how the several aspects constituting one’s identity – including race, gender, religion, social class, sexuality and disabilities – interact to create unique experiences of privilege or oppression. From an intersectional perspective, the same given target of a disputed joke might be both in a position of power according to certain parameters, and in a vulnerable one according to others.
In these situations, the intersection of ‘punching up’ and ‘kicking down’ elements within a contested joke should be assessed on a case-by-case basis, with particular regard to the context in which the expression was produced and circulated. A relevant case in point from the European Court of Human Rights is Telo de Abreu v. Portugal, focusing on a series of cartoons depicting local politicians as animals. In particular, a female municipal councilor was portrayed as a sow with blonde hair and bare breasts, surrounded by naked pigs. The blogger who had published the cartoons was initially found guilty of aggravated defamation by the Portuguese courts, and was ordered to pay a fine as well as damages for the moral prejudice he had caused the municipal councilor. However, the ECtHR eventually overturned the outcome of the national proceedings, arguing that – when analyzed in their original context – the cartoons amounted to political satire about the municipal council as a whole, rather than personal defamatory attacks specifically targeting the councilor.
In her concurring opinion to Telo de Abreu, Judge Iulia Motoc acknowledged the importance of context in interpreting satire, thereby supporting the Court’s decision. Yet, at the same time, she also emphasized the harm that ‘symbolic violence’ (such as sexist stereotyping) can do to groups suffering from structural discrimination (such as, in this case, women in politics). And indeed, there are cases in which the line between making fun of a public figure on the one hand, and inciting to discrimination on the other, becomes extremely blurred – see, for example, Ward v. Quebec (Canada) or the Morano cartoon case (France), both concerning particularly aggressive instances of dark humor with an ableist subtext.
As far as symbolic violence goes, Cortese’s tweets may well come across as ill-judged and potentially offensive to people of short stature. Yet, they do not seem likely to harm the dignity and reputation of the country’s most powerful political leader; nor, for that matter, do they seem to feature the ‘incitement’ component outlined in the United Nations’ Rabat Plan of Action as a necessary condition for restricting discriminatory speech. As a consequence, the problematic ‘kicking down’ element of the tweets may be best addressed by means of public debate, awareness-raising and counterspeech rather than through legal sanctions, lest cause a disproportionate chilling effect on political satire.
Speaking of context, fears of a widespread chilling effect on media freedom are particularly topical in present-day Italy, where Meloni’s government has often been accused of making strategic use of defamation suits to silence journalists and public intellectuals – from writer Roberto Saviano (who was fined €1,000 in October 2023 for calling Meloni and Matteo Salvini ‘bastards’ over their anti-immigration discourse) to philosopher Donatella Di Cesare (who is being sued by Meloni’s minister and brother-in-law Francesco Lollobrigida, after drawing comparisons between the latter’s ‘ethnic replacement’ theories and Nazi tropes) and journalist and novelist Rula Jebreal (currently facing two lawsuits over critical tweets about Meloni and her party). Back in 2023, Arianna Meloni – sister of the Prime Minister and wife of minister Lollobrigida – sued cartoonist Mario Natangelo over a cartoon making fun of the minister’s comments on ‘ethnic replacement.’
Somewhat ironically, the Milan court’s decision on Cortese’s tweets was issued just days after the Italian government officially renamed the Milan Malpensa airport after Silvio Berlusconi – who was no stranger to body-shaming jibes towards women political rivals, from Rosy Bindi to Angela Merkel. But that’s (partly) another story.
Alberto Godioli is associate professor at the University of Groningen, and co-founder of the Forum for Humor and the Law.