Case Summary and Outcome

Sousa Goucha is a well-known Portuguese TV host who has declared his homosexuality in 2008. In 2009, during a talk show quiz a question was posed to celebrity participants, “Who is the best Portuguese female TV host?” There were four possible answers that included three women and Sousa Goucha, with the latter being the correct answer. Goucha filed criminal complaints against the TV show host, the channel, and the production company for insult and defamation. Domestic courts dismissed his complaint on the grounds that there was no intent to offend or defame.

Goucha lodged a complaint with the European Court of Human Rights (“ECtHR”) under Articles 8 and 14, alleging that the domestic courts discriminated against him due to his homosexuality and thus the State failed to protect his right to reputation. The ECtHR found that the domestic courts properly balanced the right to reputation and freedom of expression, and that there were no violations of the European Convention of Human Rights (“ECHR”).

Facts

Sousa Goucha is a well-known TV host who has worked in the media industry in Portugal for almost 40 years. In 2008, he publicly declared his homosexuality. In December 2009, at a live talk show broadcasted on national television, two celebrity guests were presented with a question, “Who is the best Portuguese female TV host?” There were four possible answers that included three women and Sousa Goucha, with the latter being the correct answer.

In 2010, Goucha lodged a criminal complaint for defamation and insult against the TV channel, the talk-show’s production company, the TV show’s host, and the directors of programming and content. The complaint alleged that his reputation and dignity had been damaged by his name having been included in the list of possible answers.

On March 2, 2011, Lisbon’s public prosecutor discontinued the proceedings on the grounds that the defendants did not intend to offend Goucha. At an unspecified date, Goucha lodged a private complaint in the capacity of a public prosecutor. On June 24, 2011, the complaint was dismissed by the Criminal Investigation Court on the basis that there was insufficient evidence of intent to defame or insult. The court’s decision was upheld on appeal by the Lisbon Court of Appeal. Specifically, the court stated that the question was posed in the context of a comedy show, that Goucha was a public figure known for being associated with the female gender in demeanor and his company, and that although the joke might have been in poor taste, it did not reach the legal threshold of defamatory or insulting speech.

Goucha filed a complaint with the ECtHR alleging a violation of Article 8 (private life) and Article 14 (prohibition on discrimination) in conjunction with Article 8. His complaint alleged that domestic courts dismissed his defamation proceedings on discriminatory grounds because of his homosexuality, thus failing in their obligation to protect his reputation.

Decision Overview

First, the ECtHR identified the issue at hand to be the protection of honor and reputation as part of the right to respect for private life under Article 8 of the Convention. The Court reiterated that the State must not only abstain from interfering with an individual’s private life, but also adopt measures to secure the respect for private life.

The Court then reiterated that public persons also enjoy legitimate expectations of protection and respect for their private life. The Court explained that, in the case at hand, the right to private life must be balanced against freedom of expression, guaranteed by Article 10 of the ECHR, as the allegedly defamatory statement was made in the context of a TV show. Then, the Court stressed that information that is favorable, as well as that which shocks, offends, and disturbs, enjoys protection under Article 10.

The Court then noted that the allegedly defamatory statement was intended to be a joke. The Court explained that humorous or artistic expression is a form or artistic expression that may exaggerate and distort reality, and provoke and agitate. The Court stressed that parody enjoys a wide margin of appreciation in the context of freedom of expression. [para. 51] Furthermore, the Court stressed that a reasonable reader standard should be applied in assessing satirical material. [para. 37]

With respect to Goucha, the Court determined that the domestic courts prioritized freedom of expression over his reputation. The Court highlighted that the domestic courts assessed how a reasonable viewer perceived the joke rather than Goucha’s feelings towards it. Thus, the Court concluded that the domestic courts fairly balanced “the television show’s freedom of expression under Article 10 and the applicant’s right to have his reputation respected under Article 8.” [para. 56]

Article 14

The Court reiterated that for an issue to arise under Article 14 “there must be a difference in treatment of persons in analogous or relevantly similar situations.” [para. 58] Furthermore, “a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.” [para. 58]

The Court noted that in assessing Goucha’s defamation claim, the domestic courts referred to the fact that Goucha made his homosexuality public, that he dressed himself in a colorful way, and that his show was generally watched by women. Goucha argued that these references portrayed the domestic courts differential and discriminatory treatment of his claim. However, the Court noted that Goucha had mentioned his sexual orientation to the courts and it was difficult to avoid referring to it. Furthermore, the domestic courts focused their analysis on the element of intent. Thus, the ECtHR concluded “in the absence of any firm evidence, it is not possible to speculate whether the applicant’s sexual orientation had any bearing on the domestic courts’ decisions.”