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A comparative analysis of Global Case Law
Humor
and free speech:
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
ISSN
Humor and Free Speech:
A Comparative Analysis of Global Case Law
JUNE 2023
Credits
Lee C. Bollinger
Catalina Botero-Marino
Collection directors
Alberto Godioli, Associate Professor, University of Groningen, the Netherlands
Jennifer Young, Researcher, University of Groningen, the Netherlands
Authors *
Special thanks and acknowledgements
The Directors, Authors and Editors of the present collection would like to recognize and
express their gratitude to all the people whose efforts and talents made the collection a
reality. These publications were only possible thanks to the analysis and selection of cases
for the database by a wide number of experts and contributors collaborating with Colum-
bia Global Freedom of Expression. The case briefs presented in this collection reproduce
the analysis of the cases published in our database, which was only possible due to their
invaluable contribution.
The Authors of this paper would also like to express their gratitude for the insights and
help provided by several colleagues and collaborators – including in particular Prof. Lau-
ra E. Little (Temple Law School), whose contribution was instrumental in retrieving and
analyzing relevant cases from the United States, as well as Dr. João Paulo Capelotti (To-
masetti Jr. & Xavier Leonardo), Dr. Matteo Fiori (University of Groningen), Dr. Sabine
Jacques (University of East Anglia) and Melissa Luypaers (University of Groningen).
Lastly, the Directors and Authors of this Special Collection Paper would like to extend
their gratitude to the law rm Sullivan & Cromwell LLP for their signicant pro bono work
on case analyses referenced in this paper.
Copyright © 2023 Columbia Global Freedom of Expression. All rights reserved.
Laura Catalina Ortiz, illustrator
Lourdes de Obaldía, layout and graphic designer
Design
* The views and opinions expressed in this paper reect only the position of its authors and do not necessarily reect the position of Colum-
bia Global Freedom of Expression.
Table of Contents
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
5
Table of Contents
I. Introduction and overview
II. Global case law on humor and freedom of expression
II.1 Satire, defamation and other dignitary harms
II.2 Disparaging humor and hate speech
II.3 Humor, violence and public unrest
II.4 Parody, copyright and trademarks
II.5 Humor and “public morals”
III. Conclusion
IV. References
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
6
I. Introduction and Overview
Humor is a pervasive element of human communication and a fundamental ingredient of democratic
life. Throughout history, it has been used as a vehicle to poke at the powerful, engage in socio-political
commentary, or collectively negotiate social boundaries and norms (Kuipers 2009). As a consequence,
courts from all over the world have often stressed the importance of protecting humorous speech, while
also acknowledging its elusive and multi-faceted nature. In linguistics, humor is typically dened as a
form of “non-bona-de communication” – as opposed to straightforward, merely information-conveying
modes of expression –, entirely or partly geared towards mirth or amusement (Attardo 2017). Humorous
communication can adopt different strategies (such as exaggeration, understatement, ironic reversal or
metaphor; see Simpson 2003), combine different forms (from parodic imitation of a previous work to
slapstick comedy), and manifest itself across different media (from verbal jokes to memes and cartoons).
Moreover, humor can serve a broad range of purposes, spanning from mere entertainment to satire (i.e.
using humorous techniques to convey social or political criticism, see Quintero 2007).
The essential role of humor – and satire in particular – in public life is recognized in several landmark
cases from widely different contexts. Within U.S. jurisprudence, the most inuential defense of satirical
discourse is probably the one put forth by the Supreme Court in Hustler v. Falwell (485 U.S. 46, 24 Feb-
ruary 1988), with particular regard to political cartooning: “Despite their sometimes caustic nature, from
the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and
satirical cartoons have played a prominent role in public and political debate. […] From the viewpoint
of history, it is clear that our political discourse would have been considerably poorer without them”
(53-55). Similarly, the European Court of Human Rights (ECtHR) highlighted the importance of satire
in a frequently quoted paragraph of Vereinigung Bildender Künstler v. Austria (No. 8354/01, 25 January
2007): “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 interfer-
ence with the right of an artist – or anyone else – to use this means of expression should be examined
with particular care” (33). Moving from Europe to Africa, this denition is echoed in the important case
Peta v. Minister of Law, Constitutional Affairs and Human Rights (CC 11/2016, 18 May 2018), where
the Constitutional Court of Lesotho ruled that the domestic provisions criminalizing defamation were
unconstitutional: “Satire as a form of artistic expression is protected by section 14 of the Constitution. In
its robust interrogation of the topical issues the press is allowed latitude to employ some measure of ex-
aggeration or provocation. It can rightfully be sarcastic, ironic, humorous and satirical in its commentary.
This can be best illustrated by the case of Vereinigung Bildender Künstler v. Austria” (9).
The idea of satire as a form of “exaggeration and distortion” of reality is further reprised by the Ar-
gentinian Supreme Court in Pando de Mercado v. Gente Grossa SRL (63667/2012/CS1, 22 December
2020), which also draws explicitly on the Hustler ruling: “It should be remembered that satire as a form
of critical discourse is characterized by sharply exaggerating and distorting reality in a mocking way.
[…] This type of literary genre constitutes one of the communication tools for criticism, opinions and
value judgments on public affairs; an instrument of denunciation and social criticism that is expressed
in the form of a ‘hidden’ message behind laughter, jocularity or irony. As the Attorney General rightly
recalls in his opinion, it has a strong tradition in our country” (14-15). A similar point is made by the
Supreme Court of India in Indibility Creative Pvt Ltd v. Govt of West Bengal (Writ Petition (Civil) No.
306, 11 April 2019), stressing that “satire is a literary genre where ‘topical issues’ are ‘held up to scorn by
means of ridicule or irony.’ It is one of the most effective art forms revealing the absurdities, hypocrisies
and contradictions in so much of life. It has the unique ability to quickly and clearly make a point and
facilitate understanding in ways that other forms of communication and expression often do not” (13).
To conclude this brief sampling, an interesting variation is offered by Canada’s Supreme Court in
WIC Radio Ltd. v. Simpson (2 S.C.R. 420, 27 June 2008): “the law must accommodate commentators
such as the satirist or the cartoonist […]. Their function is not so much to advance public debate as it is
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
7
to exercise a democratic right to poke fun at those who huff and puff in the public arena” (48). By devi-
ating from the usual emphasis on satire’s contribution to public interest debates, this remark is actually
more aligned with humanities-based perspectives on this discursive mode – e.g., as argued by literary
scholar Robert Phiddian, the fundamental social function of satire is not really to speak truth to power
or contribute to debates of public interest, but rather to serve as a collective pressure valve by “licensing
public expression of harsh emotions” such as anger, contempt or disgust (Phiddian 2019: iii). This does
not mean, of course, that humorous or satirical expressions of contempt should never be restricted, for
example, when they amount to defamation or incitement to violence, hatred or discrimination; it does
imply, though, that the “public interest” standard is not always the most effective one when examining
humor in court. As pointed out by João Paulo Capelotti: “The concept of public or social interest is broad
enough to encompass humorous speech about a very wide range of issues. However, it is clear—if not
to the general public, then at least to humour scholars—that while humour may have broader purposes
(political, for instance), these are incidental rather than necessary. One principal purpose of humour
is to provoke laughter, and laughter does not always go hand in hand with an issue of social interest”
(Capelotti 2018, 268).
The judicial treatment of different kinds of humorous expression, based on their varying relation to
public interest, will be discussed in detail in this paper. For now, sufce it to mention that, within free
speech jurisprudence, one would be hard-pressed to nd any established tests or soft-law instruments
specically focusing on humor, whether satirical or not. Contested jokes are typically evaluated in light
of general free speech provisions existing on a domestic level, following international standards such as
those laid out by Article 19 of the Universal Declaration of Human Rights and its regional counterparts
in the European Convention on Human Rights (Article 10), the American Convention on Human Rights
(Art. 13) and the African Charter on Human and Peoples’ Rights (Art. 9). Notably, as stressed by the
ECtHR, freedom of expression – including humor and satire – should apply “not only to ‘information’
or ‘ideas’ that are favourably 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” (Handyside v. United
Kingdom, No. 5493/72, 7 December 1976, 49). The same concept was reiterated by the Inter-American
Court of Human Rights in Kimel v. Argentina: “[i]n the arena of debate on issues of high public interest,
not only is the issuance of expressions that are inoffensive or well received by public opinion protected,
but also that of those that shock, irritate or disturb public ofcials or any sector of the population” (Series
C No. 177, 2 May 2008, 88).
On a more informal level, however, it is possible to detect international trends specical-
ly concerning humorous expression, based on the particular issues evoked by the disputed jokes.
To this end, our paper will discuss a corpus of 81 cases from across the globe, organized around
ve key – and sometimes intersecting – themes: (1) Satire, defamation and other individual digni-
tary harms; (2) Disparaging humor and hate speech; (3) Humor, violence and public unrest; (4) Par-
ody, copyright and trademarks; (5) Humor and “public morals.” The corpus was assembled, rst,
by means of combined keyword searches through the Columbia Global Freedom of Expression
(GFoE) database. More cases were subsequently added by cross-checking the results with the data-
base of ForHum: Forum for Humor and the Law (an international platform created by Alberto Go-
dioli and Laura Little in 2022), and in consultation with several members of the ForHum network.
Drawing on the “Decision Direction” paragraph featured in the GFoE database, each of the ve
central sections (or each sub-theme within a section) indicatively starts by discussing judgments which
expand freedom of expression, and then moves on to relevant cases where expression is contracted. In
addition to the information and comments provided in the GFoE database, our analyses also rely on
insights from interdisciplinary scholarship on humor and freedom of expression (see in particular Adri-
aensen, Bricker, Godioli and Laros 2022; Godioli, Young and Fiori 2022; Jacques 2019; Little 2019;
Milner Davis and Roach Anleu 2018; Todd 2016 and Capelotti 2016). This growing body of scholarly
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
8
work illustrates how a closer dialogue with humanities-based humor research might assist courts when
addressing some of the issues posed by the elusiveness and subjectivity of humor, as well as possibly
setting the basis for a more consistent approach to humorous expression in free speech jurisprudence. We
hope that the present Special Collection paper can constitute a further step in this direction, while also
serving as a useful tool for judges, lawyers, academics and other key actors by providing comparative
material for judicial practice and future discussions of humor-related case law.
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
9
II. Global case law on humor and freedom of expression
II.1 Satire, defamation, and other dignitary harms
In democratic states there is a hierarchy of protection afforded to different types of expression (Row-
bottom 2012). At the top of this hierarchy is political expression and speech which enhances debate around
areas in the public interest. In this hierarchy of protected speech, artistic expression is also provided with
a high level of protection from state interference but not always as high as it warrants (Djajić and Lazić
2021). In cases of humor, the genre of satire, especially political satire, should therefore be robustly protect-
ed by the courts recognising its importance both as a form of political critique and artistic expression. Such
humorous expressions may target public gures, and political gures in particular. Due to the high level of
protection afforded to political expression in an artistic form, in general these public gures are afforded a
lower level of protection, regarding their rights to reputation, privacy and dignity, than a “private” person.
In this section we consider court cases which involve the laws on defamation and other types of individual
dignitary harm. First, we shall discuss cases in which the humorous expression targets a political gure,
public ofcial or public institution, and freedom of expression is expanded. We will then consider cases in
which expression is restricted. Finally we turn to cases which concern humor targeting other kinds of public
gures (such as artists and celebrities), or people who would not generally be in the public eye.
With regard to contentious jokes concerning a political gure, one of the most (in)famous cases in
the United States is Hustler v. Falwell (485 U.S. 46, 24 February 1988). The Reverend Jerry Falwell, a
high-prole televangelist and political commentator, sued the Hustler magazine for libel, invasion of pri-
vacy, and intentional iniction of emotional distress after it published a parody Campari advertisement
featuring Falwell. He was depicted explaining how his rst sexual experience took place with his mother
in an outhouse. The ad was listed in the magazine as “Fiction; Ad and Personality Parody.” Initially Fal-
well lost on his privacy and defamation claims, but won damages for the tort of intentional iniction of
emotional distress. This was upheld by the appellate court, but Hustler’s publisher appealed. The Supreme
Court reversed the Court of Appeals, on the grounds that the First and Fourteenth Amendments prohibited
a public gure from recovering damages for intentional iniction of emotional distress, without showing in
addition that the publication contained a false statement of fact made with actual malice (the latter concept
being dened as knowledge of falsity or reckless disregard for whether a statement is true). By stressing
that the parody in the case could not have reasonably been interpreted as asserting “actual facts about [Fal-
well] or actual events in which he participated,” the Court convincingly relied on humorous incongruity
as a criterion to shield the contested expression from liability (see Little 2011 on the role of incongruity in
defamation cases).
If we turn to the European Court of Human Rights, this hierarchy of protection is reected in the key
case of Lingens v. Austria (No. 9815/82, 8 July 1986) – which, whilst not a humor case, established the
protections afforded to the speaker where the targets are high prole, especially political. Like Hustler, Lin-
gens emphasizes the important differences between factual statements and value judgements, thus building
a solid defense used in later ECtHR cases regarding political satire. One example is the landmark judgment
Vereinigung Bildender Künstler v. Austria (No. 68354/01, 25 January 2007) which qualies satire as both
“artistic expression and social commentary” and stresses that “any interference with an artist’s right to such
expression must be examined with particular care” (33). This case involved a painting of several public g-
ures, portrayed as naked and in sexual positions. The subjects included the former general secretary of the
Austrian Freedom Party Mr. Meischberger, alongside a Cardinal, and Mother Theresa. An injunction was
issued in the context of judicial proceedings brought by Meischberger against the applicant’s association,
prohibiting the further display of the painting. However, the ECtHR considered that as a political gure
Meischberger should have a higher tolerance of criticism, and the artistic and satirical nature of the work
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
10
should have been taken into account at national level. The ECtHR decided the injunction violated the ap-
plicants’ rights to freedom of expression, under Article 10 of the European Convention on Human Rights
(ECHR).
Similarly, Telo de Abreu v. Portugal (No. 42713/15, 7 June 2021) focused on a series of cartoons de-
picting local politicians as animals. In particular, a female municipal councilor was portrayed as a be-stock-
inged sow with blonde hair and bare breasts surrounded by naked pigs. The blogger who had published the
cartoons was found guilty of aggravated defamation by the Elvas District Court and sentenced to pay a ne
as well as damages for the moral prejudice he had caused the municipal councilor. After the ne was upheld
by the Court of Appeal, the blogger took his case to the ECtHR, which found that his right to freedom of
expression had been violated. The ECtHR concluded the national courts did not consider the context of
the cartoons or the Court’s case-law on political satire. It also highlighted that criminal prosecutions for
defamation of politicians are particularly damaging due to the chilling effect on political expression. Whilst
acknowledging the importance of the satirical context, Judge Motoc’s concurring opinion emphasized the
harm that “symbolic violence” – such as sexist stereotyping – can do to women working in politics (see
Balzaretti 2022 for further discussion). As detailed in the next section, a later ECtHR decision (Canal 8 v.
France) highlights the Court’s lower level of protection towards “symbolic violence” against women, when
the expression is not deemed to contribute to debates in the public interest.
