Title |
Petrov v. Russia |
Date
|
03/12/2024 |
Country |
RUSSIAN FEDERATION |
Judicial Body |
European Court of Human Rights (Third Section) |
Case number |
22327/22
|
Main themes |
Discrimination Homophobia Respect for private life Right to human dignity |
Type of humor |
Dark humor Parody Satire |
Decision direction |
Expands expression |
Outcome |
Inadmissible |
Summary |
The pro-government website FAN ran a video to influence a national vote on a proposed amendment to the Russian Constitution, which would define marriage as a relationship between one man and one woman. This video was set in 2035 and told the story of an orphan being adopted by two men. The child was distressed that he would not have a new mother. To comfort him, one of his fathers, in full make up, offered him a dress to wear. The voice-over asked, “Is this the Russia you choose?” before calling on viewers to vote for the amendments.
This video was then parodied, and uploaded onto Instagram by DK, a comic actor and television presenter. The video showed a mock “gay hunt”. It was also set in 2035 and depicted a father and son in a forest carrying rifles, wearing hunting outfits and hunting gay men. They discuss hunting gay people and use a homophobic slur and calling out “Starbucks” to lure them out of the undergrowth. They shoot a man in colourful clothes and pose with his dead body in the manner of big game hunters. It ends with the tag line “Is this the Russia you choose? Vote for the amendments to the Constitution. Amendment no. 66. Russians are authorised to hunt big game, homosexuals and birds during the summer.”
The applicant, who is openly gay and the executive director of the Moscow LGBT Initiative Group Stimul, a public association for equality and human dignity, lodged a criminal complaint under Article 282 of the Criminal Code. He argued that the video was a call to violence against gay people, in which they were dehumanised and portrayed as prey. This was not pursued by the courts. He then lodged an administrative offence complaint Article 20.3.1 of the CAO and requested that the material be restricted. When a Moscow prosecutor questioned D.K he explained it was a parody of FAN’s video which mocked homophobia by exaggerating it to a grotesque level of absurdity. He considered that the video’s satirical message was obvious and that it was impossible to understand it literally. The prosecutor refused to open a case.
The applicant brought the case to the ECtHR on the grounds that his Article 8 rights and Article 14 had been violated. The Court was not convinced that the video was approving of hunting gay people. They considered the content, humorous tone and the context in which it was published. It considered it was a political satire on a subject of general interest and was clearly a parody. The Court considered it sought to mock the homophobic message of FANS’s video by exaggerating it to an absurd extent. The Court stated that as a political satire on a matter of public interest it did not reach the “threshold of severity” required to affect the Article 8 and 14 rights of individuals of the LGBTI community. The case was declared inadmissible within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
|
Link to case |
https://hudoc.echr.coe.int/eng?i=001-238262 |
Link to analysis |
|
Title |
Oversight Board Case of Derogatory image of candidates for U.S. elections |
Date
|
23/10/2024 |
Country |
UNITED STATES |
Judicial Body |
The Oversight Board |
Case number |
2024-057-FB-UA
|
Main themes |
Bullying Harassment Media Platforms' policy/standards Sexual content |
Type of humor |
Election Parody Political content Sarcasm Satire Social media |
Decision direction |
Expands expression |
Outcome |
Meta overturned its decision to remove the content after the Oversight Board brought the decision to the company's attention. |
Summary |
In August a Facebook user superimposed pictures of Vice President Kamala Harris and her running mate Tim Walz over the characters from the film Dumb and Dumber. The altered picture was based on the film poster in which the two actors are grabbing each other’s nipples through their clothing. The accompanying caption included the emojis “????♂️????????.”
The post was removed under Facebook’s Bullying and Harassment Community Standard which prohibits “derogatory sexualized photoshop or drawings”.
