Rohaan Thomas Mathew (LLM Utrecht University)
The Reasonable Reader Standard
Humour has historically served as a tool for stimulating public debate, receiving a high level of protection from state interference in international law. At the same time, the elusive nature of comedy can disguise hate speech as satire and offer the author plausible deniability by denoting discriminatory messages as a joke. Humour as a non-bonafide form of communication results in differing interpretations by segmented audiences who create meaning depending on their background, culture and context. Accordingly, in humour-based free speech adjudication, interpretative frameworks accounting for the contextual factors of humour are necessary to determine the interpretations, effects and thereby legality of an offending expression.
One such framework historically used by the European Court of Human Rights (ECtHR), is that of the reasonable reader standard, which reconstructs satirical interpretation through the lens of a rational member of the public. The standard can be illustrated through Nikowitz v. Austria, which concerned a satirical article that made statements about a famous sportsperson. The ECtHR highlighted that the satirical and ironic style of the article clearly demonstrated it to be humorous commentary, thereby disagreeing with the domestic court’s claim that “the average reader would be unable to grasp the text’s satirical character and, in particular, the humorous element of the impugned passage”.
The reasonable reader, however, has been criticised for overlooking contextual factors, its overeliance on intent, its subjectivity and for failing to account for how specific audiences may interpret humour (e.g., Hussain & Sanghi 2022). These shortcomings are exacerbated in the digital age, where content circulates rapidly across cultural and geographical boundaries and where coded messages can intensify intolerance among intended recipients.
The Presumed Audience
Numerous scholars, such as Philip Yves Kuhn, have proposed the need to replace the abstract reasonable reader standard with alternative context-based frameworks, considering the more objective criterion of dignitary harm. In doing so, the focus would shift towards understanding whether the expression undermines the target’s status as an equal member of society.
Building on this, Godioli et al. have proposed the concept of the ‘presumed addressee’ or ‘presumed audience’, derived from the work of literary theorist Wayne Booth. When applied to free speech decisions, this notion entails determining the plausible reception of the disputed expression among the audience that the author could reasonably presume to reach, in light of a series of contextual factors.
This approach was implicitly applied in Feret v. Belgium, where the ECtHR considered how xenophobic pamphlets would be interpreted by their intended audience rather than by a neutral observer. The Court concluded that the pamphlets “presented the communities in question as criminally minded” and intended “to make fun of the immigrants concerned, with the inevitable risk of arousing, particularly among less knowledgeable members of the public, feelings of distrust, rejection or even hatred towards foreigners” (para. 69). Regardless of differing views on the final outcome, the Court’s majority in Féret sets out to determine whether the (context-grounded) presumed audience – as opposed to a generic reasonable reader – would be capable of engaging in hateful or hostile acts as a result of the disputed expressions. In principle, such an approach could allow for a more context-sensitive balancing between freedom of expression and the prevention of harm.
This blog post aims to highlight the shortcomings of the reasonable reader standard and discuss whether the presumed audience could be an alternative interpretative framework. It will first highlight the importance of context in humorous interpretation and the arbitrariness of the reasonable reader through two ECtHR cases, namely Z.B. v. France and Petrov v. Russia. It will then analyse these cases in light of the notion of the presumed audience, dignitary harm as well as within the Rabat Plan of Action. Thereafter, it will discuss whether the presumed audience could offer a more context-based and consistent interpretative framework for humour-based free speech adjudication.
Z.B. v. France and Petrov v. Russia
In Z.B. v. France, the ECtHR upheld a conviction concerning a T-shirt containing humorous references to 9/11 worn by a three year old named Jihad born on September 11th, as glorification of terrorism. The T-shirt, a gift from the child’s uncle, had the words “I am a bomb” on the front, and “Jihad, born on September 11” on the back. The T-shirt was only worn once at preschool, and only seen by adults when a teacher and the school’s director changed the child’s clothing. The ECtHR’s reasoning points towards three context-based interpretative issues, which resulted in their decision to uphold the domestic conviction for advocating crimes of willful attacks on life.
Firstly, the ECtHR did not engage in an extensive analysis of the (con)textual elements of the joke. The Court referenced Leroy v. France, which concerned the publication of a cartoon on the 13th of September 2001, with a caption showing satisfaction with the 9/11 attacks, to determine that the content in Z.B. fell out of matters of public interest. This is arguably a vastly different context compared to a T-shirt seen only by two adults, eleven years after 9/11, the content of which showed no satisfaction with 9/11. Had the Court analysed the contested expression in regards to its genre, the content could arguably be interpreted as highly societally relevant, and therefore highly protected. As argued by Godioli & Young, the content points to a trend where comedians with a Muslim background reclaim the notion of being called a terrorist, in an attempt to highlight the stereotypical discrimination the Islamic community has faced since the 9/11 attacks. As humour research has shown, this falls under the category of sarcastic dark humour, where marginalized groups reclaim derogatory statements as a form of protest or ridicule.