Other ECtHR cases further illustrate how a satirical context can help speech protection. For instance,
in Alves Da Silva v. Portugal (No. 41665/07, 20 Oct 2009), the ECtHR recognised that the combination of
satire and a carnival setting meant that the applicant’s conduct – driving in a van displaying a puppet and
broadcasting a message implicating the mayor in unlawful nancial dealings – was not to be taken as a se-
rious attack on the mayor’s reputation. Similarly, in Ziembinski v. Poland (no 2) (No. 1799/07, 5 July 2016)
the ECtHR decided that the domestic courts had given insufcient weight to the satirical nature of an article
published in a local newspaper, which mocked the credibility of a mayor’s plans to solve rural unemploy-
ment (although the two dissenting judges were critical, stressing how the severity of the disputed insults
can get lost in translation). Instytut Ekonomichnykh Reform TOV v. Ukraine (No. 61561/08, 2 June 2016)
concerned defamation proceedings brought by a member of parliament, regarding an article alleging he had
taken bribes and received housing from the government. The ECtHR found that the article was political sat-
ire discussing a matter of public interest, which should have been given protection by the domestic courts.
Likewise in Eon v. France (No. 26118/10, 14 March 2013) the applicant held a placard reading “Casse toi
pov’con” [Get lost you sad prick] targeting the President of France during an ofcial visit in 2008. The
ECtHR considered that the phrase (which repeated an insult uttered by the President himself on a previous
public appearance) was a legitimate form of satirical criticism, and therefore the conviction violated Eon’s
rights as it had not targeted the President’s private life or honor.
Another president was targeted in Dickinson v. Turkey (No. 25200/11, 2 Feb 2021). Dickinson was a
university teacher and artist working in Turkey who made a collage of President Recep Tayyip Erdoğan’s
head on the body of a dog to criticize the President’s political support for the occupation of Iraq. He was
detained pre-trial for three days before being convicted for the offense of insult and ned. In line with
its general stance on political satire, the ECtHR found a violation of Article 10. Mac TV v. Slovakia (No.
13466/12, 28 Nov 2017), instead, concerns sarcastic and ironic television commentary about the death of
Poland’s President Lech Kaczynski in a plane crash (“I am sorry, but I do not pity the Poles. I envy them”).
Mac TV was ned 5,000 euro, but the ECtHR found this sanction violated the broadcaster’s rights as the
commentary did not constitute an unlawful personal attack on the late President’s dignity.
Leaving the supranational ECtHR but turning to another politician, Zachia v. Center of Professors of
the State of Rio Grande do Sul (Supreme Court of Brazil, 719.618, 7 November 2012) features a Brazilian
politician’s claim for injury to his honor after protesters displayed a dummy of him and called for his ar-
rest for alleged misconduct. The Supreme Court dismissed his appeal as the protest was an issue of public
interest and, reecting ECtHR jurisprudence, decided that as a public gure Zachia should have a greater
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
11
tolerance for criticism. Similarly in Argentina, political critique through satire is given a high level of
protection as seen in Pando de Mercado v. Gente Grossa SRL (63667/2012/CS1, 22 December 2020). The
Supreme Court of Argentina concluded that María Cecilia Pando de Mercado (the wife of an ofcer who
had been convicted for crimes against humanity) did not have her right to honor violated following the pub-
lication in a magazine of a photomontage of her head on a naked woman’s body. Pando de Mercado was a
controversial political gure in her own right, who had organized several protests and often appeared in the
media to defend military ofcers who had committed human rights violations during the last military dic-
tatorship in Argentina. Comparably to the ECtHR in Telo de Abreu, the Court held that the disputed image
did not constitute “gender-based violence” (24), but was rather an instance of political criticism in the form
of satire, protected under the Argentinian constitutional right to freedom of expression. The decision refer-
ences regional and international standards, including Articles 11 and 13.2.a of the American Convention on
Human Rights, Articles 17 and 19.3.a of the International Covenant on Civil and Political Rights, Articles
V and XXIX of the American Declaration of the Rights and Duties of Man, and Article 12 of the Universal
Declaration of Human Rights. International treaties have been part of the Argentine constitutional hierarchy
since the 1994 constitutional reform
In Attorney General v. Clarke (2008 ZR 38, 24 Jan 2008), a British journalist in Zambia – who had
likened the Government to animals in a satirical article – had his deportation order nullied when the Su-
preme Court of Zambia ruled it disproportionate. However, the Court did not accept that the article was
protected by freedom of expression under the Constitution. Another African case, Peta v. Minister of Law,
Constitutional Affairs and Human Rights (Constitutional Court of Lesotho, CC 11/2016, 18 May 2018),
concerns a satirical article about the then-Commander of the Defence Force having excessive inuence
over the government. In its judgment, the Constitutional Court highlighted the importance of freedom of
expression, including freedom of the press and satire, holding that sections of the Penal Code created a
“chilling effect” on freedom of expression and concluding criminal defamation was “not reasonable and
demonstrably justiable in a free and democratic society.” The Court stated that criminal defamation should
be struck down, referring to Lingens and ECtHR jurisprudence on satirical content. Similarly, in Mansour
v. Al-Youm Al-Sabea Website (Court of Administrative Judiciary, Chamber of Economical and Investment
Disputes, No. 73228, Judicial year 67, 15 February 2014) an Egyptian politician brought an application to
suspend a website’s media license after it published satirical articles about him. However, the Court under-
lined that prior restraint and disproportionate sanctions should not be used to limit press freedoms. Doing
so would violate Egypt’s constitutional prohibition of media censorship.
Yet, as already suggested by the mixed outcome of Attorney General v. Clarke, not all cases follow this
pattern, and expression which targets politicians is not always considered to be in the public interest. In the
following cases, the courts considered that other factors outweighed freedom of expression. A high-prole
Australian case concerned rightwing populist politician Pauline Hanson, who had been targeted by comedi-
an Simon Hunt. In his parody song “Backdoor Man,” performed under his drag queen name Pauline Pants-
down, Hunt sampled the politician’s voice and mixed her words, so it appeared she was singing about being
a proud homosexual man and a prostitute, involved in unnatural sexual practices and associated with the
Ku Klux Klan. Hanson brought her case against the Australian broadcaster (ABC). In Hanson v. Australian
Broadcasting Corporation (HC B40/1998, 24 July 1999), the High Court of Australia denied ABC leave to
appeal, after the Court of Appeal had granted an interlocutory injunction stopping the song being played.
Using the test of “an ordinary, sensible listener, not avid for scandal,” the Court of Appeal had decided that
the song was “patently defamatory.” By imposing and upholding the injunction, the Australian courts did
not seem to pay adequate attention to the humorous nature of the content, which could be usefully compared
to Hustler and VBK in its use of “carnivalesque reversal” – namely a type of satirical profanation which
typically does not aim to defame specic individuals, but to “criticize or relativize a hegemonic ideology
or power structure” (Godioli and Little 2022; see also Davis and Handsley 2001 for a critical assessment
of this judgment).
Moving back to Europe, in McAlpine v. Bercow (High Court of England and Wales, [2013] EWHC
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
12
1342, 24 May 2013), Sally Bercow – a high prole public gure and wife to the then-Speaker of the House
of Commons – had tweeted “Why is Lord McAlpine trending? *Innocent face*.” This was in connection
with serious allegations of child sexual abuse which had been levied against an unnamed politician. It was
decided that the meanings of words for the purposes of defamation are of two kinds, a natural and ordinary
meaning and an innuendo meaning. The Court found that the words were defamatory, given that the expres-
sion “*innocent face*” would imply that the question was “insincere and ironical” (84). It should be noted
that the victim of abuse had made a mistake in identifying his abuser and it was not Lord McAlpine.
In Germany, an archaic law dating from 1871 was evoked in another case involving Turkey’s President
Erdoğan. Erdoğan v. Böhmermann (Higher Regional Court of Hamburg, 7 U 34/17, 15 May 2018) concerns
the comedian Jan Böhmermann who performed a satirical poem on his television show. In yet another (par-
ticularly extreme) example of carnivalesque reversal, the poem associated Erdoğan with sexual deviancy,
including bestiality, and viewing images of child abuse. Erdoğan brought a charge for insult against Böh-
mermann, employing a rarely used provision prohibiting the insult of foreign heads of state (Section 103 of
the German Criminal Code). This required consent from the German Government to prosecute and whilst
permission was given, the Government stated the relevant law would be repealed following Erdoğan’s
action. Böhmermann argued that the work was protected by freedom of artistic expression, and the poem’s
purpose was to demonstrate the limits of permissible satire whilst informing the viewer about the scope of
freedom of satire in Germany and Turkey. The Hamburg Higher Regional Court widely conrmed the lower
court ndings that the verses contained gratuitously insulting material, which was not protected by the right
to artistic freedom or freedom of expression. In addition, the poem unlawfully relied on disparaging and
insulting stereotypes targeting Turkish people and Muslims especially. On 26 January 2022, the German
Federal Constitutional Court refused to accept a constitutional complaint by Jan Böhmermann relating
to the poem. Commentators have stressed how Section 103 does not align with international standards
concerning freedom of expression (Thienel 2017); however, the fact that the law has now been repealed
might give a greater freedom to satirical speech in Germany, at least in the specic case in which foreign
heads of state are targeted. Staying with Erdoğan but moving from Germany to Turkey, the case of Merve
Buyuksarac (Istanbul Court of First Instance, 31 May 2016) was brought against the former Miss Turkey.
She shared a satirical adaptation of the Turkish national anthem referring to a high-level corruption scandal
involving Erdoğan’s family, but without mentioning his name. She was given a custodial sentence, which
was suspended on condition that she would not reoffend for the next ve years.
The database also features more instances of authoritarian countries penalizing citizens for ridicul-
ing the government. In Myanmar a case was brought against Chaw Sandi Htun, a member of the Na-
tional League for Democracy (Maubin Township Court, 28 December 2015). After posting a satirical
photo collage on Facebook depicting a male soldier in women’s clothing, she was charged with defa-
mation and breaching Myanmar’s broad Telecommunications Law, which is punishable by a max-
imum of three years imprisonment and/or ne. While the defamation charges were dropped, Chaw
Sandi Htun was still sentenced to six months in prison under Section 66(d) of the Telecommunica-
tions Law. Thailand’s defamation laws protecting their Royal Family are also very restrictive, as illus-
trated by Thailand v. Thanet Nonthakot (Criminal Court of Bangkok, 25 June 2015), where the defen-
dant was arrested for lèse majesté and sentenced to three years and four months in jail. He had sent an
email with a link to satirical stories about the Thai Royal Family to a British national who ran the blog
“Stop Lèse Majesté” (for a critical discussion of Thailand’s lèse majesté law, see NuDelman 2018).
Moving from politics to other kinds of public gures, the case of Camargo v. Bastos (Superior Court of
Justice, 1.487.089/SP, 23 June 2015) was brought in Brazil by singer-songwriter Wanessa Godoi Camargo
Buaiz. When her pregnancy was announced on a satirical comedy show, the host commented “I would eat
her and her baby” (with the verb “eat” being used as a clear sexual innuendo). The Court found that the
dignity of the singer and her family was harmed and issued a nancial sanction of BRL 150,000 (equivalent
to approximately 30,000 USD). According to Capelotti (2022, 293-304 and 2018, 258-266), while the joke
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
13
is arguably vulgar and in bad taste, the Camargo decision is problematic in its overly literal interpretation of
the joke (neglecting the comedic context in which it was uttered), and in its use of subjective criteria – such
as taste and offensiveness – to determine the limits of protected expression.
A different outcome was reached in another high-prole case involving a celebrity, namely John v.
Guardian News and Media Ltd (High Court of England and Wales, [2008] EWHC 3066 (QB), 12 December
2008), which was hailed as a “victory for irony” by the British press (Ponsford 2008). The singer Sir Elton
John sued the newspaper The Guardian for libel after it published an article in its “Weekend” supplement in
July 2008. The article was titled “A Peek at the Diary of Sir Elton John” and was a parody diary entry written
as if penned by John himself. At the end of the article were the words “as seen by Marina Hyde” (a satirical
columnist at the Guardian). The entries rst satirized John’s appearance at Nelson Mandela’s birthday party,
describing the occasion as specially organized to provide white celebrities with a chance to be photographed
cuddling him. Next, the article lampooned a charity event organized by John and attended by high prole
celebrities to raise funds for his AIDS foundation. John sued for libel on the grounds that the article suggested
his commitment to his charity was insincere, and that he dishonestly claimed all the money raised actually
went to the charity. In striking out John’s claim for damages, the Judge placed particular emphasis on the
context of publication, stressing that the article appeared in the “Weekend” section of the newspaper; if such
a serious allegation were being made, a reasonable reader would expect it to be done without humor, and in
the main news section. While agreeing with the outcome on a “pragmatic” level, literary scholar Peter Mc-
Donald (2016) criticized the judgment for its insufcient attention to the context of the online version of the
article, and for bypassing the difculties posed by the notion of the reasonable reader: “[Judge Tugendhat]
focussed on the ‘reasonable reader’ of the Saturday Guardian rather than reasonable readers in general,”
which might have “particularly fraught implications in contemporary inter- or multicultural societies” (187).
The challenges inherent to the reasonableness test will be further discussed (with special regard to
humor) in the Conclusion of this paper. Similarly to John v. Guardian News and Media Ltd, however, the
ECtHR also relied on the reasonable reader in another defamation case brought by a celebrity – namely
Nikowitz and Verlagsgruppe News GMBH v. Austria (No. 5266/03, 22 February 2007), concerning a satir-
ical newspaper article about the reaction of Austrians and the media to skiing champion Hermann Maier
breaking his leg. Rival skier Stefan Eberharter initiated a private prosecution for defamation, arguing that
the fake commentary attributed to him (“Great, now I’ll win something at last. Hopefully the rotten dog will
slip over on his crutches and break his other leg too”) suggested he was overly competitive and disdainful.
The ECtHR believed the majority of the newspaper’s readership would recognize the humorous tone of the
article, and found Austria in breach of its obligation to protect freedom of expression. As acknowledged in a
third party intervention within the later ECtHR case of Sousa Goucha v. Portugal (No. 70434/12, 22 March
2016), in Nikowitz the Court “cemented its case-law employing the standard of a reasonable reader when
approaching satirical material, refusing to interfere with freedom of expression for the sake of protecting
the reputation of others as relates to unfocussed readership” (37).
In Sousa Goucha, the applicant was an openly gay TV host, who lodged a criminal complaint for
defamation and insult after he was described in a television comedy show as “The best Portuguese female
TV host.” He alleged his reputation and dignity had been damaged, and that his complaint had been dis-
missed in the national courts because of discrimination based on his homosexuality. For the purposes of
our analysis, the main issue was whether the State had achieved a fair balance between the applicant’s right
to protection of his reputation (Article 8) and the media’s right to freedom of expression (Article 10). The
ECtHR unanimously found no violation of Article 8, considering several elements including the way in
which a “reasonable spectator” of the show in question would have perceived the impugned joke (55). In
light of “the playful and irreverent style of the television comedy show and its usual humour,” the Court
agreed with the domestic authorities that “the defendants had not intended to criticise the applicant’s sexual
orientation” (53-54). Borrowing the terminology proposed by humor scholar Marta Dynel (2021), it can be
argued that both the domestic courts and the ECtHR interpreted the contested remark as a “jocular insult”
(orientated towards collective humor experience) rather than a “genuine insult” (geared towards offending
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
14
– and potentially harming – the target). As argued by Tomlinson (2016), the judgment’s outcome was “un-
surprising,” although the Court’s reasoning would have benetted from also considering the disputed joke
from the perspective of homophobic hate speech (see Section II.2).