The Board stated that it was an “overenforcement of Meta’s Bullying and Harassment policy with respect to satire and political speech in the form of a non-sexualized derogatory depiction of political figures.” It additionally highlighted the dangers that over enforcing the policy can have, “especially in the context of an election, as it may lead to the excessive removal of political speech and undermine the ability to criticize government officials and political candidates, including in a sarcastic manner. This post is nothing more than a commonplace satirical image of prominent politicians and is instantly recognizable as such.”
The decision was overturned and Meta reinstated it on the grounds that there was no violation, and the image did not constitute sexual activity.
|
Link to case |
https://www.oversightboard.com/decision/fb-fwixegxq/ |
Link to analysis |
|
Title |
Dianova v. Russia |
Date
|
10/09/2024 |
Country |
RUSSIAN FEDERATION |
Judicial Body |
European Court of Human Rights |
Case number |
21286/15
|
Main themes |
Obscenity Protest |
Type of humor |
Dark humor Film Performance Political content Ridicule Satire |
Decision direction |
Expands expression |
Outcome |
Violation of Article 10, Violation of Article 11, Violation of Articles 5 and 6. |
Summary |
This application is a bundle of two cases brought by five Russian nationals.
Anastasiya Sheveleva, Leonid Mikhaylov, Roman Roslovtsev, and Valeriya Zenyakina,were arrested whilst in a Moscow Park making a satirical film about Vladimir Putin. One was dressed as a satirical version of Putin whilst the others carried posters with absurd slogans, covered each other with chocolate and pledged their love for Putin. Although they had chosen a remote location in the park, they were apprehended. According to the Government, passers-by informed the police that people were chanting slogans and holding posters with obscenities. They were accused of participating in an unauthorised public event. They argued that this was not a public or political event but rather the making of a film. They were found guilty under Article 20.2 § 5 of the CAO and fined RUB 10,000 in proceedings which were conducted in their absence. Their appeals were rejected.
The European Court of Human Rights found a violation of Article 10 in respect of Ms Sheveleva, Mr Mikhaylov, Mr Roslovtsev, and Ms Zenyakina ,and violation of Articles 5 § 1 and 6 § 1 in respect of Ms Sheveleva, Mr Mikhaylov, Mr Roslovtsev, and Ms Zenyakina.
[The second case concerns a hunger strike by Ms Dianova, a pensioner who was carrying out regular inspections of detention facilities as a member of the of the Public Monitoring Commission of the Sverdlovsk Region. After being denied entry to see a detainee who had been severely beaten whilst in a special-regime correctional colony, she and another member were charged after they went on hunger strike to draw attention to the ill-treatment. This does not pertain to humour. The ECtHR found a violation of Article 11.]
|
Link to case |
https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Dianova%20v.%20Russia%22],%22itemid%22:[%22001-235602%22]} |
Link to analysis |
https://globalfreedomofexpression.columbia.edu/cases/dianova-v-russia/ |
Title |
Varghese v. State of Kerala |
Date
|
22/07/2024 |
Country |
INDIA |
Judicial Body |
Court of First Instance |
Case number |
CRL. MC No. 4384 of ...
|
Main themes |
Insult |
Type of humor |
Caricature Cartoon Exaggeration Printed newspaper |
Decision direction |
Expands expression |
Outcome |
Abuse of process. |
Summary |
In 2017 The Malayala Manorama, an Indian daily newspaper, published a cartoon which depicting the Indian flag with Mahatma Ghandhi (the father of the Nation). The number 70 was on the flag to commemorate India’s 70th Independence Day. In the illustration the number 70 and the outline of Gandhi created a black line along the top band. A politician named Biju Kurup filed a criminal complaint against the newspaper alleging that the black line in the cartoon was “purposefully given to dishonour the National Flag” and this was an offence punishable under s.2 of the Prevention of Insults to National Honour Act 1971.