Secondly, the court was inconsistent in how they weighed different contextual factors in their decision. As a result of recent terrorist attacks in the region, the ECtHR determined that the fact that eleven years had passed since 9/11 was not a significant factor to diminish “the significance of the message at issue” (para. 60). While significantly weighing the above context in their decision, the ECtHR did not emphasise the context of the background of the applicants – who had no links to terrorist groups or ideologies – in their decision: “the fact that the applicant has no ties with any terrorist movement whatsoever, or has not subscribed to a terrorist ideology, cannot attenuate the scope of the disputed message” (para. 60).
Third, if we consider the reasonable reader and the context of the joke, semantic elements such as Jihad being a common Muslim name, the child actually being born on 9/11 and the genre of sarcastic dark humour, it can be argued that a reasonable person would not interpret the shirt as glorifying terrorism.
In contrast, Petrov v. Russia (part of Yevstifeyev and Others v. Russia) shows an extensive and nuanced analysis of the content of the humorous expression to determine public interpretation. However, similarly to Z.B., the case illustrates the subjectivity and interpretative shortcomings of the reasonable reader when applied without real life context.
The case concerned a satirical-parody video featuring a “gay hunt”, in response to a pro-government video during a Russian constitutional referendum campaign which promoted an amendment to define marriage as solely between male and female. The parody video portrayed a dystopian version of Russia in 2035 endorsing the hunting of homosexuals, and included homophobic slurs to accentuate the message.
The Court implicitly relied on the reasonable reader to determine whether the content of the video, taken in its overall context, could achieve the level of “severity” to impact the identity of the LGBTI community. In reaching this severity threshold, it would also impact the private life of individual LGBTI members by affecting their feelings of self-worth, thus resulting in a violation of Article 8 of the ECHR.
The Court found two factors to potentially reach the severity threshold, the first being that gender and sexual minorities elicit “special protection” from discriminatory speech due to a history of victimisation and marginalization, particularly in the Russian context. Secondly, the Court determined that the video was released on social media platforms by a well-known comedian, thereby reaching a wide public audience which also resulted in comments that endorsed the murder of homosexuals.
However, when considering the clear satirical and parodic aspects of the content, the Court found that the video “could not reasonably have appeared to have as its purpose the propagation of homophobic views and ideas” (para. 56, my italics). In combination with the ECtHR principle that “a certain vivacity of comment may be tolerated more than in other circumstances” in the context of a political campaign, the Court determined that the video did not reach the “threshold of severity” to justify a violation of Article 8. While the ECtHR applied a thorough contextual analysis to determine the author’s intent, the judgment still highlights the abstract nature of the ‘reasonable public’ standard, by omitting the potential dignitary harm accruing from the homophobic responses.
These two cases further highlight the ECtHR’s inconsistent approach to satirical interpretation through the contrasting weight placed on intent in their reasoning. In Z.B., the Court weighed other contextual factors significantly higher than the applicant’s intent. In Petrov, however, the Court ultimately made their decision on the fact that the video did not have homophobic intentions, regardless of other contextual factors such as its widespread dissemination and the actual homophobic responses that arose.
Z.B., Petrov and the Presumed Audience
When considering Z.B. v. France, the presumed audience in its strictest sense were the adults working at Jihad’s preschool, two of which eventually saw the T-shirt. However, if we consider the above-mentioned genre of the joke and the applicant’s social context, the presumed audience could also be interpreted as marginalized Muslims who have experienced negative stereotyping post 9/11. By extension, we can view the joke as contributing to a public debate on matters of interest, warranting high protection from restriction. Therefore, we could determine that the presumed audience would also not interpret the T-shirt as a glorification of terrorism.
Had it been established that the applicant intended the T-shirt to also be worn outside preschool, then the presumed audience would also include members of the public that would have been offended or shocked by the joke. Nonetheless, we would need to consider how likely these people would interpret this as “glorification of terrorism” and be incited to hatred or violence.
Similarly, in Petrov, we can infer that the presumed audience in its strictest sense was not the homophobic public. However, as the video was shared on social media, the presumed audience would also include anyone on the internet who accessed this video. The video was viewed over 120,000 times and garnered 714 comments, some of which were made in support of the murder of homosexuals. Therefore the actual responses, even if only a portion of them, contrasted the idea of a reasonable reader being able to delineate the video as pure satire.