On a general note, courts usually – and understandably – adopt a more restrictive approach when
private gures are targeted, as illustrated by Le Roux v. Dey (Constitutional Court of South Africa, CCT
45/10, 8 March 2011). This case concerned a crude photoshopped picture of Head of School Dr. Dey, who
was depicted in a sexually suggestive pose with the male school principal. After it was circulated by for-
mer pupils, Dey sued for defamation and the trial court found in his favor, imposing a nancial sanction
of R45,000 (approximately 2,300 USD) which was subsequently upheld by the Supreme Court of Appeal.
The Constitutional Court agreed with the lower courts’ decision, despite reducing the ne from R45,000 to
R25,000. The Court rejected the notion that a joke, caricature, or cartoon can never be defamatory, holding
that all three could be if they damaged the subject’s reputation, undermined his authority, and caused him to
be the object of contempt. On the other hand, satirical distortion targeting private gures is also protected
in other cases, when the degree of humorous incongruity is evident enough to avert a defamatory interpre-
tation of the contested expression – see for example the U.S. case Hamilton v. Prewett (Court of Appeals
of Indiana, No. 14A01-0601-CV-32, 6 February 2007), concerning a married couple who set up a parody
website about a ctional man with a very similar last name and same occupation as the plaintiff (“Paul
Hamilten-The World’s Smartest Man”). The court held it was clearly a parody, and that “defamation is, by
its nature, mutually exclusive of parody.”
Lastly, a satirical cartoon portraying non-public gures is at the center of a 12-5 split decision by the
Grand Chamber of the ECtHR, namely Palomo Sánchez and Others v. Spain (Nos. 28955/06, 28957/06,
28959/06, and 28964/06, 12 September 2011). The applicants were trade-union members, who had been
dismissed by their employer after publishing two articles and a cartoon in a newsletter which depicted
the Human Resources manager being sexually gratied by two recognizable employees. This was meant
as a satirical criticism of said employees, who had spoken in defense of the company during proceedings
brought by the applicants’ trade union. The Court held, by twelve votes to ve, that there had been no
violation of Article 10 of the Convention (freedom of expression) read in light of Article 11 (freedom of
association). The majority found that the applicants’ dismissal was not disproportionate, as the cartoon
and the article had overstepped the limits of criticism admissible in labor relations and caused damage to
the reputation of the applicants’ colleagues by using grossly insulting or offensive expressions. Such an
attack on the respectability of individuals in the professional environment was deemed a particularly seri-
ous form of misconduct capable of justifying harsh sanctions. As argued by Godioli and Little (2022), the
majority’s assessment of the reputational harm caused by the cartoon does not seem to fully acknowledge
the metaphoric nature of the contested drawing, which can hardly be seen as a defamatory allegation on the
employees’ private lives. This point was also stressed by Judges Tulkens, Björgvinsson, Jočienė, Popović
and Vučinić in their dissenting opinion: “As regards the cartoon on the newsletter’s cover, it is a caricature,
which, while being vulgar and tasteless in nature, should be taken for what it is – a satirical representation.
[...] The harsh criticism did not relate to the intimacy of the individuals or to other rights pertaining to their
private lives. It was directed exclusively at the role of certain colleagues in the industrial dispute” (Dissent-
ing, 11-12). As mentioned by the dissenting judges, “in other cases the Court has recognised the satirical
nature of an expression, publication or caricature”; however, the Palomo Sánchez decision suggests that the
ECtHR might be less sensitive to the metaphorical or non-literal quality of satire when the target is not a
public gure, especially in the context of labor relations.
II.2 Disparaging Humor and Hate Speech
Whilst there is no shared denition of hate speech (Mchangama and Alkiviadou 2021), for the purposes
of this paper we will use this term to designate any form of expression that is deemed – by a given court
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
15
or recipient – to incite to hatred or discrimination based on protected characteristics such as race, ethnicity,
religion, disability, gender, or sexual orientation. As outlined in the United Nations’ Rabat Plan of Action,
this may include “(a) forms of expression that should constitute a criminal offence; (b) forms of expression
that are not criminally punishable, but may justify a civil suit; and (c) forms of expression that do not give
rise to criminal or civil sanctions, but still raise concerns in terms of tolerance, civility and respect for the
convictions of others” (Art. 12). This working denition serves as a common thread underlying all the cases
discussed in the present section, regardless of varying approaches – from speech-protective to restrictive
– across different national and supranational systems. In this last respect, legal scholarship has long estab-
lished an indicative opposition between the United States’ liberal approach on the one hand (whereby hate
speech tends to be protected as free speech), and more restrictive approaches on the other – with Europe
standing out as a “centre of gravity” for liberal democracies adopting various forms of hate speech provi-
sions (Heinze 2016, 181), whose compatibility with the standards of the European Convention of Human
Rights is ensured by the ECtHR.
With this in mind, it is not particularly surprising that the intersection of disparaging humor and hate
speech is relatively underrepresented in U.S. jurisprudence. A signicant exception is The Koala v. Khosla
(17-55380, 24 July 2019), where the Court of Appeals for the ninth circuit found that a student newspaper’s
First Amendment rights were violated when its funding was revoked by the University of California, San
Diego (UCSD), allegedly in retaliation for a satirical article it published. The article, which was published
in 2015, satirized “safe spaces” and trigger warnings on U.S. campuses, and caused several complaints and
an ofcial condemnation by the University due to its employment of derogatory stereotypes and racial epi-
thets. The Court of Appeals argued that the disputed text “was clearly protected speech,” without providing
a more detailed analysis of the potentially disparaging aspects of the article. As will be shown below, this
approach differs from the closer scrutiny usually imposed on purportedly discriminatory jokes in other
judicial systems.
Even in the specic case of trademark registration (see also Section II.4), First Amendment protection
for derogatory language is reinstated in Matal v. Tam (582 U.S. ____, 19 June 2017), where the U.S. Su-
preme Court ruled that a provision in 15 U.S.C. § 1052(a) of the Lanham Act – denying registration for
trademarks that “may disparage any persons” – was unconstitutional under the First Amendment. The U.S.
Patent and Trademark Ofce (PTO) had refused to register the name of an Asian-American rock band (‘The
Slants’) as a trademark. The Trademark Trial and Appeal Board (Board) afrmed the PTO’s decision on
grounds that the name constituted “a highly disparaging reference to people of Asian descent,” although the
applicant (Simon Shiao Tam) submitted that the band had chosen this moniker precisely to reclaim and take
ownership of a racial epithet, using “wry humor to make it a badge of pride” (Kennedy, J., Conc. Opinion,
3). Tam then took the case to federal court, where an en banc Federal Circuit ultimately found the Lanham
Act disparagement clause constituted viewpoint discrimination and was therefore facially unconstitutional.
This decision was eventually upheld by the Supreme Court.
In brief, both the Koala and Matal cases epitomize the United States’ high threshold of tolerance to-
wards disparaging expression under First Amendment law. That being said, in some cases European courts
also seem reluctant to restrict derogatory speech when it is presented in a humorous form. The ECtHR
case of Sousa Goucha v. Portugal is a tting example, although (as discussed in the previous Section) the
contested joke was not examined by the Court from the perspective of homophobic hate speech. In Telo de
Abreu v. Portugal, instead, Judge Motoc’s concurring opinion explicitly stigmatized the use of “despicable
stereotypes concerning women in power” in the disputed cartoons and stressed the importance of recogniz-
ing the harm caused by “symbolic violence” against women. However, as detailed in Section II.1, the Court
found that the cartoons – when placed in their original context – amounted to a legitimate form of satirical
criticism. A similar approach to the use of disparaging stereotypes in political satire can also be found in
national case law from Europe, as shown by the French case regarding a Charlie Hebdo cartoon employing
ableist tropes (Court of Cassation, 18-80.405, 19 February 2019). In October 2015, the French satirical
magazine had published a cartoon depicting rightwing politician Nadine Morano as the “hidden Down
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16
syndrome daughter” of General De Gaulle, arguably relying on a stereotypical and grotesque representation
of children with Down syndrome. The association Collective Against Handiphobia led criminal charges
against Charlie Hebdo on grounds of “public insult [injure publique] towards a person or a group of people
because of their gender, their sexual orientation or their disability and provoking hatred or violence against
a person or a group of people because of their gender, sexual orientation or disability.” However, the Court
of Cassation concluded that “while it is regrettable that the incriminated drawing could have shocked and
bruised people with Trisomy 21 [...], this drawing and its title do not target people with this disability, [...]
and the impugned publication does not contain any precise incitement to adopt a behavior of rejection with
regard to people with Trisomy 21 on account of their handicap.”
On the topic of ableist humor, but moving to a different region, a similar outcome was reached by
the Supreme Court of Canada in Ward v. Quebec (2021 SCC 43, 29 October 2021), concerning several
jokes by professional comedian Mike Ward targeting Jérémy Gabriel – a young man with Treacher Collins
Syndrome (a genetic condition which causes facial deformities and often hearing loss), who had become
famous by singing for well-known public gures. In a series of video clips posted in 2007 (when Gabriel
was 10 years old), Ward repeatedly mocked Gabriel’s disability by impersonating him and uttering state-
ments such as “I’m stuck with this little speaker on my head” and “a mouth that won’t shut” (122). Years
later, in his show Mike Ward’s eXpose, the comedian mocked several prominent people who he referred to
as “sacred cows” that could not be made fun of for various reasons. The only disabled person mocked in
the show was Gabriel, who was between 13 and 16 years old at the time. Ward made the following remarks
about him: “Five years later… he’s still not dead! [...] I saw him with his mother at a Club Piscine. I tried
to drown him… couldn’t do it, couldn’t do it, he’s unkillable. I went online to see what his illness was.
You know what’s wrong with him? He’s ugly!” (123). Gabriel’s parents initially led a complaint with the
Commission des droits de la personne et des droits de la jeunesse (CDPDJ) for discrimination. The CDPDJ
took Mr. Ward to the Quebec Human Rights Tribunal, which found Ward had infringed Gabriel’s right to
dignity because of his disability. After an unsuccessful appeal at the Quebec Court of Appeal, Ward further
appealed that decision to the Supreme Court of Canada, “arguing that the Tribunal and the majority of the
Court of Appeal erred [...] and that the elements of discrimination cannot be examined in isolation without
considering freedom of expression, which limits the right to the safeguard of dignity” (31). The Supreme
Court found that a “reasonable person” would not view the comments about Gabriel as inciting others to
detest or vilify his humanity, or as likely to lead to discriminatory treatment of Gabriel. As a result, the
majority concluded that the comments, “exploited, rightly or wrongly, a feeling of discomfort in order to
entertain, but they did little more than that” (112). This decision had a signicant impact for ongoing and
future applications with the CDPDJ, as it determined that – in order to be the subject of a complaint to the
Commission – discriminatory comments must also result in discriminatory treatment or clearly lead to in-
cite others to discriminate on similar grounds.
Regardless of what one might think of the nal outcome, some aspects of the Supreme Court’s reason-
ing could have been further problematized, as pointed out by Judges Abella and Kasirer in their dissenting
opinion. In particular: 1) The claim that “Mr. Gabriel had been targeted by Mr. Ward’s comments because
of his fame and not because of his disability” (100) seems to rely on a false dichotomy, as the comedian
actually “targeted aspects of Mr. Gabriel’s public personality which were inextricable from his disability”
(Dissenting, 148); 2) The idea that Ward’s comments “were not likely to have a spillover effect” in terms
of further discrimination (112) is undermined by the fact that the comedian’s joke inspired severe bullying
and mocking on the part of Gabriel’s classmates, which resulted in Gabriel developing suicidal thoughts
(Dissenting, 193); 3) The “reasonable person” standard adopted by the majority seems overly abstract, con-
sidering that “childhood and early adolescence is a formative stage of life during which time an individual’s
desire to belong can of course be deeply felt,” and “a reasonable young person in Jérémy Gabriel’s shoes
would be particularly susceptible to the harms associated with dehumanizing comments” (Dissenting, 174);
4) Lastly, the majority’s notion that Gabriel was not discriminated against because he was treated by Ward
like any other celebrity “reects a discredited conception of discrimination,” as “uniform treatment which
fails to accommodate differences may constitute a prohibited distinction” (Dissenting, 149). Incidentally,
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17
this last reection also ties in with the notion of equaliberty proposed by French philosopher Étienne Bali-
bar (2014) – meaning that debates concerning free speech should take into account the fact that the public
arena is not a level playing eld, and therefore true freedom of expression cannot be conceived of separately
from social equality. In addition to the critical points raised by the dissenting judges, and with particular
regard to the humorous nature of Ward’s comments, it is worth noting that the Court’s majority appears to
rely on the questionable assumption that humor and discriminatory harm tend to be mutually exclusive:
“Expression that attacks or ridicules people [...] generally does not encourage the denial of their humanity
or their marginalization in the eyes of the majority. [...] Humour, whether in good or in bad taste, rarely has
‘the spillover effect needed to give rise to an attitude of hatred and discrimination among third parties’ (Ra-
inville, at p. 68)” (88-89). In recent years, critical humor scholars have actually provided ample historical
and empirical evidence regarding the substantial role that disparaging humor often plays in inciting hatred
and discrimination (see Pérez 2022, Topinka 2018 and Ford 2015 among others).
Expanding our comparative scope to Australia, another divisive case eventually resulting in the protec-
tion of potentially disparaging humor is Bropho v. Human Rights and Equal Opportunity Commission and
West Australian Newspapers Ltd (FCAFC 16, 6 February 2004). In its decision, the Federal Court of Aus-
tralia (FCA) held by a majority that a cartoon entitled “Alas Poor Yagan” published by Western Australian
Newspapers Ltd, satirizing conicts within Noongar Aboriginal communities, was protected by freedom
of expression. In April 2001, the Australian Human Rights and Equal Opportunity Commission had found
that, although “Alas Poor Yagan” was offensive on the basis of race, color, or ethnicity under section 18C
of the Racial Discrimination Act, it fell within the exceptions in section 18D which exempted the respon-
dent from liability. According to the Commission, the cartoon amounted to an artistic work published in
good faith and in a reasonable manner, reecting a matter of public interest. The FCA eventually upheld the
Commission’s decision, although Judge Lee’s dissenting opinion contested the majority’s assessment of the
“artistic work” exemption. In Judge Lee’s view, the question of whether the publication was done in good
faith “must be assessed, in part, having regard to the subjective purpose of the publisher, but in general it
is an objective determination as to whether the act can be said to have been done in good faith, having due
regard to the degree of harm likely to be caused” (Dissenting, 141); with this in mind, the disputed cartoon
should not have benetted from the exemption, as it constituted a “serious slur” and was “at the most seri-
ous end of the spectrum” of conduct covered by the Racial Discrimination Act. On a general level, however,
it should be noted that the phrasing employed in the Racial Discrimination Act – referring to conduct that
is “reasonably likely [...] to offend, insult, humiliate or intimidate a person or group [...] because of their
race” – has been widely debated; in particular, some commentators argued that section 18C might set the
standard for liability too low (Meagher 2004), although courts have claried that the section “applies only
to conduct causing ‘profound and serious effects, not to be likened to mere slights’” (Swannie 2020; see
also Gelber and McNamara 2016 for a nuanced discussion of anti-vilication laws in Australia).
