ARTICLE 19 tells Strasbourg Court to protect the freedom to joke

On 11 October 2019, ARTICLE 19 submitted a third party intervention before the European Court of Human Rights (ECtHR) in the case of Z.B. v France. The case concerns the lawfulness of the interference with the right to freedom of expression of the applicant, and specifically, of the applicant’s freedom to joke, even in bad taste.

Circumstances of the case:

The case follows the conviction of the applicant and his sister, after the applicant customised a T-shirt for his nephew (his sister’s child) with the slogan “I am a bomb!” on the front, and on the back, “Jihad, born on 11 September” (the child’s actual forename and date of birth). The child later wore the T-shirt to nursery, where it was seen by the Director of the nursery and one other adult while they were helping the child get dressed after using the bathroom. While they were acquitted by the first-instance criminal court, both the French Court of Appeal, and the subsequent judgement by the Court of Cassation, found them both guilty of the crime of glorification of homicidal crimes.

This case raises important questions about the protection of freedom of expression and the freedom to joke in a democratic society. Freedom of expression protects all forms of speech, including speech that may be considered of lower value or is downright trivial.

The use of criminal penalties for making a joke in public, however in bad taste, is likely to have a chilling effect on humour and satire about topical issues. It follows that any restrictions on freedom of expression, including the freedom to joke, must be examined with particular care to ensure that they meet the high standard of necessity demonstrated by Article 10 of the Convention.

In the submission ARTICLE 19 argues that:

  • Article 10 of the Convention is not limited to speech that is ascribed a certain political or cultural value;
  • It protects expression that may offend, shock or disturb, including the freedom to joke. Any interference with such expression must be examined with particular care;
  • Laws that seek to criminalise “apologies” of terrorism or other serious crimes pose particular problems for freedom of expression;
  • The Court should carefully examine the proportionality of the restriction on freedom of expression in the present case, and particularly whether there is any evidence of actual incitement to terrorism or the commission of other serious crimes.

Jokes ought to be recognised as jokes. This case provides the Court with an important opportunity to re-emphasise its foundational principles, and to clarify that any restriction on expression can only be justified where the high standard of necessity is met.

ARTICLE 19 encourages the Court to apply a strict test to any attempt to justify a criminal conviction of an individual for making a joke, including for a joke made in bad taste.

Thank you to Jude Bunting from Doughty Street Chamber for acting for ARTICLE 19 in the case pro bono.

Read our submission to the European Court of Human Rights.

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