The newspaper stated there was no intention to insult the flag or Mahatma Ghandi. The court concluded that [6] “The art of caricature involves exaggerating and distorting the physical features, personalities, or characteristics of individuals often for humorous, satirical, or critical effect. Caricaturists used various techniques to create visual representations that are both recognizable and distorted, making their subject appear ridiculous, ironical, or thought provoking.” It considered the complaint “a far-fetched imagination of the prosecution” and that the prosecution was an abuse of process of the court.
|
Link to case |
http://indian-flag-552461.pdf |
Link to analysis |
https://globalfreedomofexpression.columbia.edu/cases/varghese-v-state-of-kerala/ |
Title |
Gümüş v. Türkiye |
Date
|
09/07/2024 |
Country |
TÜRK?YE |
Judicial Body |
European Court of Human Rights |
Case number |
44984/19
|
Main themes |
Apology of terrorism |
Type of humor |
Cartoon Dark humor Social media |
Decision direction |
Expands expression |
Outcome |
Violation of Article 10 |
Summary |
The applicant was charged by the Şanlıurfa Public Prosecutor and found guilty of dissemination of propaganda in favour of a terrorist organisation pursuant to Article 7, subsection 2, of Law no. 3713. He was convicted and the pronouncement of the judgment was suspended but he was subjected to a three-year supervision period. This was in relation to content posted on his Facebook page which included, a photograph of a victory sign with the comment “Mr Judge, write this down as well: even if I am handcuffed, I will still say ‘long live President Apo’”; the comment “There is State terror in Gever and Cizre, do not remain silent”; a photograph of the applicant wearing a yellow-red-green wristband and making a victory sign; a cartoon showing a person marked “YPG” (according to the Turkish authorities, a branch of the PKK - Kurdistan Workers’ Party, an illegal armed organisation) facing a tank marked “ISIS” in a town marked “Kobane”; a photograph showing armed women, believed to be members of the PKK, with the comment “Long live the Kobane resistance”; a photograph of an armed person in uniform, believed to be a member of the PKK, with the comment “Kobane is a place of resistance”.
His appeal was dismissed and he complained that his Article 10 right had been breached. The Government argued that these posts glorified and legitimised violent acts which ran counter to the text and spirit of the Convention within the meaning of Article 17 and was therefore inadmissible.
The ECtHR found that there was a violation of Article 10 as the suspension of the pronouncement of his judgment was not prescribed by law as per Article 10 (2).
|
Link to case |
https://hudoc.echr.coe.int/eng#{%22appno%22:[%2244984/19%22]} |
Link to analysis |
|
Title |
Nipun Malhotra v. Sony Pictures Films India Private Limited |
Date
|
08/07/2024 |
Country |
INDIA |
Judicial Body |
Court of Appeal (Civil Division) |
Case number |
Civil Appeal No. 723...
|
Main themes |
Discrimination |
Type of humor |
Film Media Performance Ridicule Satire stereotyping |
Decision direction |
Expands expression |
Outcome |
Appeal dismissed. |
Summary |
In 2023 Sony Pictures released the film Aankh Micholi (meaning “Eye Catching”) in India.
The appellant is a disability campaigner who has arthrogryposis. He objected to the portrayal of people with disabilities within the film, claiming that the film violates the constitutionally protected rights of persons with disabilities; and the provisions of the Cinematograph Act, 1952 and the Rights of Persons with Disabilities Act 2016. Additionally he argued that the Central Board of Film Certification violated its statutory duty to certify films in accordance with the applicable guidelines.
The premise of the film centres around a family attempting to hide their various disabilities whilst they are arranging their daughter’s marriage. The appellant claimed that the film implies having a disability is something which should be kept secret and that the film reinforces stereotypes.
Sony argued that the overall message of the film was one of “overcoming the challenge of disability” and it sought to depict the struggles of people with disabilities and illustrate their agency and skills in a way which is neither derogatory nor stereotypical.