While the cases discussed so far point to a generally permissive approach to forms of humor that may
be construed as disparaging, other decisions from the database – especially from European jurisprudence –
illustrate a more restrictive stance, depending on the specic features or targets of the contested expression.
A recent example from the ECtHR is Canal 8 v. France (No. 58951/18 and 1308/19, 9 February 2023),
in which the Court found no violation of Article 10 in respect of considerable nancial sanctions imposed
by the French audiovisual regulator (Conseil Supérieur de l’Audiovisuel, CSA) on the applicant company
and conrmed by the Council of State (Conseil d’État). The sanctions concerned two segments broadcast
by the applicant company in an entertainment TV show. In the rst segment, the programme’s male host is
shown playing a ‘behind-the-scenes’ game with a female pundit, in which the woman’s hands were placed
on different parts of the host’s body including his crotch, with no evidence that the woman knew this was
to happen. The second clip consists of a series of telephone pranks where the same host speaks to men who
were replying to a fake, sexually suggestive ad that he had placed under a false name on a dating web-
site, pretending to be a bisexual person. In these conversations, the host speaks “with a high-pitched and
mannered voice, adopting an effeminate physical posture” while encouraging his interlocutors to “make
remarks with a sexual connotation” and inviting them to provide information which could potentially allow
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18
their acquaintances to identify them (26). Unlike Telo de Abreu v. Portugal, the Canal 8 decision denies
Article 10 protection to “symbolic violence” due to a series of context- and content- related factors – includ-
ing the fact that the contested humorous material directly trivializes literal violence (in the rst segment) or
targets non-public individuals to the point of violating their right to a private life (second segment).
Symbolic violence is also sanctioned in another subset of ECtHR decisions, in which the disputed hu-
mor had targeted vulnerable ethnic or religious groups – see Table 1 below:
Title Type of expression Outcome of domestic
proceedings
ECtHR Finding
Féret v. Belgium (No.
15615/07, 16 July
2009)
Islamophobic slogans
and jokes distributed by
far-right party National
Front.
250 hours of commu-
nity service, 10-month
suspended prison
sentence and 10-year
political ban for the
applicant.
No violation of Article
10 (4 votes to 3).
M’Bala M’Bala v.
France (No. 25239/13,
20 October 2015)
Comedy sketch in
which a prize was
awarded to a renowned
Holocaust denier.
€10,000 ne. Inadmissible under Ar-
ticle 17 (prohibition of
abuse of rights).
Le Pen v. France (No.
45416/16, 28 February
2017)
Anti-Roma joke told
by far-right politician
Jean-Marie Le Pen in a
campaign speech.
Criminal ne of €5,000
+ further nancial sanc-
tions.
Inadmissible under Art.
10, as the interference
with the applicant’s
freedom of expression
was necessary in a dem-
ocratic society.
Bonnet v. France (No.
35364/19, 25 January
2022)
Holocaust-denialist par-
ody of a Charlie Hebdo
front page.
€10,000 ne. Inadmissible under Art.
10 (with reference to
Art. 17), as the inter-
ference with the appli-
cant’s freedom of ex-
pression was necessary
in a democratic society.
Table 1: ECtHR cases on disparaging humor targeting vulnerable ethnic or religious minorities
These cases epitomize the ECtHR’s more restrictive stance towards disparaging humor when the speak-
er is an inuential political gure, as in Féret and Le Pen, or when Holocaust denial is involved, as in M’Ba-
la M’Bala and Bonnet (in the former case the Court resorted directly to Art. 17, thus refusing to examine
the case under Art. 10). While the other three decisions were unanimous, Féret v. Belgium stands out as a
particularly divisive case. In particular, the Court’s majority found it necessary to consider not only the al-
legedly reasonable interpretation of the applicant’s jokes and slogans, but also the “irrational” response they
were likely to trigger among people more prone to xenophobia (73); on the other hand, this deviation from
the usual reasonability standard was harshly criticized by the three dissenting judges (see Godioli, Young
and Fiori 2022 for further discussion).
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19
On a domestic level, some European countries also adopt a strict approach towards disparaging or dis-
criminatory humor. In the United Kingdom, for example, this type of expression can fall under the remit of
Section 127 of the Communications Act 2003, which makes it an offense to send a message that is “gross-
ly offensive or of an indecent, obscene or menacing character” over a public electronic communications
network. That was the case, for instance, with a controversial video posted by Scottish YouTuber Mark
Meechan, in which he showed how he had taught his girlfriend’s dog to respond to statements such as “gas
the Jews” and “Sieg Heil” by raising its paw. After being ned £800 for contravening the Communications
Act, Meechan led for leave to appeal to the UK Supreme Court, claiming that the video was only meant as
a joke to annoy his girlfriend; however, Scotland’s High Court of Justiciary Appeal denied him the leave to
appeal, on the grounds that his petition was “both incompetent and irrelevant” (Petition to the Nobile Of-
cium by Mark Meechan, [2019] HCJAC 13, 22 January 2019). Section 127 of the Communications Act is
also invoked in other cases involving dark humor, such as Chambers v. Director of Public Prosecutions (to
be discussed in the next section) and Director of Public Prosecutions v. Bussetti ([2021] EWHC 2140, 30
July 2021). This latter case revolves around a video making fun of the 2017 Grenfell tower re (in which 72
people had died), which was recorded by Bussetti during a bonre party and later circulated via WhatsApp
and YouTube (although some doubts remain as to whether the YouTube video was actually the one taken
by Bussetti). In 2021, the DPP appealed the magistrates’ decision to acquit the respondent; the appeal was
allowed by the England and Wales Divisional Court, and the case was remitted to the magistrates’ court for
a new trial before a differently constituted court. Regardless of varying opinions on the merits of each of
these cases, commentators have persuasively argued that the “grossly offensive” standard adopted in the
Communications Act might be overly subjective and set the bar too low when it comes to restricting con-
troversial material (Famouri 2020).
Moving to different geographical and political contexts, the GFoE database also features three Russian
cases concerning purportedly discriminatory humor targeting different ethnic groups – namely Prosecutor
of Saint-Petersburg v. Snob.Ru (Pushkinsky District Court of St. Petersburg, 2-3346/2015, 5 May 2015),
the Yevgeniy Kort case (Zelenograd District Court of Moscow, 01-0354/2016, 3 November 2016) and the
Idrak Mirzalizade case (Supreme Court of Russia, 5-AD22-2-K2, 14 February 2022). The relevant legal
provisions are Article 29 of the Constitution (prohibiting “propaganda or campaigning inciting social, ra-
cial, national or religious hatred and strife”) and Article 282.1 of the Russian Criminal Code, which penal-
izes actions aimed at inciting hatred or hostility and denigrating human dignity on the basis of “sex, race,
nationality, language, origins, religious beliefs, or belonging to a social group.” Hate speech was partly de-
criminalized through Article 20.3.1 of the Administrative Code, titled “Incitement of Hatred or Enmity, as
well as Humiliation of Human Dignity,” which was put into effect in December 2018. The three cases listed
above are problematic, rst of all, for the apparent lack of proportionality in the sanctions imposed by the
respective courts – in particular, Yevgeniy Kort was sentenced to one year in prison (subsequently reduced
to a ne of 200,000 rubles) over posting a cartoon featuring a racist slur on a social media site, while Idrak
Mirzalizade was put on administrative arrest for ten days before being permanently banned from Russia
(PEN 2021). Moreover, in both the Snob.ru and the Mirzalizade decisions, the relevant courts did not seem
to pay sufcient attention to context, as in both cases the disputed expression actually amounted to satirical
criticism of racism and xenophobia. The Snob.ru article actually listed negative stereotypes regarding mi-
grants to expose the racist views purportedly held by Moscow residents; similarly, stand-up comedian Idrak
Mirzalizade told a joke about “Russians and feces” in order to reverse widespread racist tropes targeting
ethnic minorities, and simultaneously ridicule any form of racism or xenophobia. Notably, in this latter
case, the Prosecutor’s Ofce had not even examined the full original version of Mirzalizade’s show, but
only inspected a decontextualized fragment posted in a group on the social network VKontakte. Using the
terminology proposed in Godioli, Young and Fiori (2022), both the Snob.Ru and the Mirzalizade judgments
seem to erroneously interpret “sarcastic disparagement” (e.g., ironic use of racist tropes as counter-speech
to satirize racism) as an instance of genuinely disparaging humor.
Lastly, it is worth mentioning two cases of derogatory humor examined by the Meta Oversight Board.
In Decision 2021-02, the Board upheld Facebook’s decision to take down a video in which an adult imper-
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20
sonated the traditional Dutch character of Zwarte Piet [Black Pete], noting that the company’s Communi-
ty Standards prohibited “designated dehumanizing comparisons, generalizations, or behavioral statements
[including] caricatures of Black people in the form of blackface.” The Board analyzed whether the removal
of the video was in line with Article 19 of the International Covenant on Civil and Political Rights (which
also extends to expression that may be considered “deeply offensive,” as claried by the UNHRC in its
General Comment No. 34) while also stressing the relevance of Article 15 of International Covenant on
Economic, Social and Cultural Rights (right to participate in cultural life). After emphasizing that the rights
to freedom of expression and participation in cultural life should be enjoyed without discrimination based
on race or ethnicity, the Board proceeded to apply the three-part test to assess whether the removal was a)
prescribed by law, (b) pursuing a legitimate aim, and (c) necessary and proportionate in a democratic soci-
ety. While the majority stressed that the Zwarte Piet character is “inextricably linked to negative and racist
stereotypes” feeding into “systemic racism in the Netherlands,” a minority of the Board saw insufcient
evidence to “directly link this piece of content to the harm supposedly being reduced by removing it.” In
Decision 2022-01 (or “Knin cartoon case”), instead, the Board overturned Meta’s initial decision to leave a
cartoon on Facebook which depicted ethnic Serbs as rats, stressing that the Hate Speech Community Stan-
dards should also apply to “implicit [e.g. metaphoric] references to protected groups [...] when the reference
would be reasonably understood.” While acknowledging in the Knin decision that “such prohibitions would
raise concerns if imposed by a government at a broader level,” the Board relied on the guidelines provided
by the UN Special Rapporteur on freedom of opinion and freedom of expression, who acknowledged that
“the scale and complexity of addressing hateful expression presents long-term challenges and may lead
companies to restrict such expression even if it is not clearly linked to adverse outcomes (as hateful advo-
cacy is connected to incitement in article 20 of the International Covenant on Civil and Political Rights)”
(A/HRC/38/35, par. 28; see Barata 2022 for a more extensive assessment).
II.3 Humor, violence and public unrest
While the previous section focused on incitement to hatred or discrimination, in the present one we turn
to the multi-faceted intersection between humor, free speech and legal provisions concerning the advocacy
of violence or public unrest. Particular attention will be paid to glorication of terrorism, but we will also
touch upon other distinct (albeit partly overlapping) categories, such as direct threats, incitement to vio-
lence or sedition, and political protest. While the cases discussed in the following paragraphs are consider-
ably diverse, it is still possible to identify some recurring trends and interpretive issues.
1. Glorication of terrorism
The gray area between dark humor and apology for terrorism is particularly well represented in Europe-
an case law. This is clearly linked to the fact that, especially over the last twenty years, “laws criminalising
offences such as ‘encouragement of terrorism’ and ‘extremist activities’ as well as offences of ‘praising’,
‘glorifying’, or ‘justifying’ terrorism have proliferated in Council of Europe member states” (Council of
Europe 2018). One of the most signicant examples is Spain, where Article 578 of the Criminal Code es-
tablishes penalties for “glorifying terrorism” or “humiliating the victims of terrorism or their relatives;” this
provision was further broadened in 2015, leading to higher sanctions when such behavior takes place on-
line. According to Amnesty International, between 2015 and 2017 84 people were convicted under Article
578, as opposed to only 23 between 2011 and 2013 (Amnistía Internacional España 2018, 7). Within this
framework, it is worth mentioning at least two heavily debated cases involving controversial humor and
satire – namely The State v. Cassandra Vera (Supreme Court of Spain, STC 493/2018, 26 February 2018)
and the César Strawberry case (Constitutional Court, STC 2476/2017, 25 February 2020). The former case
revolves around a series of old jokes posted by Vera (then an 18-year-old student) concerning the 1973
bomb attack by the Basque armed group ETA (“Euskadi Ta Askatasuna”, or Basque Homeland and Liberty)
on Luis Carrero Blanco, Prime Minister during Francisco Franco’s dictatorship. Carrero Blanco had died
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21
in the attack, together with his driver and bodyguard. Under Article 578, the Audiencia Nacional (Spain’s
highest criminal court) convicted the student with a one-year suspended prison sentence and a seven-year
ban from publicly funded jobs. However, on appeal, the Supreme Court acquitted Vera on the grounds that
the tweets were satirical, that the assassination occurred a long time ago and that the posts could no longer
pose a threat to national security.
The latter case, instead, focuses on several darkly humorous tweets by Spanish metal singer César
Montaña Lehman (also known as César Strawberry) between November 2013 and January 2014; the con-
tested expression included jokes about the terrorist groups ETA and Grapo and talking about bombing the
monarch (“It’s nearly the king’s birthday. How exciting! I’m going to give him a cake-bomb”). This time
the Supreme Court sentenced the singer to one year’s imprisonment, arguing that “afrmations such as
those disseminated in the network by César Montaña feed hate speech, legitimize terrorism as means of
resolving social conicts and, more importantly, force the victims to remember the lacerating experience of
the threat, the kidnapping or the murder of a close relative” (22). However, following Montaña Lehman’s
appeal, the Constitutional Court reversed the Supreme Court’s ruling, after determining that the lower
court’s decision was disproportionate and did not sufciently consider the sarcastic and metaphorical nature
of the disputed expression.
While terrorist-themed jokes were eventually considered protected speech in the Vera and Strawberry
cases, the opposite outcome was reached in a series of judgments from French courts. In France, “apology
for terrorism” is currently criminalized under the counter-terrorism law of 2014, whereby the offense is
punishable by up to ve years in prison and a ne of up to 75.000 Euros (to be increased to seven-year im-
prisonment and nes up to 100.000 Euros if the offense is made online). In this case too, the number of peo-
ple sentenced for apology for terrorism has risen exponentially in the last decade, with 2015 (the year of the
terrorist attack against Charlie Hebdo) as a clear watershed – from 3 persons in 2014 to 230 in 2015 and 306
in 2016, with a one-year prison sentence on average (Council of Europe 2018). A humor-related decision
directly tied to the Charlie Hebdo shooting is the one issued by the Tribunal de Grande Instance de Paris
on 18 March 2015, concerning the following Facebook post published by stand-up comedian Dieudonné
M’Bala M’Bala on 11 January 2015 (four days after the terrorist attack): “After this historic march, what do
I say…? Legendary. Instant magic equal to the Big Bang that created the universe [...] Tonight as far as I’m
concerned I feel like Charlie Coulibaly.” M’Bala M’Bala’s parody of the je suis Charlie slogan explicitly
praised Amedy Coulibaly, who was a close friend of the Charlie Hebdo gunmen and killed ve people him-
self in subsequent shootings on January 8th and 9th. M’Bala M’Bala stated that, by writing “tonight I feel
like Charlie Coulibaly,” he meant that he felt he was “a comedian treated like a terrorist,” referring to the
fact that the French authorities had allegedly prevented him from joining a free speech demonstration held
in Paris on January 11th. However, the court found the comedian’s explanations “confusing” and argued
that the post could not qualify as protected satirical expression, as it was published at a time when public
opinion was still very fraught and upset by the attacks (see, for contrast, the Vera decision above). On these
grounds, M’Bala M’Bala was handed a two-month suspended prison sentence.