The Court, while noting the hateful comments, did not include them in their application of the reasonable reader standard, nor provided any justifications of why this contextual aspect was left out. This approach is at odds with Féret v. Belgium, and is further worrying as the case under discussion concerns actual, non-hypothetical, responses that endorsed murder. Considering Kuhn’s test of dignitary harm over intent, we can extend the presumed audience to also include unintentional harmful interpretations.
While the author is not, and should not be held responsible for all interpretations of a given comedic piece, the case points to a tension in free speech adjudication between responsibility and actual harm. Even though the author did not have any hateful intent that would justify a criminal conviction, the arising homophobic comments can certainly impact the dignity of LGBQTI members who witness comments endorsing their murder, even if not all the comments reflected this. Irrespective of the final decision, a closer consideration of this aspect would have arguably benefitted the Court’s reasoning in Petrov.
In placing more weight on the intent of the video over the vulnerability of the target group, the widespread dissemination of the video and the real life hateful responses, it can be argued that the Court did not adequately consider the likelihood or imminence of harm potentially arising (albeit involuntarily) from the contested expression. This is particularly relevant in the context of social media, where viral content can easily circulate among a wide, non-homogenous audience.
In respect to these judicial considerations we could refer to the Rabat Plan of Action, adopted by the UN in 2012, which stipulates a six-part threshold test in discerning freedom of expression and illegal incitement.
For Z.B., if we consider part 5 of the Rabat Plan, namely “the reach of the speech act, its public nature, its magnitude and size of its audience”, the T-shirt was unlikely to reach widespread dissemination compared to public broadcasts in mainstream media. Furthermore, part 6 (likelihood and imminence) stipulates that “the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognizing that such causation should be rather direct”. Based on the humorous nature of the expression and its genre, it is unlikely to invoke actual hateful action against a target group. As such it can be argued that the threshold requirement was not met, and that a conviction was unjustified.
In regards to Petrov, when considering part 3 (intent), the Rabat Plan clearly indicates that consideration should be given to the “triangular relationship between the object and subject of the speech act as well as the audience”. In failing to provide reasoning behind the exclusion of actual audience responses and rather focusing on the purpose of the video, the Court did not fully consider the interplay of the above relationship. Following point 5 again (extent of speech act), special attention should also be paid to its public reach, its means of dissemination, frequency, quantity and whether it was contained in a restrictive environment or publicly available. By virtue of the video’s 120,000 views, its limitless and uncontrollable reach through social media, it can be argued that this expression reached the threshold of highly extensive reach. Finally, regarding “likelihood including imminence”, the Court has to show the incitement as “rather direct”. In the current case, while the intention of the video was not to endorse the murder of homosexuals, there was a direct causation of the video being posted and comments being made that endorsed the murder of homosexuals by the public.
Taken in its overall context, the video in Petrov would not fulfill all parts of the threshold test. However, the above analysis further highlights the subjectivity of the ‘reasonable public’ standard as applied by the Court, which neglected to fully consider the homophobic responses without providing any justifications. While a criminal conviction would be disproportionate in this case, it could be argued that the Court should have at least addressed this aspect as part of its assessment of context.
Would the presumed audience actually provide better protection for applicants?
As demonstrated above, when determining whether an expression can constitute harmful speech, special attention has to be given to context as well as understanding public perception. While providing a useful framework, the reasonable reader standard has been shown to result in interpretative problems and inconsistencies, arising from its context-limited approach to defining a ‘rational-thinking member’ of society. Context is particularly relevant when it comes to humour, whose multifaceted nature elicits a plethora of possible interpretations, with its subjective nature allowing for plausible deniability of harmful intent.
The presumed audience, being a more context-grounded approach to determining actual public perception, can potentially offer a more nuanced framework in humour-related free speech adjudication. However, further research needs to be conducted on what this test would mean in practice. We would need to understand if this test would lead to a more reliable balance between protecting freedom of expression and countering harm, as well as determine whether problems would arise from its application.
One of the benefits of the reasonable reader for judges lies precisely in its abstract nature, dispensing the judges themselves from engaging in complex cultural considerations. Developing more context-based methods of interpretation would require judges to understand and integrate these methods; as such, we need to determine the feasibility of doing so, and how this would fit into a legal framework.
Beyond the legal implications, this test would also have social implications that need to be understood. For example, how one would assess and understand the context of expressions published on social media; how overlapping identities and intersectional discrimination would factor in; and how to even define social and cultural groups for the purposes of applying the test. This means the research would need a solid foundation in cultural and sociological research on humour, perhaps supplemented with critical-theoretical approaches to definitions of cultures and power relations between them. In doing so, we could further assess to what extent the presumed audience framework could assist courts in protecting individuals from discrimination, while at the same time safeguarding provocative (but legitimate) forms of humorous expression.