This post originally appeared on Strasbourg Observers and is reproduced here with permission and thanks.

I. Introduction

As famously stated in Vereinigung Bildender Künstler v. Austria, ‘satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care’ (para. 33). In later cases, the Court stressed that this principle does not only apply to artists, but also to ‘anyone else’ who might choose to express their views through satire (Eon v. France, para. 60). At the same time, satire and other forms of humour are subject to the same conditions and restrictions outlined in Article 10 (2) ECHR, including ‘in the interests of national security […], for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others’.

Based on the three-part test mandated by Article 19 ICCPR, any such restriction should (i) be provided for by law, (ii) pursue a legitimate aim, and (iii) be necessary and proportionate to the aim pursued. The third step can be especially complicated in the case of humour, mostly due to its non-literal nature and high reliance on context. The judicial challenges posed by humour are discussed in detail in our recently published toolkit What’s in a Joke? Assessing Humor in Free Speech Jurisprudence (Godioli, Jacques, Young and Matamoros-Fernández 2025). Written in dialogue with experts from UNESCO, the ECtHR and the ACHPR among others, the toolkit aims to assist the judiciary in tackling these challenges, combining human rights law with insights from the humanities and social sciences.

The present contribution analyses humour-related jurisprudence from the ECtHR based on the approach adopted in the toolkit, with particular regard to the role of context. All cases were retrieved through the database of the Forum for Humor and the Law (ForHum), which features a comprehensive repository of humour jurisprudence from across the globe. At the moment, the database lists a total of 113 ECtHR rulings where humour-related keywords are mentioned (please see Fig.1 below for more details on the keywords). In the following paragraphs we will only discuss a smaller subset of particularly representative examples, which will be divided in four groups, following the most frequent grounds for restriction outlined by Article 10 (2) ECHR – namely reputation, public morals, prevention of disorder, and rights of others (with special regard to advocacy of hatred and incitement to discrimination, hostility and violence). After reviewing the Court’s approach in these respective groups, we will zoom in on the role of context from an interdisciplinary perspective.

Fig. 1: Overview of humour-related keywords mentioned in ECtHR cases (by Jennifer Young)

II. Humour at the ECtHR: An overview

1. Protection of reputation

In Lingens v. Austria (1986), the Court established that those who choose to be in the public eye must display a high degree of tolerance to criticism and ridicule. This principle is exemplified in Vereinigung Bildender Künstler v. Austria (2007) which centres on a painting of public figures, portrayed as naked and in sexual positions. Those depicted include a Cardinal, Mother Teresa and the former general secretary of the Austrian Freedom Party Mr. Meischberger, who was granted an injunction prohibiting further display of the painting. The ECtHR considered the injunction was a breach of the artist’s Article 10 right (freedom of expression). The Court held that, as a politician, Mr. Meischberger should have a higher tolerance of criticism; moreover, the artistic and satirical nature of the disputed work should have been given more weight by the national courts.

Since then, the ECtHR has further developed case law to protect satirical expression criticising political figures. Examples include Eon v. France (2013), where the Court found that the prosecution of a protester, who had used the tools of humour to criticise the President, was disproportionate to the aim pursued and unnecessary in a democratic society. In Telo de Abreu v. Portugal (2022) the Court considered that a series of cartoons which criticised the local government – examined in light of their context – did not amount to defamation of a municipal councillor, but rather constituted political speech in the form of satire. According to the ECtHR, ‘by focusing excessively on the infringement of [the councillor’s] right to reputation, the domestic courts ended up decontextualising the caricatures and interpreting them in a way that did not take sufficient account of the political debate that was taking place’ (para. 44). As a consequence, the defamation conviction and the fine imposed on the applicant were found to breach his right to freedom of expression.

Context was also important in Sousa Goucha v. Portugal (2013) where the applicant – an openly gay TV host – lodged a criminal complaint for defamation and insult after a television comedy show referred to him as ‘The best Portuguese female TV host’. One issue the court had to decide was whether the State had achieved a fair balance between the applicant’s right to protection of his reputation (Article 8) and the broadcaster’s right to freedom of expression. The ECtHR found no violation of Article 8, assessing the comment within the context of the comedy show’s ‘playful and irreverent style’ and ‘usual humour’. It considered the comments jocular banter rather than a criticism of the applicant’s sexual orientation (paras 53-54).

2. Protection of public morals

The landmark judgment Handyside v. United Kingdom (1976) stated that the right to freedom of expression applies ‘not only to “information” or “ideas” that are favourably received or regarded as inoffensive […], but also to those that offend, shock or disturb the State or any sector of the population’ (para. 49). This establishes strict boundaries to ‘public morals’ as a legitimate ground for speech restriction.