In two other French cases, the authors of controversial, terrorism-related jokes appealed to the Euro-
pean Court of Human Rights, which eventually upheld the outcome of the domestic proceedings. The rst
case is Leroy v. France (ECtHR, No. 36109/03, 2 October 2008), where the applicant was a cartoonist
working for a French Basque weekly magazine. On the day of the attack on the Twin Towers, he had sub-
mitted a drawing of the attack with the caption “We had all dreamed of it… Hamas did it,” parodying a Sony
advertising slogan. Leroy stated that his intention was to represent the destruction of the American empire
and highlight double standards in media representation (“What makes their [: US victims and their families]
pain so much more media-worthy than that of the Iraqis bombed every month by American and British air-
craft?”, 10). However, the ECtHR unanimously upheld the outcome of the national proceedings (€1500 ne
for glorication of terrorism), arguing that the national court had adequately considered how the cartoon
constituted a threat to public order in a region sensitive to terrorism (such as the French Basque Country).
Moreover, as was the case with the M’Bala M’Bala judgment discussed above, the lack of chronological
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22
distance was deemed an aggravating factor: “the cartoon was published on September 13th [2001], when
the whole world was still shocked by the news” (Leroy, 45).
Thirteen years after Leroy, another French case focusing on 9/11-related humor reached the Strasbourg
court and met a similar outcome. Z.B. v. France (ECtHR, No. 46883/15, 2 September 2021) focuses on a
joke printed on a T-shirt, which the applicant gave as a birthday gift to his three-year-old nephew in Septem-
ber 2012. The T-shirt bore the words “Jihad, born on 9/11” and “I am a bomb.” The child was in fact called
Jihad (which is a common name in the Arab world) and was born on September 11th, 2009. Crucially, the
term ‘bomb’ can also mean ‘good looking’ in French. The T-shirt was worn only once at preschool and was
only seen by adults when the preschool’s director and one of the employees helped Jihad change his cloth-
ing in the bathroom. In the domestic proceedings, the applicant and his sister (Jihad’s mother) were charged
with glorication of terrorism. The applicant received a two-month suspended prison sentence and a ne of
EUR 4,000, while Jihad’s mother received a one-month suspended sentence and a ne of EUR 2,000. The
ECHR unanimously upheld the domestic ruling, thereby essentially conrming the interpretation put for-
ward on a national level by the Nîmes Court of Appeal: “Certain attributes of the child (his rst name, day
and month of birth) and the use of the term ‘bomb,’ which cannot reasonably be claimed to refer to the beau-
ty of the child, [...] in reality serve as a pretext to valorize unequivocally willful attacks on life” (Z.B., 11).
As discussed in Godioli, Young and Fiori (2022), the perspective adopted by the Nîmes Court of Appeal
and the ECtHR in Z.B. does not seem entirely convincing and would have beneted from a closer examina-
tion of the specic textual and contextual features of the contested joke. In particular:
1) The idea that the French term bombe “cannot reasonably be claimed to refer to the beauty of
the boy” seems awed from a rhetorical perspective, as “I am a bomb” is in fact a rather conven-
tional metaphor which is well established in the French language; and more generally, the T-shirt’s
allusions to the 9/11 attacks are part of a metaphoric construction ultimately referring to the child,
while of course playing with the fact that a child named Jihad was born on 9/11. In this sense, the
Z.B. joke is structurally different from the Leroy cartoon (which is repeatedly evoked in the pro-
ceedings as a signicant precedent), as the cartoon featured a direct and explicit statement about
the Twin Towers attacks.
2) Although the rst instance court of Avignon ascertained that the T-shirt was only worn “on
one occasion” which was “limited in time (the afternoon of September 25th) and space (the nurs-
ery class),” and “only two people had been able to see the words on the T-shirt while dressing the
child,” these aspects (which are a key part of what Tsakona 2020 denes as the “specic communi-
cation setting” of a joke) were not extensively considered by the Court of Appeal and the ECtHR.
3) According to the ECtHR, “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” (60); yet, one could argue that the speaker’s history and ideological prole – or, in liter-
ary-theoretical terms, their “prior ethos” (Korthals Altes 2014) – does seem particularly relevant
when it comes to criminal charges like glorication of terrorism, even more so when the disputed
text is a rather ambiguous joke.
4) Lastly, another important contextual (or intertextual) factor is genre, namely the discursive
tradition to which the contested joke can be reasonably ascribed. In this sense, Z.B.’s T-shirt could
be usefully placed in dialogue with a sub-genre of dark humor often used by comedians from a
Muslim background post 9/11, relying on the ironic use of Islamophobic tropes such as ‘all Mus-
lims are terrorists.’ Shortly after 9/11, for example, British stand-up comedian Shazia Mirza fa-
mously opened her set with the line “My name is Shazia Mirza, or at least that’s what it says on my
pilot’s license” – which rather than being a glorication or trivialization of terrorism, was meant as
a sarcastic critique of mounting Islamophobia after the attacks (Aidi 2021). Similarly, the disputed
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23
T-shirt can also be construed as an attempt (however awkward) to make fun of the Islamophobic
cliché casting Muslims as Jihadists until proven otherwise – let alone a family where a child is
named Jihad.
Certainly, the ECtHR judgment also presented some valid reasons to uphold the domestic ruling – in-
cluding the importance of acknowledging a signicant margin of appreciation to national courts, which
are often better positioned to assess the impact of a disputed expression within its specic socio-cultural
context. However, a more systematic engagement with the aspects listed above would have been desirable
(see also Nugraha 2021 for another critical reection on this decision).
2. Direct threats and incitement to violence or sedition
At least on a thematic level, Z.B. v. France can be usefully contrasted with Chambers v. Director of
Public Prosecutions (High Court of England and Wales, EWHC 2157, 27 July 2012) – although this latter
case does not exactly focus on the glorication of terrorism, but rather explores the gray area between dark
humor and what U.S. doctrine would dene as true threat. In 2010 the appellant had posted the following
tweet regarding the temporary closure of the Robin Hood airport near Shefeld (UK), where he was sup-
posed to travel from within a couple of weeks: “Crap! Robin Hood Airport is closed. You’ve got a week and
a bit to get your shit together otherwise I am blowing the airport sky high!!” Five days later the airport’s
security manager reported it to the police, and Mr Chambers was initially convicted for sending a public
electronic message of a “menacing character” (Communications Act 2003). However, upon second appeal,
the High Court quashed the conviction based on the following reasons:
The Crown Court was understandably concerned that this message was sent at a time when, as
we all know, there is public concern about acts of terrorism and the continuing threat to the security
of the country from possible further terrorist attacks. […] In any event, the more one reects on it,
the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form
of threat. […] The grievance addressed by the message is that the airport is closed when the writer
wants it to be open. The language and punctuation are inconsistent with the writer intending it to be
or to be taken as a serious warning. [...] Finally, although we are accustomed to very brief messages
by terrorists to indicate that a bomb or explosive device has been put in place and will detonate
shortly, it is difcult to image a serious threat in which warning of it is given to a large number
of tweet “followers” in ample time for the threat to be reported and extinguished. (Chambers, 31)
In a similar way, one could argue that many signs point to the 9/11 joke from Z.B. v. France not being
meant as serious Jihadist propaganda – for example the fact that it was printed on a child’s T-shirt in a clearly
childish font, or that (as ascertained by the rst instance court) it was not meant to reach a wide audience of
adult readers. Despite the differences between the two cases, the opposite outcomes of Z.B. and Chambers
highlights a certain degree of inconsistency in international judicial approaches to terrorist-themed jokes.
Moving from Europe to Asia, a different kind of threatening joke is at the center of HKSAR v. Chan
Johnny Sek Ming (Hong Kong District Court, Criminal Case No. 196, 20 September 2006). The defendant,
Chan Johnny Sek Ming, had posted messages on a website in which he had described in detail his plan to
organize a gang-rape. Following criticism from several members of the forum, he reafrmed his intention
to organize the rape and taunted the police to come and get him – which they did. Based on the testimony
of one witness who vouched for the defendant’s good character and claimed the post was likely a “joke” as
per the “culture of the website,” the Court found there was insufcient evidence to prove intent to commit
the offense, or even to incite others to engage in such behavior. However, the Court held that the messages
were “in substance a public invitation to others to indulge in such sexual perversion,” and the nature of the
internet as a public forum made it all the more likely for the message to inspire others to commit such an
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24
act, with or without the defendant. On these grounds, the court concluded that the message met all the con-
ditions of an outrage to public decency, in light of paras. 21-298 to 21-304 of Archbold Hong Kong 2005.
Interestingly, in this case the issue of incitement seems to be completely dependent on the assessment of the
defendant’s subjective intent, rather than on a more objective “reasonable speaker” standard. By contrast,
other systems explicitly favor the latter criterion in public incitement cases; e.g., see Mthiyane and Ntuli
(2021) on incitement provisions in South Africa, and Sardo (2022) for a broader discussion of the reasonable
speaker standard. This being said, the objective component is still reected in the legal test for outrage to
public decency (regarding humor and public morals from a comparative perspective, see also Section II.5).
On a general level, it should be noted that HKSAR taps into an increasingly urgent topic – namely the ef-
fects of misogynistic humor and rape jokes on online fora (e.g. incel communities), and the role of this type
of “symbolic violence” (see previous section) in normalizing or promoting actual violence against women
(Regehr 2022). On this subject, the HKSAR case can be partly compared with the French case of Pascal
Aurélien X. (OrelSan) (15/02687, 16 February 2016), where the Versailles Court of Appeal upheld a lower
court ruling acquitting the French rapper OrelSan of incitement to hatred and violence against women. In
his song lyrics, inter alia, OrelSan invoked the murder of actress Marie Trintignant at the hands of her boy-
friend (“shut your mouth or you’ll be Marie-Trintignized”), which he dened as “black humor.” The Court
found that the lyrics must be assessed in light of the “style” characterizing the musical genre they belong
to and taking into account the social context in which the song’s ctional characters are immersed. From
this standpoint, the Court held that the singer himself did not endorse the views of his imaginary characters,
and it was sufciently clear to his audience that the lyrics should not be construed as actual incitement to
violence. Notably, in this case the issue of genre clearly plays an important role in the court’s reasoning (cf.,
by contrast, our discussion of Z.B. v. France above).
Another potential intersection between humor and incitement involves politically motivated violence
or sedition. This theme is addressed, for example, in Marathe v. The State of Maharashtra (Bombay High
Court, Cri.PIL 3-2015, 17 March 2015), concerning a political cartoonist who had been charged with the
offense of sedition (under Section 124A of the Indian Penal Code) over a series of cartoons that allegedly
defamed India’s Parliament and the Constitution, and spread hatred towards the government. In quashing
the charges, the Court issued a set of guidelines to be followed in applying Section 124A, pointing out that
– in order to qualify as seditious – a given expression must not only bring the government “into hatred or
contempt,” but “must also be an incitement to violence or must be intended or tend to create public disor-
der or a reasonable apprehension of public disorder” (17). A similar stance was taken in Indibility Creative
Pvt Ltd v. Govt of West Bengal (Writ Petition (Civil) No. 306, 11 April 2019), where the Supreme Court of
India found that the unofcial “shadow ban” imposed by the West Bengal Government on a satirical lm
was unconstitutional. The ban targeted a Bengali satirical lm titled Bhobishyoter Bhoot [‘Future Ghosts’],
which had been duly certied for public exhibition, based on intelligence reports claiming that the lm
could cause “political law and order issues.” According to the Supreme Court, the State had misused police
powers to obstruct the screening of the lm, and therefore violated the Petitioners’ right to freedom of ex-
pression under Article 19(1)(a) of the Constitution.
Moving from India to the Russian Federation, a more restrictive approach was followed in the case of
Dmitry Semenov (High Court of the Republic of Chuvashia, 22-2559/2015, 29 October 2015). In March
2014, Semenov – a journalist for Open Russia as well as a human rights advocate and activist – reposted a
link to an article on VKontakte, Russia’s largest social media network. The repost was accompanied by an
image featuring a caricature of then-prime minister Dmitry Medvedev wearing a traditional Caucasus hat,
with a caption reading “Death to Russian vermin.” In January 2015, the Federal Committee on National
Security searched Semenov’s residence, and presented him with charges for public incitement of extremist
activities under the Russian Criminal Code (Art. 280, para. 1). Semenov argued that VKontakte automat-
ically tagged the photo in his post; he had no control over the tag, and had no intention of reposting the
photo. Nevertheless, the Lenin regional court of rst instance found Semenov guilty of public incitement
of extremism and ned him RUB 150,000 (equivalent to 2,336 USD at the time); following the defendant’s
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25
appeal, the High Court of the Republic of Chuvashia upheld the guilty verdict but granted Semenov amnesty,
thus forgiving the ne and striking the conviction from Semenov’s record. Amnesty was available to all rst-
time offenders per the order of President Putin to commemorate the anniversary of the end of World War II.
Another comparable case is the one concerning Muhammud Ruhul Amin Khandaker (Additional Chief
Metropolitan Magistrate Court, Dhaka, 11 August 2015). The defendant, a lecturer at the Jahangirnagar
University in Bangladesh, had written the following Facebook post, commenting on a road trafc accident
in which ve persons – including an acclaimed lmmaker and a renowned national news anchor – had died:
“Consequences of driving licenses without inspection, ve persons including Tareque and Mishuk Munir
died: Everybody dies, why not Hasina? [: Sheikh Hasina, Prime Minister of Bangladesh].” After a pro-gov-
ernment newspaper published the post, Khandaker was charged and convicted for sedition under Section
124-A of the Bangladesh Penal Code, resulting in a three-year rigorous prison sentence and a ne of 10,000
Bangladesh Taka. In failing to distinguish between a sarcastic, hyperbolic remark (however distasteful)
and actual incitement to violence, this decision represents a worrying instance of speech contraction and
is bound to create a chilling effect on freedom of expression in Bangladesh. For comparison, a dark – and
arguably more aggressive – joke evoking the death of a head of state was eventually protected under free
speech provisions in the case of César Strawberry (see above); a similar topic is also addressed in MAC TV
v. Slovakia (ECtHR, No. 13466/12, 28 November 2017), although in this latter case the joke concerned an
event that had actually happened, namely the death of Polish President Lech Kaczynski in a plane crash.