The Court conceded to the decisions of the Central Board of Film Certification as the expert body in this case, which had found the film to comply with the applicable guidelines and the 2016 Act. The Court distinguished between “Disability humour” and “Disabling humour” (see section F of the judgment) stating “not all speech that uses stereotypes commonly employed against persons with disabilities is abhorrent by reason of such use alone. […] [T]he context, intention and the overall message must be considered before such use may be termed as prejudicial, and the protection of free speech lifted”.
Appeal disposed.
|
Link to case |
https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2024/09/Malhotra-Judgment.pdf |
Link to analysis |
https://globalfreedomofexpression.columbia.edu/cases/nipun-malhotra-v-sony-pictures-films-india-private-limited/ |
Title |
National Youth Council of Moldova v. the Republic of Moldova |
Date
|
25/06/2024 |
Country |
MOLDOVA, REPUBLIC OF |
Judicial Body |
European Court of Human Rights |
Case number |
15379/13
|
Main themes |
Discrimination Hate speech Insult Obscenity Unlawful Advertising |
Type of humor |
Advertising Caricature Cartoon Political content Satire stereotyping |
Decision direction |
Expands expression |
Outcome |
Violation of Article 10 |
Summary |
The applicant, the National Youth Council of Moldova (Consiliul Național al Tineretului din Moldova A.O.), is a Moldovan non-governmental organisation (NGO). This NGO joined a coalition of NGOs to raise awareness about a freephone discrimination helpline. The coalition created and displayed posters on advertising panels which featured various cartoons, these included the stereotypical depiction of two men holding hands, a black man, an elderly woman, a pregnant woman, a person in a wheelchair and what was purportedly a Roma couple. The cartoons on the poster were accompanied by text encouraging the communities concerned to call a freephone helpline if they experienced discrimination.
The local authorities banned the posters from display on the grounds that they did not adhere to the basic principles of advertising as laid out in section 7 of Law no. 1227-XIII of 27 June 1997 - arguing that they depicted some social groups in an undignified and humiliating manner. The NGO failed in its action to obtain authorisation to display the poster by court order. The Court of Appeal dismissed the NGO’s action as ill-founded. The applicant NGO appealed against that judgment on points of law. The Supreme Court of Justice dismissed the appeal.
The European Court of Human Rights noted that the NGO’s poster was part of an anti-discrimination campaign to promote the helpline. The central issue was the NGO’s decision to illustrate its poster with cartoons. On that point, the Court reiterated that satire was a form of artistic expression and social commentary which naturally aimed to provoke and agitate, thereby contributing to public debate. The Court concluded that the goal had not been to insult, ridicule or stigmatise vulnerable population groups or to promote hate speech and intolerance.
The poster and cartoons were a way to make people aware of social stereotypes and the discrimination experienced by such groups. The Court observed there were no relevant and sufficient reasons for the interference with the NGO’s right to freedom of expression and such interference could have a chilling effect on satirical forms of expression concerning social issues. The Court held that the interference was not necessary in a democratic society and there had been a violation of the right to freedom of expression.
|
Link to case |
https://hudoc.echr.coe.int/fre-press#{%22itemid%22:[%22003-7981624-11133910%22]} |
Link to analysis |
https://globalfreedomofexpression.columbia.edu/cases/national-youth-council-of-moldova-v-republic-of-moldova/ |
Title |
Oversight Board Case of the Elon Musk Satire |
Date
|
07/06/2024 |
Country |
UNITED STATES |
Judicial Body |
The Oversight Board |
Case number |
2024-014-IG-UA
|
Main themes |
Media Platforms' policy/standards Offence Oversight board |
Type of humor |
Parody Satire |
Decision direction |
Expands expression |
Outcome |
Meta overturned its decision to remove the content after the Oversight Board brought the decision to the company's attention. |
Summary |
An Instagram post containing a satirical depiction of Elon Musk reacting to an offensive fictional X (Twitter) thread was initially removed by Meta for violating its policy on Dangerous Organizations and individuals. The policy prohibits representation and speech about groups Meta judges as linked to significant real world harm - however satirical material on these subjects is allowed. The fictitious thread included the following statements: “KKK never did anything wrong to black people,” “Hitler didn’t hate Jews,” and “LGBT are all pedophiles.” The post featured Elon Musk replying “Looking into this.…”
It was argued by the user that the post was created to “call out and criticize one of the most influential men on the planet for engaging with extremists on his platform" rather than endorsing Hitler or the Klu Klux Klan.