The Court observes this in several cases concerning religiously offensive humour and satire. Examples include Sekmadienis Ltd. v. Lithuania (2018), where an advertising campaign used religious look-alike models; Gachechiladze v. Georgia (2021), concerning a condom producer’s illustrated packaging with assorted designs, including religious figures and messages supporting the LGBTQ+ community; and Rabczewska v. Poland (2022), where a famous singer implied that the Bible was written by drunk people high on weed. In all cases, the ECtHR found a violation of the applicants’ Article 10 rights. Generally, also in light of the context in which the contested material was circulated, the Court decided the national courts had not struck a fair balance between the protection of public morals (and/or the rights of religious people) with the applicants’ right to freedom of expression.

3. Prevention of disorder or crime

In cases concerning the intersection of provocative humour and political protest, contextual analysis also plays an essential role. Mostly the ECtHR has adopted a speech-protective stance, as exemplified in Handzhiyski v. Bulgaria (2021). The applicant was a politician who had placed Santa Claus regalia on a statue of a former political leader and founder of the main government coalition party. Mr Handzhisyski was found guilty of petty hooliganism and fined. The ECtHR found this violated his Article 10 rights, and highlighted the importance of context:

In the present case, the context clearly suggests that the intention behind the applicant’s act was to protest against the government of the day and the political party which supported it, in the context of a prolonged nation-wide protest against that government, rather than to condemn Mr Blagoev’s historical role or to express contempt towards him […]. It can thus hardly be said that his act was meant to show disdain for deep-seated social values. This is further confirmed by the fact that it appears that the reactions to it were mixed. (Handzhiyski v. Bulgaria, para. 56)

The ECtHR usually follows similar lines in other cases regarding satirical protest, such as Tatár and Fáber v. Hungary (2012) and Dianova and Others v. Russia (2024). However, an exception to the ECtHR’s speech-protective stance can be seen in Sinkova v. Ukraine (2018), which will be discussed later in this paper.

4. Advocacy and incitement

In cases about advocacy of hatred and incitement to discrimination, hostility and violence, the Court can look to the UN’s Rabat Plan of Action (2012), which suggests six criteria to assess hateful expression – namely the (socio-political) context of the expression, the speaker’s status, their intent, the content and form of the message, the extent of dissemination, and the likelihood of harm.

Similar criteria have been used by the Court since before the publication of the Rabat Plan. An example is Féret v. Belgium (2009), involving Islamophobic slogans and jokes distributed by the far-right party National Front, of which Féret was chairman. In upholding Féret’s conviction, the Court paid particular attention to the socio-political context, as the material was published during election time, where ‘the impact of racist and xenophobic discourse becomes greater and more damaging’ (para. 76). Moreover, they considered the speaker’s status as a prominent political figure, whose responsibility to democracy was therefore higher.

The extent of dissemination was explicitly foregrounded in Canal 8 v. France (2023), revolving around two clips from a TV show – the first segment trivialised degrading treatment of women, while the latter featured a series of telephone prank calls targeting private individuals and using homophobic stereotypes. Eventually, the Court unanimously denied Article 10 protection to the broadcasting company due to a series of factors, including the fact that the two contested clips had been watched respectively by 1,500,000 and 740,000 viewers (paras 63 and 70).

To conclude our brief overview, both the socio-political context and the speaker’s intent played an important part in Petrov v. Russia (2024). Here a comedian parodied a homophobic pro-government video which sought to persuade people to support a constitutional amendment to define marriage as solely heterosexual. The parody took the form of a ‘gay hunt’ in which a father and son, armed with rifles, hunted gay men attributed with stereotypical behaviour. Mr. Petrov, an LGBTQ+ activist, argued that the parody video amounted to incitement to discrimination and affected the private lives of individual members of the LGBTQ+ community. However, the Court concluded that the disputed stereotypes should be seen in the context of a sarcastic video which actually satirised homophobia. Moreover, considering the broader context of a national vote, the Court stressed that satire about topical issues can play an important role in the open discussion of matters of public concern (para. 56).