3. Political protest
We conclude this section with a smaller group of judgments regarding humorous forms of political
protest (on the importance of humor in political activism, see in particular Sørensen 2016 and Lionis 2023).
All three cases discussed below were adjudicated by the European Court of Human Rights and originated
in Eastern Europe – which is not surprising, considering how former Eastern Bloc countries have retained
particularly strict provisions regarding “petty hooliganism” and disruption of public order. An indicative
example is Handzhiyski v. Bulgaria (ECtHR, No. 10783/14, 6 April 2021). The applicant was a local pol-
itician who had placed a red Santa Claus cap and a red sack (with the word “resignation” on it) on an al-
ready-vandalized statue of former political leader Dimitar Blagoev, founder of the main party in the govern-
ment coalition. This incident was part of a wave of demonstrations which had erupted in June 2013 against
the newly-elected government of Bulgaria. After being arrested and detained for 24 hours, Handzhiyzki
was charged under Article 1(2) of the 1963 Decree on Combating Minor Hooliganism, which denes the
offense as, inter alia, “indecent statements, made in a public place in front of many people,” or “[showing
an] offensive attitude towards citizens, public authorities or society,” which breach public order and quiet-
ness but, owing to their lower degree of seriousness, do not amount to the criminal offense of hooliganism
laid down in Article 325(1). Despite the politician’s claim that that his actions only amounted to a “good
political joke” (14), the rst instance court found him guilty and imposed a ne BGN 100 (the equivalent
of EUR 51) – the “lowest possible ne” because of the absence of aggression, lack of criminal record and
unemployment status. After an unsuccessful appeal, Handzhiyzki lodged an application with the ECtHR,
which found a violation of Article 10 with a majority of six judges to one.
The ECtHR also took a speech-protective stance in another case regarding a different form of satirical
protest, namely Magyar Kétfarkú Kutya Párt [MKKP] v. Hungary (No. 201/17, 20 January 2020), where
the Court found that Hungary violated Art. 10 by imposing a ne on political party MKKP for creating a
“cast-an-invalid-vote” app that allowed users to anonymously share a photograph of their paper referen-
dum ballots. Notably, the applicant party’s political stance “is largely conveyed through satire directed at
the political elite [...], through its website (which includes much humorous content), through purported
‘campaigns’ for clearly absurd causes, and through street art and performances” (7). The Government main-
tained that the sanctions against MKKP were necessary in order to “protect the public interest in ensuring
the orderly conduct of the voting procedure” (78). In response, the ECtHR emphasized the importance of
political plurality in democracies and stated that restrictions on political parties’ freedom of expression
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26
has to undergo “rigorous supervision” (100). In an unexpected twist, ruling party Fidesz later built on the
ECtHR decision to propose an electoral law amendment allowing photographing ballots for personal use.
The amendment was subsequently approved, raising concerns regarding potential blackmailing and threats
to vote secrecy (Hungary Today 2020; see Gyöngyi 2020 for a nuanced discussion of the case).
In contrast to both cases discussed above, the ECtHR followed a more restrictive approach in Sinkova v.
Ukraine (No. 39496/11, 27 February 2018), where a majority of four judges to three found no violation of
Article 10 in the imposition of a three-year suspended sentence for a satirical performance involving a war
memorial. The case concerned the arrest, detention and conviction of Anna Sinkova – a member of an artis-
tic group called St. Luke Brotherhood, who fried eggs on the ame of the Tomb of the Unknown Soldier in
Kyiv as a protest against the waste of natural gas, and later posted the video on the internet on behalf of the
Brotherhood. She was arrested and detained for three months pending criminal proceedings on suspicion of
hooliganism, and eventually convicted under Article 297 of the Criminal Code (“Desecration of a tomb or
other burial place”). In its nding of no violation, the majority argued inter alia that the applicant could have
found “more suitable ways to express her views or participate in protests about the State’s use of natural
gas [...], without breaking the criminal law or insulting the memory of soldiers who had given their lives
defending their country” (110). As pointed out by several commentators, this claim seems to disregard the
importance of provocation and exaggeration in satirical criticism – which is especially relevant “in the age
of social media, where such provocative videos tend to ‘go viral’ and reach a mass audience, thus sparking
debate about the issue” (Mishra 2022, 49). Although the scope of Sinkova was later limited through the
Handzhiyski judgment among others, this specic case seems to suggest that the protection granted by the
ECtHR to peaceful satirical protest is partly “inconsistent with its position on political expression more
generally” (Mishra 2022, 30; see also Ó Fathaigh and Voorhoof 2019).
II.4 Parody, copyright and trademarks
Focusing now on forms of expression which, in some cases, deal with commercial themes, we con-
sider the issues that can occur in the interplay between humor and ownership rights. Copyright is a form
of intellectual property (IP) law applying to creative works. Whilst there is no international IP law per se,
international treaties have established obligations which member states must adhere to and incorporate into
national laws. The World Intellectual Property Organization (WIPO), an agency of the United Nations, is
responsible for the administration of the Berne Convention (1886) for the Protection of Literary and Artis-
tic Works. The Convention establishes minimum standards of international copyright protection, as well
as binding countries who are members of the Agreement on Trade Related Aspects of Intellectual Property
Rights and the WIPO Copyright Treaty (Rallabhandi 2023). The WIPO Copyright Treaty (1996) recognized
the need to introduce new international rules and clarify existing rules to address issues raised by economic,
social, cultural and technological developments.
IP law grants exclusive rights to the copyright holder to control the use and distribution of their work.
These rights are protected for a limited time period and are subject to additional limitations (including par-
ody), which can take the form of fair use, fair dealing or a specic exception. Although denitions may vary
signicantly across different systems, parody must typically “borrow elements from an existing work” (or
from an established format), whilst being “noticeably different from it” and humorously commenting on its
original model or on any other subject (Murray 2019: 54 and Jacques 2019: 7). Parody has been dened as
the “paradigmatic form of fair use” (Victor 2021: 105), and as a form of artistic expression it can fulll im-
portant democratic functions including social and political critique. It is often associated with neighboring
notions such as caricature and pastiche – although it is not clear whether these may designate three separate
exceptions in copyright law, or rather constitute different nuances of the same exception (Jacques 2019).
For the purposes of this paper, however, we will subsume caricature and pastiche under the notion of par-
ody, considering that this latter term is the predominant one in cases concerning humor and copyright, and
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27
that all three “intend to signal a reproduction of copyright-protected works without constituting a substitute
for the original” (Jacques 2023).
In this section we will discuss a selection of cases focusing on parody and copyright, while also extend-
ing our scope to trademark law. The trademark is one of the oldest forms of IP protections. One can use a
trademark or trademarked product, service or brand legally in parodic works as long as the parody com-
ments on the original work without confusing the consumer as to the origin of the product, service or brand,
and without gaining unfair advantage from the repute of the trademark. The intersection of parody and IP
law – both copyright and trademark – has been the subject of a growing corpus of legal and interdisciplinary
scholarship, and extensive comparative analyses of relevant case law from different regions are available
(see, inter alia, Jacques 2023 and 2019 and Lai 2019). For the purposes of our paper, we will limit ourselves
to addressing some signicant examples from the Global Freedom of Expression database, starting with
cases where the humorous nature of the disputed work has tipped the scale in favor of creative expression
(as opposed to protecting the rights of the copyright or trademark owner).
An inuential parody and copyright case from the U.S. is Leibovitz v. Paramount Pictures Corporation
(137 F.3d 109, 19 February 1998), where Paramount Pictures were sued by the photographer Annie Leibo-
vitz after they parodied her Vanity Fair cover featuring a pregnant Demi Moore posing naked. Paramount’s
version had superimposed the head of the actor Leslie Nielsen onto the body of a naked, pregnant woman.
This parody was used to advertise the release of their lm Naked Gun: The Final Insult 33 ⅓. Paramount
argued fair use, and both the lower court and the Court of Appeals for the Second Circuit found in their
favor – agreeing that, whilst there was copyright infringement, the balance favored Paramount’s fair use
defense. The Court considered the factors in Campbell v. Acuff-Rose Music Inc. (510 U.S. 569, 7 March
1994) concluding, inter alia, that Paramount’s advertisement “adds something new and qualies as a ‘trans-
formative’ work” (5).
Campbell v. Acuff-Rose Music Inc. was a case from 1994 in which the copyright holders of Roy Or-
bison’s rock ballad “Oh, Pretty Woman” claimed copyright infringement against the members of the rap
music group 2 Live Crew and their record company. 2 Live Crew had substituted Orbison’s lyrics with ones
such as “Big Hairy Woman,” to illustrate “how bland and banal the Orbison song seems to them” (754 F.
Supp., at 1155). 2 Live Crew had identied the authors of “Pretty Woman” as Orbison and Dees and its pub-
lisher as Acuff-Rose on their albums and compact discs. The District Court decided that 2 Live Crew’s song
was a parody which made fair use of the original song under the Copyright Act of 1976, 17 U.S.C. § 107.
The Court of Appeals reversed and remanded the judgment on the grounds that the commercial nature of
the parody rendered it presumptively unfair under § 107, considering that 2 Live Crew had used the “heart”
of the original work and made it the “heart” of a new work, therefore taking too much from the original and
using it for commercial purposes. However, the Supreme Court decided that the nding of no fair use on
account of the commercial nature of 2 Live Crew’s song was in error, as the purpose of 2 Live Crew’s song
was to parody Orbison’s song. This swung the balance back towards a nding of fair use, also considering
that 2 Live Crew’s song would minimally impact on the market for Orbison’s original song as the two works
would serve different market functions (571). Consequently, the Court held that the Sixth Circuit erred and
2 Live Crew’s commercial parody constituted fair use.
A decision which shares various elements with the above cases is Yankee Publishing Inc. v. News
America Publishing Inc. (No. 90 Civ 8120(PNL), 17 December 1992). News America Publishing Inc. had
taken prominent elements of Yankee Publishing’s registered traditional magazine cover design for the Old
Farmer’s Almanac, a wholesome, ‘folksy’ magazine, and parodied this by suggesting a thrift theme for
their readers which was intended to be satirical in nature. Yankee sued for trademark infringement and false
designation of origin, as well as unfair competition, unjust enrichment and trademark dilution. However,
the Court found merit in News America Publishing’s use of the design for humorous commentary, consid-
ering the expression to be constitutionally protected and unlikely to cause confusion or damage Yankee’s
trademark. The Court decided that the cover of the magazine was clearly a joke, could be recognized as
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28
socio-economic commentary, and readers would be sophisticated enough to differentiate between the two
magazines. In addition, the Court found that the defendant’s right of free speech, using comic commentary,
outweighed any injury that may have been caused to Yankee’s trademark rights.
For European courts, the leading judgment on parody and copyright infringement is Deckmyn v. Vander-
steen (Court of Justice of the European Union, C-201/13, 3 September 2014). The case started when the
ve heirs of Willy Vandersteen, the creator of the Belgian comic series Suske en Wiske, brought a copyright
infringement action against Johan Deckmyn, a member of a far-right Belgian political party that produced
and distributed calendars with a drawing that resembled the cover of a Suske en Wiske issue titled “The Wild
Benefactor.” In the parody version, the mayor of Ghent was depicted as one of the comic book characters,
strewing gold coins to immigrants. The plaintiff argued that the drawing conveyed a discriminatory mes-
sage and created an association between the original drawing and said message. Notably, Willy Vendersteen
had demanded in his will that his comics never be used for political purposes. The tribunal of rst instance
of Brussels held that the calendars amounted to copyright infringement, and that the parody exception did
not apply. Subsequently, the Brussels Court of Appeal considered that a denition of parody had not yet
been provided by the Court of Justice of the European Union (CJEU), and decided to stay proceedings
while waiting for the CJEU to answer the following questions: (1) Is the concept of “parody” an indepen-
dent concept in European Union law? (2) If so, which characteristics of parody must be met to determine if
a work is a parody? (3) Are there additional requirements? In their decision, the CJEU established parody as
an “autonomous concept of EU law,” and determined two requirements that works must meet to qualify as a
parody. These requirements are that a parody must “evoke an existing work while being noticeably different
from it,” and must “constitute an expression of humour or mockery” (20). While the Deckmyn decision is
largely compatible with previous denitions of parody offered by literary scholars, a more systematic in-
terdisciplinary dialogue could help courts better clarify parody’s relation to caricature and pastiche, as well
as the full range of intents characterizing these forms of expression – spanning from playful imitation to
sarcastic criticism (Breemen and Breemen 2022).
The extent to which dark or shocking humor qualies as lawful parodic intent is at the center of the
Dutch case Mercis c.s. v. Punt.nl (Court of Appeal of Amsterdam, LJN: BS7825, 13 September 2011),
concerning seven cartoon parodies of Miffy the Rabbit or (in Dutch) Nijntje – a popular character from the
children’s picture books series created by Dick Bruna. The right holders brought a copyright and trademark
infringement action against Punt.nl regarding the online publication of the contested cartoons, which (inter
alia) portrayed Miffy as a drug user and a terrorist involved in the 9/11 attacks. Punt.nl, the hosting pro-
vider of the websites that published the images, invoked the parody exception as a defense. While the rst
instance court only accepted the parody exception in relation to ve cartoons, the Court of Appeal argued
that all seven cartoons were lawful, as the distance from the original and the humorous nature of the parody
are sufciently clear. In particular, the court remarked that “it is not necessary for everyone to be able to
laugh about it” for a parody to fulll the requirement of humorous intent (4.13).
A specic set of problems arises when a well-known copyrighted character is parodied for commercial
purposes, such as in an advertising campaign. A tting example is CO.GE.DI. International v. Zorro Pro-
ductions Inc. (Supreme Court of Cassation, No. 38165, 30 December 2022), in which Italy’s Supreme Court
jruled over an advertisement featuring an actor dressed up as Zorro without authorization from the charac-
ter’s copyright and trademark holders. While the rst instance tribunal initially found that the advertisement
was a copyright and trademark infringement, the Rome Court of Appeal later overturned the lower court’s
decision, on the grounds that Zorro had fallen into the public domain. However, as found by the Supreme
Court in 2017, Zorro was still protected by copyright under the seventy-year term after the death date of the
author. After being asked by the Supreme Court to review its decision, the Court of Appeal ruled that the
contested advertisement amounted to copyright and trademark infringement, in light of the following: (1)
The parody exception requires a creative re-elaboration of an earlier work; (2) Italy did not transpose into
its legal system Article 5(3)(k) of the Information Society Directive, which provides for caricature, parody
or pastiche as an exception to copyright. In response to that, the Supreme Court noted that – despite its “un-
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29
avoidable parasitic character” – a parody is an autonomous work characterized by a “conceptual reversal”
of the original; therefore, unlike other types of derivative works, it does not need to be a “creative re-elab-
oration” of the protected work. Moreover, the Court stressed that being a type of “quotation for the purpose
of criticism or review,” parody is actually protected by Article 70(1) of the Italian Copyright Act. Therefore,
the Court of Appeal was mistaken in its assessment of the advertisement as copyright infringement. On the
other hand, regarding trademark, the Supreme Court held that there might be a risk for the parody to cause
an unfair exploitation of the trademark’s reputation; on this basis, it asked the Court of Appeal to issue a
new judgment specically concerning the potential trademark infringement.
