Last Updated on June 7, 2022 by LawEuro
Information Note on the Court’s case-law 263
June 2022
Patrício Monteiro Telo de Abreu v. Portugal – 42713/15
Judgment 7.6.2022 [Section IV]
Article 10
Article 10-1
Freedom of expression
Criminal fine for defamation of an elected representative, imposed on a political opponent for publishing political cartoons on his blog targeting the members of the local council as a whole: violation
Facts – The applicant was sentenced to a criminal fine on a charge of aggravated defamation for damaging the honour and reputation of Ms E.G., the “right-hand woman” of the mayor of a municipality, on account of the publication on his blog of three cartoons by the artist A.C..
Law – Article 10:
The domestic courts had acknowledged that the applicant was a political opponent of Ms E.G. and that the cartoons in question constituted political satire. Nevertheless, they found that the limits of acceptable criticism had been overstepped, since Ms E.G. had been portrayed as a sow with sensual attributes. In the courts’ view, the cartoonist had sought to imply that she was a debauched woman and that she was involved in a relationship with the mayor of the municipality, who was depicted as a donkey and was always next to her in the cartoons. The applicant had been aware of the pejorative image of Ms E.G. conveyed by the cartoons but had nevertheless published them on his blog, thereby contributing to damaging her honour and reputation.
The Court disagreed with this analysis. Although the domestic courts had correctly found that the case called for a balancing exercise between two competing rights, namely the applicant’s freedom of expression and Ms E.G.’s right to respect for her private life, they had omitted to take into consideration the context of the cartoons.
Firstly, the three cartoons in question had been part of a series of previously published cartoons by the artist A.C. which satirised the local political life of the municipality.
Secondly, the cartoonist had not sought to insinuate that an intimate relationship existed between Ms E.G. and the mayor of the municipality by representing them side by side, since none of the cartoons had shown the characters kissing, touching or communicating with each other.
It was true that the cartoons echoed certain regrettable stereotypes relating to women in power. However, the applicant’s accompanying comments showed that his actual intention in publishing the cartoons was to highlight the political satire expressed through caricature and, indirectly, to criticise the municipal leadership, in his capacity as a political opponent and a member of the municipal assembly. The comments had not made any specific reference to Ms E.G., her political activities or her private life, still less her sexual life, nor had they contained any insulting or stigmatising remarks about her.
By focusing excessively on the interference with Ms E.G.’s right to reputation, the domestic courts had ultimately taken the cartoons out of their proper context and interpreted them in a manner that did not take sufficient account of the ongoing political debate. Furthermore, they had not given sufficient weight to the fact that all elected representatives were necessarily exposed to this type of satire and caricature and should therefore display a greater degree of tolerance in that regard. This was especially so given that in the present case, in spite of the stereotypes used, the caricatures had remained within the limits of exaggeration and provocation that were typical of satire. Moreover, Ms E.G. was not the only figure to have been depicted undressed, as all the pigs were portrayed in the same way; the mayor of the municipality was depicted as a donkey, a clearly pejorative image. Thus, the cartoons had targeted the members of the municipal council as a whole. In sum, the domestic courts had not taken sufficient account of the context in which the applicant had published the cartoons on his blog. They had therefore not carried out a thorough balancing exercise between the rights at stake. Furthermore, they had not taken into consideration the characteristics of political satire emerging from the Court’s case-law or made any reference to the Court’s case-law on freedom of expression.
The domestic courts had also held that by using the Internet to disseminate the cartoons, the applicant had made them known to a wider audience. However, they had not analysed further the reach of the three cartoons or their accessibility, or even whether the applicant was a well-known blogger or a popular user of social media, which could have attracted the public’s attention and increased the potential impact of the cartoons. Moreover, on learning that Ms E.G. had lodged a criminal complaint against him, the applicant had immediately removed the cartoons from his blog, suggesting that he had acted in good faith.
The sentencing of the applicant to a fine of EUR 1,800, together with the joint payment of damages to Ms E.G., was manifestly disproportionate, especially as Portuguese law provided for a specific remedy for the protection of a person’s honour and reputation.
In view of the above, and notwithstanding the margin of appreciation left to the national authorities, the applicant’s conviction had not struck a fair balance between the protection of his right to freedom of expression and Ms E.G.’s right to the protection of her reputation. The reasons given by the domestic courts for the applicant’s conviction could not be regarded as relevant and sufficient. Imposing criminal sanctions for conduct such as that of the applicant in the present case was liable to have a chilling effect on satirical forms of expression concerning political issues. Accordingly, the applicant’s conviction had not been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 3,466 for pecuniary damage; finding of a violation sufficient in respect of non-pecuniary damage.
(See also Grebneva and Alisimchik v. Russia, 8918/05, 22 November 2016, Legal summary; Gheorghe-Florin Popescu v. Romania, 79671/13, 12 January 2021, Legal summary)
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