When alerted to the content by the Board, Meta reinstated the content determining that it was incorrectly removed as it did not violate its policy. The Board considers that this case “highlights Meta’s shortcomings in accurately identifying satirical content on its platforms” and “this case illustrates Meta's challenges in interpreting user intent”.
|
Link to case |
https://www.oversightboard.com/decision/ig-jlsbgadz/ |
Link to analysis |
|
Title |
Sokolovskiy v. Russia |
Date
|
04/06/2024 |
Country |
RUSSIAN FEDERATION |
Judicial Body |
European Court of Human Rights |
Case number |
618/18
|
Main themes |
Blasphemy Hate speech Incitement of Extremism Obscenity |
Type of humor |
Parody Sarcasm Satire Social media Streaming service Verbal joke / pun |
Decision direction |
Expands expression |
Outcome |
Violation of Article 10 |
Summary |
Ruslan Sokolovskiy is a popular video blogger convicted of offending religious feelings and inciting hatred in nine videos which he published on YouTube. In one video he was playing Pokémon Go in a church whilst questioning the existence of Jesus and the Prophet Muhammed. Mr. Sokolovskiy argued the videos were a response to the law which prohibited playing the game in places of worship.
It was claimed he made offensive statements in the form of a church hymn and ridiculed the foundations of Christianity. He was arrested and charged for incitement of hatred and public acts aimed to insult the feelings of religious believers. He was sentenced to a suspended term of three and a half years and banned from participating in public events. The Court ordered the videos to be removed from the internet.
Mr. Sokolovskiy appealed the decision, and the Appeal Court upheld the conviction of incitement to hatred and offence of religious feelings but reduced his suspended sentence. Mr. Skolovskiy’s further appeal was rejected by the Supreme Court of Russia on the grounds that the Court did not find the lower instance courts committed material or procedural violations to warrant an appeal. [See The Case of Ruslan Sokolovsky.]
He then applied to the European Court of Human Rights on the grounds that his criminal conviction had infringed his right to freedom of expression. The ECtHR found an absence of relevant and sufficient grounds to justify the interference. Whilst the interference was prescribed by law with the aim of protecting public order and the rights of others it was not necessary in a democratic society.
|
Link to case |
https://hudoc.echr.coe.int/?i=001-233984 |
Link to analysis |
https://strasbourgobservers.com/2024/08/27/sokolovskiy-v-russia-criminal-conviction-for-religious-hate-speech-violated-the-right-to-freedom-of-expression-of-a-blogger/ |
Title |
Pisanski v. Croatia |
Date
|
04/06/2024 |
Country |
CROATIA |
Judicial Body |
European Court of Human Rights |
Case number |
28794/18
|
Main themes |
Contempt of Court |
Type of humor |
Irony Ridicule |
Decision direction |
Expands expression |
Outcome |
Violation of Article 10 |
Summary |
This case concerns the imposition of fine on an advocate for contempt of court for remarks made in the context of appeal proceedings in which he was representing a client. The comments were described as “ironic”. The state argued that his remarks were “harsh, inappropriate, malicious, mocking, disrespectful and derogatory [61]. According to the Government this therefore constituted contempt of court, and he was fined. However, the ECtHR found that the applicant’s remarks did not go beyond bounds of acceptable criticism and that the domestic courts had failed to set his remarks within the context and forum in which they were expressed. They found that the interference with the applicant’s Article 10 rights were not “necessary in a democratic society”.
|
Link to case |
https://hudoc.echr.coe.int/eng?i=001-233985 |
Link to analysis |
|