Broadening the scope to South Africa, Laugh It Off Promotions v. South African Breweries (Constitu-
tional Court of South Africa, CCT42/04, 27 May 2005) also centers on the interaction of trademark law
and parody. Laugh It Off Promotions CC is a company which parodies brands by altering the images and
words on trademarks and printing them onto T-shirts – both for prot and to engage in social commentary.
In this case, T-shirts had been printed with a parody of the well-known Carling Black Label trademark,
which subsequently brought the action. The Cape High Court noted the difference was only in the wording:
“Black Label” was replaced with “Black Labour,” while “Carling Beer” was replaced with “White Guilt,”
and “America’s lusty lively beer […] Enjoyed by men around the world,” was replaced with “Africa’s
lusty lively exploitation since 1652 […] No regard given worldwide.” The High Court considered that the
message on the shirts carried a likelihood of material detriment to the distinctive character or repute of the
marks, and the applicant could not raise the defense of free expression as the marks had been exploited
for gain. The court found the use of the marks was not just parody poking fun at the trademarks, but rather
bordered on hate speech by invoking race. The Supreme Court of Appeal conrmed the restraint order
which had been granted against Laugh it Off for infringement of the respondent’s trademark. The applicant
then took the case to the Constitutional Court, which overturned the Supreme Court of Appeal’s decision as
South African Breweries had failed to establish the “likelihood of taking advantage of, or being detrimental
to, the distinctive character or repute of the marks.” Remarkably, the Constitutional Court’s decision was
solely based on technical grounds in light of the Trademarks Act, as the Court expressly declined to examine
whether the satirical or parodic message was protected by freedom of expression. In his concurring opinion,
Judge Sachs contended that the judgment should have ruled on the latter question as well and stressed that
humorous expression is not only permissible but necessary to the health of constitutional democracy.
A speech-protective approach is also followed in the Indian case Tata Sons Limited v. Greenpeace
International (High Court of Delhi, 178 (2011) DLT 705, 28 January 2011). The company Tata Sons Ltd
had sought a permanent injunction and damages against a game produced by Greenpeace International, on
the grounds of unauthorized use of its trademark and loss of reputation for the company. While the lawsuit
was pending, Tata Sons also applied for a temporary injunction. Greenpeace claimed that Tata Son’s in-
dustrial activities had an adverse impact on the breeding of Sea Turtles. To create awareness of the issue,
Greenpeace had launched a game which was based on Pacman, titled “Turtles v. Tata,” where the turtles
are portrayed as escaping the Tata logo. The Court held that the representation of the Tatas in the game is
clearly “hyperbolic and parodic,” and that a temporary injunction should not be issued as there was no proof
of defamation.
In other cases, however, the right-holder’s interests have been favored over the parodist’s freedom of
expression. A recent, widely debated case from the United States is Jack Daniel’s Properties, Inc. v. VIP
Products LLC (599 U.S. ___, 8 June 2023), which began in 2013 when VIP Products created and marketed
a dog toy shaped like a Jack Daniel’s bottle. The toy was named “Bad Spaniels,” and the label bore the
image of a spaniel over the name of the product. The toy label also reads “the Old No. 2, on your Tennessee
Carpet,” which parodied the words “Old No. 7 Brand Tennessee Sour Mash Whiskey” from Jack Daniel’s
bottles. Notably, the toy had a tag attached, explaining that the product was not afliated with Jack Daniel’s.
Nevertheless, Jack Daniel’s led suit against VIP Products, presenting two legal issues – the rst concerned
the likelihood of consumers being confused that the toy “Bad Spaniels” was in fact a Jack Daniel’s product
(15 U.S.C. §1125(1)), while the second concerned “Bad Spaniels” tarnishing the Jack Daniel’s trademark
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(Id. §1125(c)(2)(C)). Reversing the previous decision by the District Court of Arizona, the Court of Appeal
for the Ninth Circuit qualied the parodic nature of the toy as protected expression through the Rogers test
from the landmark case Rogers v. Grimaldi. Based on this test, an infringement claim should be dismissed
at the outset unless the complainant can show that the contested use of a trademark “has no artistic rele-
vance to the underlying work,” or “explicitly misleads as to the source or the content of the work” (see also
Duvall 2022). The Ninth Circuit therefore remanded for the District Court to assess whether either require-
ment of the Rogers test was satised; moreover, it overturned the lower court’s nding of trademark tar-
nishment, invoking the Trademark Dilution Revision Act’s exception for “noncommercial use of a mark.”
In June 2023, however, following the trademark owner’s petition for review, the Supreme Court dismissed
the Ninth Circuit’s decision on the grounds that neither the Rogers test (with regard to infringement) nor
the noncommercial exclusion (with regard to dilution by tarnishment) apply “when the challenged use of a
mark is as a mark” (20), as is the case with VIP using “Bad Spaniels” as a trademark for its own product. As
a consequence, the Supreme Court remanded for the lower courts to conduct a likelihood-of-confusion and
dilution analysis, which had been sidestepped by applying the Rogers test and the noncommercial exception
respectively. Writing for a unanimous Court, Justice Kagan acknowledged that the Jack Daniel’s opinion
has “narrow” scope, as it focuses on technical details of trademark law rather than engaging with broader
reections on humor, parody and freedom of expression (see also Little and Rosen 2023).
Another recent decision siding with IP rights owners is Shazam Productions Ltd v. Only Fools The
Dining Experience Ltd & Others (High Court of England and Wales, [2022] EWHC 1379, 8 June 2022),
which set an important precedent in English and Welsh law by recognizing that a ctional character can be
copyright-protected as an independent work. The case was brought by the company Shazam Productions
Ltd owned by the family of John Sullivan, who wrote the popular British situation comedy show Only Fools
and Horses. Sullivan’s family held the rights to this work. The defendants had developed an interactive
dining experience named Only Fools: The (Cushty) Dining Experience, based on and featuring the charac-
ters, location, and catchphrases from the television series – ‘cushty’ being a word often used by Sullivan’s
main character ‘Del Boy.’ Shazam contended it owned the copyright to the sitcom’s scripts and characters,
alleging the defendants’ show amounted to copyright infringement and passing off. The defendants denied
any copyright infringement, relying on the defense of fair dealing under the parody exception established
by s.30A of the Copyright, Designs and Patents Act 1988.
The Court decided in favor of Shazam, and the claims for copyright infringement and passing off
succeeded. In his judgment, John Kimbell KC built on Deckmyn to clarify that parody should provide a
humorous commentary on the original work or another subject, while dening pastiche as an “imitation of
the style of pre-existing works, and the utilization or assemblage of pre-existing works in new works.” On
these grounds, he decided that the use of the characters, their backstories, jokes and catchphrases had not
been pursued by the Dining Experience for parodic purposes; and whilst the script was humorous, this ele-
ment came from the borrowed material. The Dining Experience’s script did not evoke the situation comedy
to mock it or critically engage with it (194); additionally, the judge noted that the “wholesale transposition
of the characters, language, jokes and backstories from OFAH into the setting of an imaginary pub quiz
[…] is closer in form to reproduction by adaptation than parody” (194). This is the rst time the domestic
Court recognized a ctional character as an independent copyright work; moreover, the case illustrates how
a certain degree of humorous distance and conceptual alteration is needed for a work to qualify as parody.
As pointed out by Jacques (2023), the Shazam decision is also signicant because of its submission that
pastiche might constitute a separate defense to parody, which paves the way for a possible departure from
the EU’s Deckmyn standard.
Lastly, a comparable decision regarding the revisitation of a ctional character stemmed from the Tintin
sculptures case (Court of Appeal of Aix-en-Provence, RG no. 22/04302, 24 November 2022). In 2017, an
artist manufactured sculptures inspired by Tintin and a rocket as portrayed in the original comic book The
Adventures of Tintin: Destination Moon (1953). The artist was sued for infringement of the moral rights of
the author, but claimed the works were original under the parody exception granted by Art. L122-5 4° of
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31
the Intellectual Property Code. The court eventually concluded that the sculpture did not differ sufciently
to be qualied as parody, since there was no specic intellectual contribution and/or questioning, nor touch
of humor or even derision within the works. Therefore, the work was deemed an infringement of copyright
and damages were awarded to the rights holders. Similar to the Shazam decision, the Tintin judgment un-
derstood parody as transformative imitation for humorous or satirical purposes; in this case too, the lack of
a clear transformative element prompted the court to rule in favor of the copyright owner. Once again, the
approach followed by both courts is substantially in line with widely accepted denitions of parody in the
humanities, although literary theorists do not always place the same emphasis on the humorous component.
In her inuential A Theory of Parody (1985), for example, Linda Hutcheon argued that while parody may
well be humorous, its scope is potentially broader and can be dened more neutrally as “repetition with
critical distance, which marks difference rather than similarity” (6). As suggested above and exemplied by
recent studies such as Breemen and Breemen (2022), Jacques (2019) and Lai (2019), a closer dialogue be-
tween legal practice and theoretical work on the topic could allow for more precise denitions and a further
harmonization of international standards on parody and IP law.
II.5 Humor and “public morals”
To conclude our collection of cases, in this section we consider how humor might affect the courts
when they balance the right to freedom of expression with the right to freedom of religion and the nebulous
concept of “public morals.” Several countries worldwide have revoked their laws regarding blasphemy,
and there is a broad consensus that courts should not be the arbiters of public morals (Temperman and
Koltay 2017; Gegenava 2022). Nevertheless, recent ECtHR jurisprudence shows that allegedly injurious
or indecent expression can still undergo religious or moral censure by national European courts, although
the outcome of the domestic proceedings is usually overturned by the Strasbourg Court. For example,
Gachechiladze v. Georgia (ECtHR, No. 2591/19, 22 July 2021) concerned condom packaging which used
satirical images found by the domestic court as insulting to the religious and national dignity of the popu-
lation, breaching “public morals,” and therefore amounting to “unethical advertising.” The ECtHR consid-
ered that the designs contributed to public debate on matters of general interest, which warranted a lower
margin of appreciation.
In Sekmadienis v. Lithuania (ECtHR, No. 69317/14, 30 January 2018), instead, an advertising agency
had been ned for breaching Lithuania’s advertising law by violating public morals. The agency’s cam-
paign for a clothing line included images of actors bearing similar physical traits to religious gures and
using terms such as “Jesus, what trousers!”. The applicant argued they were creating a comic effect using
common emotional interjections as word play. The national courts did not address the comical aspect and
found that the interference was in accordance with the law (which had been changed during the national
proceedings to prohibit advertisers from expressing contempt for religious symbols). The ECtHR found
the advertisements were neither gratuitously offensive nor incited hatred on the grounds of religious belief,
concluding that the domestic courts had not struck a fair balance between the protection of public mor-
als and the rights of religious people on the one hand, and the advertising company’s right to freedom of
expression on the other. Additionally, the ECtHR considered the domestic courts had shown insufcient
reasoning as to why the advertisements were judged contrary to public morals. Insufcient reasoning was
also cited when a Polish court indicted the popular singer Doda, in Rabczewska v. Poland (No. 8257/13,
15 September 2022). The applicant had been ned for offending the religious feelings of others through
publicly insulting the Bible, when she said that it was written by drunk people high on weed. She claimed
she was being humorous and using metaphorical language. The ECtHR concluded this “did not amount to
an improper or abusive attack on an object of religious veneration, likely to incite religious intolerance or
violating the spirit of tolerance” (64), and therefore Poland had overstepped its margin of appreciation.
A year before the common law offenses of blasphemy and blasphemous libel were abolished in En-
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32
gland and Wales, a member of a Christian group sought to bring a private prosecution against the producer
of the satirical musical Jerry Springer: The Opera and the Director General of the BBC for broadcasting
the same show, see Green, R (on the application of) v. City of Westminster Magistrates’ Court & Ors (High
Court of England and Wales, [2007] EWHC 2785, 5 December 2007). After the District Judge’s refusal
to issue the summons, Mr Green had applied for a judicial review of the District Judge’s decision; yet, the
High Court refused him leave to appeal, agreeing with the lower court’s conclusion that “no jury, correctly
directed as to the law, could properly convict,” given that to qualify for the offense of blasphemous libel
“the publication must be such as tends to endanger society as a whole, by endangering the peace, depraving
public morality, shaking the fabric of society or tending to cause civil strife” (11). Although the second half
of the show was set in Hell and contained religious irreverence and profanity, the court recognized the target
of the satire was the Jerry Springer Show rather than the Christian faith.
Blasphemy aside, foul language as such can also become the object of court action. In Constantin Film
Produktion v. EUIPO (C-240/18 P, 27 February 2020), the appellant company took their case to the Court
of Justice of the European Union after the European Union Intellectual Property Ofce refused to grant
EU trademark protection to the phrase “Fack Ju Göhte” (translated in English as “Fuck You Goethe”), on
the grounds it infringed accepted principles of morality. Constantin Film contested that the phrase should
be perceived as a joke and the decision was annulled. An analogous case from the United States is Iancu
v. Brunetti (588 U.S. __, 24 June 2019), where – similarly to Matal v. Tam discussed in section II.1 – the
Supreme Court upheld an appeals court’s ruling that the prohibition of “immoral” or “scandalous” trade-
marks under the Lanham Act amounted to unconstitutional viewpoint discrimination. This case in particular
revolved around the trademark FUCT (“equivalent of the past participle form of a well-known word of
profanity”), which fashion designer Erik Brunetti had sought to register for his clothing brand.
Remaining in the U.S. and on the subject of obscene language, it is also important to mention the land-
mark “Seven dirty words” case, which conrmed the state’s ability to prohibit obscene language from being
broadcast on the radio or TV during certain times of the day in order to protect children. In FCC v. Pacica
(U.S. Supreme Court, 438 U.S. 726 1978), an American radio station had received a letter of reprimand by
the Federal Communications Commission (FCC) after broadcasting comedian George Carlin’s swear-lled
monologue as part of a discussion on societal attitudes towards language. The letter made clear that the
agency would ne Pacica if it received other complaints. Carlin’s monologue was broadcast at 2pm and a
member of the group Morality in Media complained this was inappropriate, given children would be avail-
able to hear the broadcast, as he purported his own child had. The question the Court had to consider was if
the FCC’s power to sanction a broadcaster was consistent with the First Amendment. The Court narrowly
upheld the FCC’s authority to restrict such broadcasts and considered a lower level of First Amendment
protection should apply to broadcasting, as children should be safeguarded from “indecent” speech and not
come across such programming unawares during the daytime (for a critical assessment of the impact of
Pacica on broadcast journalism, see Punnett and Russomanno 2018).
With the exception of FCC v. Pacica, all of the decisions mentioned above ultimately adopt a
speech-protective stance. The following three cases, instead, resulted in the curtailing of allegedly blas-
phemous or indecent content. Turning rst to protecting religious sensitivities, the ECtHR was unusually
restrictive in its early approach. This is apparent in the controversial judgment Otto Preminger-Institut v.