III. Humour in Context

As outlined above, context plays an important role in most (if not all) humour-related cases adjudicated by the ECtHR, especially when determining the necessity and proportionality of a given restriction. But what is ‘context,’ exactly? One of the main contentions of the What’s in a Joke? toolkit is that a multi-layered understanding of context is essential in order to guarantee a fair assessment of humour in free speech cases. In this respect, valuable insights can be derived from interdisciplinary research on humour. In particular, over the last decade, a growing body of scholarship has shed new light on what linguists call the (socio)pragmaticsof humour – namely on how social and cultural contexts shape the production and interpretation of humorous communication, both offline and online (Bell 2015, Tsakona 2020, Yus 2023, Linares Bernabéu 2023). Moreover, literary theorists have investigated the role of contextual cues in the reconstruction of the ethos and intentions underlying an ironic or humorous expression (Korthals Altes 2014). Building on this previous scholarly work, our toolkit identifies ten contextual dimensions that are particularly relevant to humour interpretation. These dimensions are summarised below, with examples from ECtHR jurisprudence.

1) Socio-political circumstances: See, for instance, Féret v. Belgium, where the majority – as discussed in the previous section – stressed that the expression was circulated during election time, where ‘the impact of racist and xenophobic discourse becomes greater and more damaging’ (para. 76).

2) Communicative setting: This refers to the concrete setting in which the disputed humorous expression has taken place – including for example the physical environment, the participants and the relationship between them, as well as their shared situational knowledge (Tsakona 2020). For instance, in one of the two cases bundled under Dianova and Others v. Russia (2024), the applicants had been arrested whilst in a Moscow Park making a satirical film about Vladimir Putin, under accusations of participating in an unauthorised public event. However, in light of the communicative setting of their satirical performance, they argued that this was not a public or political event but rather the making of a film. The ECtHR found that the applicants’ conviction amounted to a violation of Article 10.

3) Power relations between the speaker and the target: With regard to the target’s status, lower protection is usually granted to potentially harmful humour aimed at private individuals or vulnerable minority groups (as in Canal 8 v. France). As for the speaker’s status, the Court has emphasised this aspect in cases where the contested joke was uttered by a high-profile politician, whose words are likely to have a greater impact – see, for example, Féret v. Belgium and Le Pen v. France (2017).

4) Purpose of communication: In Vereinigung Bildender Künstler v. Austria, the ECtHR stressed that any interference with satire should be examined with particular care, due to the combination of artistic and political purposes (‘artistic expression and social commentary’, para. 33). Conversely, humour that is primarily meant for entertainment or commercial purposes is generally granted a lower level of protection (Canal 8 v. France).

5) Extent of dissemination: As detailed in section II.4, the Court’s decision in Canal 8 v. Francewas also based on the widespread circulation of the disputed clips, which made their potential impact particularly harmful.

6) Co-textual cues: The verbal or non-verbal hints surrounding the humorous expression and guiding its interpretation. For instance, in M’Bala M’Bala v. France (2015), concerning an antisemitic sketch by a comedian, the Court relied on the comedian’s preamble to confirm the intent behind the sketch: ‘The applicant [had announced] in the preamble his desire to “do better” than during a previous performance, which had allegedly been described as “the biggest anti-Semitic meeting since the last world war”. The judges considered that this scene, presented by the applicant as a “quenelle”, […] was addressed to people of Jewish origin or faith as a whole’ (para. 34).

7) Intertextuality: The dialogue between the contested humorous expression and previous expressions, by means of allusion or parody. A case in point is Eon v. France, where the applicant had waved a placard reading ‘Get lost, you sad prick’ while the French President’s party was passing by. The placard was actually echoing a phrase that the President himself had uttered at a previous public event. The national courts interpreted the offensive words as if they had been intended literally by the applicant, and issued a warning against the applicant in the form of a suspended fine. However, the ECtHR emphasised that the ‘repetition of the phrase previously uttered by the President cannot be said […] to have amounted to a gratuitous personal attack against him’ (para. 57).

8) Prior ethos: The perception an audience already has of the speaker on the basis of their reputation, previous deeds, or generally known character traits (Korthals Altes 2014), which might therefore guide the public’s interpretation of the disputed expression. In a legal context, this concept partly overlaps with prior conduct, as taken into account in cases like M’Bala M’Bala v. France (‘at the material time, [the applicant] had already been convicted for proffering a racial insult’, para. 37).

9) Audience reactions to the disputed expression, i.e. the ways in which the audience’s response sheds light on the contextual functioning of a given joke. This dimension is well illustrated by M’Bala M’Bala v. France, where the public’s response to the sketch is used to support the Court’s interpretation: ‘The reactions of members of the audience showed that the anti-Semitic and revisionist significance of the sketch was perceived by them (or at least some of them), as it then was by the domestic courts’ (para. 37).

10) Genre: The discursive forms or traditions which the expression may be ascribed to, based on its content, style, and its dialogue with a given set of conventions. An example of this could be the ‘irreverent style’ of the particular genre of TV comedy show discussed in Sousa Goucha v. Portugal (53-54).