Austria (No. 13470/87, 20 September 1994), involving a cultural institute which ran a cinema and promoted
the arts. The case concerns the seizure and destruction of a satirical lm set in Heaven (Das Liebeskonz-
il), where leading gures from Christianity, Judaism and Islam – including God and Mary – are depicted
as inrm, simple-minded and unprincipled. Following complaints from the Roman Catholic Church, the
manager was charged with “disparaging religious doctrines.” The Austrian courts considered the lm an
abusive attack on the religion of most of the Tyrolean public. The merit of the lm as a piece of art or its
value as a contribution to public debate was deemed insufcient to outweigh the potential offense, with the
ECtHR judging the national authorities better placed to appreciate this. The lm was seized before it could
be shown, and the high protection warranted by satirical artistic expression (which, as later stated in VBK,
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33
“naturally aims to provoke and agitate”) was not considered as important as the protection of religious
feelings guaranteed by Article 9 of the European Convention on Human Rights. Additionally, the ECtHR
considered the seizing was necessary to protect public order and preserve religious peace, a highly unlikely
reaction to a lm which people could choose not to see (see also Lewis 2017).
Keeping with the theme of religious peace but turning to more recent Russian jurisprudence, a popu-
lar video blogger was convicted of offending religious feelings and inciting hatred toward a social group
through the publication of YouTube videos in the Ruslan Sokolovsky case (Supreme Court of Russia,
1-131/2017, 14 February 2018). In one video he was seen playing Pokémon Go in a church whilst ques-
tioning the existence of Jesus and the Prophet Muhammed. He claimed the video was a response to the law
prohibiting playing the game in places of worship. In the video, 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 insulting the feelings of religious believers, 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. On appeal, the court upheld the conviction of incitement to hatred and offense of religious feelings
but reduced his suspended sentence.
Lastly, the Indian Supreme Court Court case Tuljapurkar v. State of Maharashtra (6 SCC 1, 14
May 2015) focused on the poem “I met Gandhi,” published by a magazine in 1994, which the appel-
lant described as a satirical and bold critique on those who do not follow the Gandhian ways of life.
Rebutting the appellant’s references to freedom of expression under Article 19 of the Indian Constitu-
tion and Article 10 of the European Convention on Human Rights, the Court held that the poem falls
within the realm of the offense of obscenity. As argued in Mr Nariman’s amicus curiae, the poem
would not have been obscene had it referred to an ordinary man, but its mentions of Mahatma Gand-
hi enhance the perception of obscenity. However, the publisher’s apology and the passage of time
(20 years) meant the appellant was discharged. This case illustrates how the passing of time can miti-
gate material which may have been considered extremely offensive nearer the time of Gandhi’s death.
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III. Conclusion
Despite touching upon several different themes and legal frameworks, the judgments discussed in Sec-
tion II point toward some recurring international trends concerning humor and free speech, especially
within liberal democratic contexts.
● First, particular attention is usually placed on humorous incongruity (Little 2011)
– namely the implausibility of the ideas evoked by the contested joke, which would prevent a
reasonable audience from interpreting said joke as a factual defamatory statement (see Hustler
v. Falwell or Nikowitz v. Austria), as an actual threat (Chambers v. DPP) or as an unfair use of
intellectual property (Mercis c.s. v. Punt.nl). By contrast, the level of incongruity can also be
deemed insufcient to reasonably exclude a harmful interpretation (Le Roux v. Dey). Accord-
ing to the General Theory of Verbal Humor – later also extended to various forms of non-verbal
humor –, incongruity can also be conceived of as the distance or contrast between the “scripts”
(i.e., concepts or scenarios) that are humorously conjured within a given joke (Attardo 2017).
● While incongruity may undermine or even reverse the (potentially harmful) literal interpre-
tation of a contested joke, the elusiveness of humor can also be used to convey a harmful message
in an implicit way, thus prompting courts to read between the lines. This is the case, for example, in
McAlpine v. Bercow, revolving around the “innuendo meaning” of the expression “*innocent face*”
(an instance of what Simpson 2003 calls satirical attenuation or “undercoding,” as opposed to exag-
geration). In M’Bala M’Bala v. France, the ECtHR’s analysis of the disputed comedy sketch con-
cluded that “the taking of a hateful and anti-Semitic position, hidden under the guise of an artistic
production, is as dangerous as a frontal and abrupt attack” (40); likewise, in its Knin cartoon deci-
sion, the Meta Oversight Board stressed that hate speech standards also apply to “implicit [e.g. met-
aphoric] references to protected groups [...] when the reference would be reasonably understood.”
● Another recurring point concerns the importance of context in the interpretation of hu-
mor – with reference to the political, socio-cultural and historical circumstances in which the dis-
puted expression was uttered or circulated. An indicative case in this respect is Leroy v. France,
where the ECtHR upheld the conviction against the applicant because the cartoon was pub-
lished “on September 13th [2001], when the whole world was still shocked by the news” and
“in a politically sensitive region [: the French Basque Country]” (45). With special regard to
context in a chronological sense, another example of a joke apparently uttered too soon is the
“Charlie Coulibaly” quip at the center of Tribunal de Grande Instance decision from 18 March
2015, which – as stressed by the Court – was posted “at a time when public opinion was still
deeply upset by the attacks committed shortly before and when the victims were not yet buried”
(see, by contrast, The State v. Cassandra Vera, where the Supreme Court of Spain overturned
the conviction also in light of the historical distance between the joke and the event it refers to).
● When assessing a joke’s status as protected speech, a widely accepted principle is that
courts should refrain from restricting humorous expression that is merely offensive on a subjective
level but should only do so when the joke is likely to inict an objective harm on its target. This
is particularly evident in hate speech cases, where distasteful or disparaging jokes were ultimately
considered as protected expression as they were not deemed to amount to incitement to hatred
(e.g. Ward v. Quebec, the Nadine Morano case, or Bropho v. Human Rights and Equal Opportu-
nity Commission). This being said, some provisions deviate from this general distinction between
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
35
(lawful) offense and (unlawful) harm, as exemplied by material deemed unlawful because of its
“grossly offensive” nature as imposed by the Communications Act 2003 in the United Kingdom.
● With respect to dignitary harm in particular, special attention is often paid to the target’s
status, as public gures are typically expected to display a higher level of tolerance towards ridi-
cule. Relevant examples include, inter alia, Dickinson v. Turkey, Telo de Abreu v. Portugal, Zachia
v. Center of Professors and Pando de Mercado v. Gente Grossa SRL (all of which concern satirical
criticism of political gures), as well as Sousa Goucha v. Portugal and Ward v. Quebec (where the
disputed jokes are aimed at other kinds of public gures). In contrast to that, a lower threshold of
protection usually applies to humor targeting non-public gures (in defamation cases such as Le
Roux v. Dey) and vulnerable minority groups (as in the hate speech cases discussed in section II.2).
● Lastly, and following up on the previous point, courts tend to grant special protection to humor
when it is deemed to contribute to public interest debates. This criterion is often used convincingly
by courts – see, for instance, Instytut Ekonomichnykh Reform, TOV v. Ukraine (where the “public
interest” standard plays an important role in the ECtHR’s nding of Article 10 violation) or Canal
8 v. France (where, on the contrary, the lack of any contribution to public debates is considered an
aggravating factor). However, from a humor studies perspective, distinguishing too rigidly between
publicly relevant and “gratuitous” forms of humor is problematic – rst of all, the line between these
two categories is often arbitrary and context-dependent; moreover, such an approach could penalize
forms of humor that might still be legitimate, despite arguably lacking an explicit socio-political
message (see Capelotti 2018: 268, or Nugraha 2021 with particular reference to Z.B. v. France).
While the trends listed above suggest a certain level of coherence in humor-related jurisprudence from
different regions, some key aspects of humorous communication are often treated inconsistently – even
within the same given judicial system. In particular, in Godioli, Young and Fiori (2022) we stressed the
importance of reaching a more systematic approach towards the following dimensions: (1) The rhetorical
or semiotic mechanisms underlying the contested verbal, visual or multimodal jokes; (2) Intertextuality,
namely the dialogue between the contested expression and previous texts by means of allusion, commen-
tary or parody; (3) The role played by a broad range of contextual factors, including inter alia the conven-
tions of a given humorous genre, the prior conduct of the speaker, as well as the specic socio-political
circumstances in which humor is produced and circulated; (4) Mapping out the possible outcomes of the
interpretive process, e.g., the possibility of construing the same joke as disparaging or non-disparaging; (5)
The actual or presumed reception of the disputed expression within a given audience. The examples below
briey illustrate in what ways each of those dimensions is not always paid sufcient attention:
(1) Rhetorical or semiotic mechanisms: Courts often conceive humor in terms of exaggeration
or hyperbole – in some cases, these latter terms are even used as synonyms of humor at large (“I
use parody, satire, humor, caricature, rhetorical hyperbole, and other references to ‘humorous’
statements synonymously,” Hamilton v. Prewett, concurring opinion by J. Najam, our emphasis;
see also Todd 2016: 56-63). However, not all humor necessarily exaggerates reality – it can also
resort to subtle allusion through satirical undercoding (as with *innocent face* in McAlpine v.
Bercow), combine incongruous ideas by means of metaphor, or create a mirror opposite of reality
through irony or carnivalesque reversal. These alternative mechanisms are not always assessed in
a satisfactory way in humor jurisprudence, as shown for instance by Hanson v. Australian Broad-
casting Corporation (where the parody song was interpreted as “patently defamatory” rather than
a codied form of carnivalesque degradation), Palomo Sánchez v. Spain (in which the metaphoric
nature of the disputed cartoon was not properly acknowledged by the Grand Chamber’s majority),
or Z.B. v. France (where the claim that the words “I am a bomb” cannot “reasonably refer to the
beauty of the child” seems to neglect the metaphoric sense of the expression).
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
36
(2) Intertextuality: In Eon v. France, the national courts had questionably interpreted the of-
fensive words “Casse toi pov’con” in the rst degree, i.e. as though they were supposed to be taken
at face value, thus denying the importance of the intertextual dimension – namely the fact that the
words had rst been uttered by the President himself on a previous public appearance. However,
the ECtHR convincingly argued that the “repetition of the phrase previously uttered by the Pres-
ident cannot be said [...] to have amounted to a gratuitous personal attack against him” (57). Par-
ticularly, Linda Hutcheon’s (1985) denition of parody as “repetition with critical distance” seems
particularly relevant in this respect.
(3) Context: As argued in Section II.3, the Z.B. v. France judgment does not seem to fully
engage with some crucial contextual factors – namely the specic communication setting (the fact
that the T-shirt was only worn once and only seen by two adults working in a nursery school), the
speaker’s prior ethos (i.e., the applicant’s lack of ties with any terrorist movement or ideology), and
the genre that the joke can be ascribed to (post-9/11 humor by comedians from a Muslim back-
ground, often characterized by the ironic use of Islamophobic tropes).
(4) Possible outcomes of the interpretive process: With particular regard to the intersection
of humor and dignitary harm, Godioli, Young and Fiori (2022) outlined a distinction between
three main outcomes – disparaging humor (aiming to insult and vilify the rst-degree target of
the joke), sarcastic disparagement (e.g. using racist or sexist tropes in the second degree, as a way
to denounce someone else’s racism or sexism) and taboo-breaking humor (where the offensive
component is supposedly not meant to disparage its rst-degree target, but rather to question or
disrupt the perceived taboo status of a given topic, as is often the case with disaster jokes). This
typology can be further complemented through the notion of jocular insults, i.e. playful insults
geared towards collective humorous experience rather than offending the target, as with comedy
roast battles (Dynel 2021). Some of the decisions summarized in Section II implicitly opt for one
univocal interpretation of the disputed joke, without problematizing the preferred interpretation or
comparing it with other plausible outcomes. For example, the jokes at the center of Z.B. v. France
as well as the Russian cases of Idrak Mirzalizade and Snob.Ru were classied as disparaging hu-
mor, but could also be seen as instances of sarcastic disparagement (this is all the more glaring in
the Russian cases); in Sinkova v. Ukraine, the taboo-breaking angle – questioning the sacred status
of a national monument to provoke a political discussion – was neglected in favor of a disparaging
interpretation; contrastingly, the majority in Ward v. Quebec privileged the taboo-breaking reading
of the comedian’s ableist joke, thus sidelining its disparaging aspects. Certainly, the lines between
these categories are inherently blurred, and humor interpretation is always bound to retain a sub-
jective component. Yet, a closer engagement with the different interpretive options afforded by a
given joke (possibly in light of a shared terminology such as the one sketched above) could set the
basis for a more consistent approach to the subjectivity of humor.
(5) Actual or presumed reception: When assessing liability for the effects of a disputed expres-
sion, courts usually set out to reconstruct how said expression could be received by a “reasonable”
audience. However, “deciding who the ‘right-thinking’ or ‘reasonable’” members of society might
be is often “far from obvious” (McDonald 2016: 187); and in particular, the elusive (and often emo-
tionally charged) nature of humorous communication might make it all the more necessary to prob-
lematize the scope and limitations of the reasonableness standard. In Ward v. Quebec, for instance,
the majority concluded that “a reasonable person aware of the relevant circumstances would not
view [Ward’s jokes] as inciting others to vilify [Gabriel] or to detest his humanity on the basis of a
prohibited ground of discrimination;” moreover, in their view, “a reasonable person could not view
the comments made by W., considered in their context, as likely to lead to discriminatory treatment
of G.” Yet, as highlighted by the dissenting judges, the majority’s use of the reasonableness crite-
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
37
rion is too abstract in this case, as it fails to consider the age of the target: “Childhood and early
adolescence is a formative stage of life during which time an individual’s desire to belong can of
course be deeply felt. A reasonable young person in Jérémy Gabriel’s shoes would be particularly
susceptible to the harms associated with dehumanizing comments” (174). Additionally, the major-
ity does not seem to place sufcient weight on the actual reception of Ward’s jokes, including how
it inspired further mocking by Gabriel’s schoolmates: “Because of their broad dissemination, these
harms were magnied when Jérémy Gabriel’s classmates repeated Mr. Ward’s jokes, teasing him
and mocking him repeatedly at school” (196). From a literary-theoretical standpoint, the dissenting
judges decided not to focus exclusively on a generic reasonable audience, but rather on the “pre-
sumed addressee” (Schmid 2013) – namely the public among whom the author could reasonably
expect their work to be circulated, including Gabriel himself and his schoolmates. Irrespective of
differing opinions on the case, the majority’s reasoning would have benetted from a more nuanced
application of the reasonableness standard.
Each of the dimensions outlined above comes with specic challenges, as well as presenting new chal-
lenges specically related to the evolution of humorous communication in the digital – or “post-digital”
(Fielitz and Thurston 2018) – age. For example, how can courts deal with the complex intertextuality of
internet memes, where the same template could take on different cultural or political meanings depending
on the forum in which it circulates (Shifman 2014, Greene 2019)? How is it possible to distinguish be-
tween disparaging humor and sarcastic disparagement, within digital environments dominated by “comic
confusion” and “ironic ambiguity” (Holm 2021)? Who is the reasonable reader or the presumed addressee,
in a time of viral circulation and growing fragmentation between “irony-laden subcultures” (Nagle 2017)?
While none of these questions is likely to yield denitive answers, some useful insights might result from a
closer interaction between legal scholarship and practice on the one hand, and humor research on the other.
We hope that the present paper – in addition to identifying general trends and recurring issues in humor
jurisprudence – has suggested some of the potential benets of such cross-disciplinary encounters.
SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
38
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