Compared to the other contextual dimensions outlined above, genre tends to be examined less consistently in humour-related jurisprudence. An example is Sinkova v. Ukraine (2018), where a majority of four judges to three upheld the imposition of a three-year suspended prison sentence for a satirical performance taking place at a war memorial. Activist Anna Sinkova had fried eggs on the flame of the Tomb of the Unknown Soldier in Kyiv as a protest against the waste of natural gas and the poor living conditions of veterans, and later posted the video on the internet. In the judgment, the majority argued that ‘there were many suitable opportunities for the applicant to express her views […] without breaking the criminal law and without insulting the memory of soldiers who perished and the feelings of veterans’ (para. 110). However, this claim seems to overlook the importance of provocation and exaggeration in a widespread form of activism, which combines absurdist pranks with performance art. This genre is variously referred to as ‘humorous political stunt’ (Sorensen 2016) or ‘laughtivism’ (Popovic & McClennen 2020), and it typically amounts to peaceful satirical protest. As pointed out by commentators, these strategies are particularly vital to political activism ‘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).

Likewise, some genre-related considerations seem relevant in another case, namely Z.B. v. France (2021). The judgment revolves around a joke printed on a T-shirt, which the applicant gave as a birthday present to his three-year-old nephew in September 2012. The T-shirt bore the words ‘Jihad, born on 9/11’ and ‘I am a bomb’. The child was born on September 11th, 2009, and his name is in fact Jihad (which is a common Arabic name meaning ‘effort’ or ‘struggle,’ not necessarily ‘holy war’). Crucially, the term ‘bomb’ can also mean ‘good-looking’ in French. In the domestic proceedings, the applicant and his sister (Jihad’s mother) were charged with glorification of terrorism, and they both received a fine alongside a suspended prison sentence. In upholding this decision, the ECtHR highlighted that the facts took place six months after a terrorist attack at a French Jewish school, where three children and one teacher were killed, which made the joke particularly inappropriate.

However, other contextual factors could perhaps have been reviewed more extensively. With regard to the extent of dissemination, the First Instance Court of Avignon – upon acquitting Z.B. – had aptly ascertained that the T-shirt was only worn ‘on one occasion’ which was ‘limited in time (the afternoon of September 25th) and space (the nursery class)’, and ‘only two people [adults] had been able to see the words on the T-shirt while dressing the child’. Nevertheless, these aspects were sidelined when the decision was overturned by the Court of Appeal. Moreover, concerning prior ethos, the ECtHR concluded that ‘the fact that the applicant has no ties with any terrorist movement whatsoever, or has not subscribed to a terrorist ideology, cannot attenuate the scope of the disputed message’ (para. 60). Yet, the speaker’s history and ideological profile can play an important role in the assessment of intent as prescribed by the Rabat Plan of Action, and therefore should be particularly relevant with respect to criminal charges like glorification of terrorism.

Most importantly, with regard to genre, the contested T-shirt can be placed in dialogue with a sub-genre of dark humour often used by comedians from a Muslim background after the 9/11 attacks, relying on the ironic use of Islamophobic tropes such as ‘all Muslims are terrorists’. Shortly after 9/11, for example, British stand-up comedian Shazia Mirza famously 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 glorification or trivialisation of terrorism, was meant as a sarcastic critique of mounting Islamophobia after the attacks (Aidi 2021). Similarly, Z.B.’s T-shirt can also be construed as an attempt (however distasteful) to make fun of the Islamophobic cliché casting Muslims as Jihadists until proven otherwise, let alone a family where a child is named Jihad. This would also call for reconsidering the idea (shared by the appellate court and the ECtHR) that the joke does not contribute in any way to public debate.

In conclusion, while ‘context’ plays an important role in humour-related ECtHR case law, some aspects (such as genre) arguably deserve more attention when examining the necessity and proportionality of a given restriction. More generally, our discussion of judgments like Sinkova v. Ukraine and Z.B. v. France showed how judicial reasoning could benefit from a systematic theory of context – namely a comprehensive mapping of the different contextual dimensions relevant to the assessment of a disputed expression. The relevance of each dimension and the hierarchy between them may well vary depending on the specific case; however, developing a more consistent approach to the multi-layered nature of context seems highly desirable in freedom of expression jurisprudence, both within and beyond the ECtHR. This is even more the case when humour is involved, due to humour’s special dependence on implicit communication and contextual knowledge. As suggested above, a closer dialogue between judicial practice and humour scholarship would be particularly useful in this respect.