Case Summary and Outcome

The European Court of Human Rights (ECtHR) unanimously held that the conviction of a Portuguese citizen for satirical criticism of a mayor violated the right to freedom of expression guaranteed in Article 10 of the European Convention on Human Rights (ECHR).  At a carnival, the applicant drove around the city of Mortágua in a van with a puppet representing the Mayor, a sign that read “Set-Narba Entreprises” (an anagram of the Mayor’s name), and a blue bag (a symbol of corruption in Portugal).  The applicant also played a recording on loop suggesting that Set-Narba Enterprises would offer jobs to those who voted for the Mayor.  Following a criminal complaint by the Mayor, the Portuguese government brought charges against the applicant for defamation under the penal code of Portugal. The Court of Santa Comba Dão found the applicant guilty of aggravated defamation and condemned him to a fine of €1,400, legal costs, and €3,000 in damages to the Mayor.  The applicant appealed his conviction, invoking his right to freedom of expression under Article 10 of the ECHR.  The Court of Appeal of Coimbra dismissed the appeal, holding that the expression at issue was not protected by the ECHR because the applicant sought to damage the Mayor’s reputation.

The ECtHR overturned the aforementioned decisions. It ruled that the conviction interfered with the applicant’s freedom of expression guaranteed in Article 10 of the ECHR, and that the interference could not be justified in a free and democratic society.  The conviction was not proportionate to the otherwise legitimate aim pursued by Portugal, namely the protection of the reputation or rights of others.  The ECtHR emphasized that the applicant’s message was satirical in nature and should not be interpreted literally.  The ECtHR further stated that the Mayor, as a political figure, should be more tolerant of criticism, particularly where it is expressed in the form of satire.  Moreover, in the ECtHR’s view, the imposition of criminal sanctions on expressive acts such as those of the applicant would dissuade satirical interventions in debates on matters of public interest.  The ECtHR, therefore, concluded that the conviction violated Article 10 of the ECHR and ordered Portugal to pay the applicant €8,445.96 in damages and €1,500 in legal costs.

Facts

The applicant, Ricardo Alves da Silva, made a plaster puppet intended to represent the Mayor of the city of Mortágua, Afonso Abrantes.  He installed the puppet in his van along with a sign that read “Set-Narba Entreprises” (an anagram of the Mayor’s name) and a blue bag (a symbol evoking, in Portugal, illicit sums that are not officially recorded).  During a carnival held between February 22 and 24, 2004, the applicant drove around the city in his van, exhibiting the puppet, sign, and blue bag.  He also recorded the following sentences, which he played in a continuous loop with a speaker mounted on the van:

Believe in the cultural, recreational, social, and economic development of the municipality of Mortàgua, in charge of Set-Narba Enterprises, which have the most employees, paid by taxes on all of us.  Give me your vote, and your wife will have a job, no diploma needed; your son, too, will be a municipal employee.

Following a criminal complaint by the Mayor, the Portuguese government brought charges against the applicant for defamation under Article 180 of the penal code of Portugal.  On November 30, 2004, the Court of Santa Comba Dão ruled that Alves da Silva should not be brought to trial because his acts did not constitute an infraction under the penal code of Portugal.  On April 27, 2005, the Court of Appeal of Coimbra overturned the decision and sent the case back to the Court of Santa Comba Dão, holding that the record contained sufficient evidence to bring the applicant to trial for defamation.  

After trial, in a judgment released on July 5, 2006, the Court of Santa Comba Dão found the applicant guilty of aggravated defamation and sentenced him to a fine of 200 day-fines (amounting to €1,400) as well as legal costs.  Alves da Silva was further ordered to pay €3,000 in damages to the Mayor.  He appealed the decision and invoked his right to freedom of expression as protected by Article 10 of the ECHR and the ECtHR’s jurisprudence thereunder.  On March 21, 2007, the Court of Appeal of Coimbra dismissed the appeal and affirmed the conviction, ruling that the defendant’s acts were not covered by Article 10 because he sought to damage the Mayor’s reputation.

On September 17, 2007, Alves da Silva brought an application against Portugal to challenge his conviction for defamation before the ECtHR.  On November 12, 2008, the ECtHR deemed the application admissible and accepted to examine the case. 

Decision Overview

A seven-judge Chamber of the European Court of Human Rights (Second Section) considered whether the criminal conviction for defamation against the applicant —who criticized in a satirical way the Mayor of Mortágua during a carnival— imposed by the Portuguese courts above violated the applicant’s freedom of expression, as guaranteed in Article 10 of the ECHR.

The applicant argued that his conviction for defamation was an unjustified interference with his right to freedom of expression.  This interference was all the more unjustified because the expressive acts at issue occurred in the context of a carnival.  Moreover, the applicant’s message, while critical of the Mayor’s political actions, was evidently satirical.

The Portuguese government argued that the conviction did not constitute an interference with the applicant’s freedom of expression, because his message did not raise issues of public interest but was simply slanderous.  Therefore, in the Portuguese government’s view, Article 10 of the ECHR did not apply to the expression at issue.  Assuming the existence of an interference, the Portuguese government contended that it was justified within the meaning of Article 10 § 2 because the conviction pursued a legitimate aim, namely the protection of the reputation or rights of others.  The applicant’s conduct was clearly excessive and highly damaging to the Mayor’s reputation.  According to the Portuguese government, the harm to the Mayor’s reputation was exacerbated by the fact that the events occurred in a region of Portugal where close relationships are more intense.

The ECtHR began its analysis by summarizing the framework articulated in its jurisprudence on Article 10 of the ECHR.  The ECtHR emphasized that freedom of expression—one of the essential pillars of all democratic societies—covers “information” or “ideas” that are offensive, shocking, or disturbing.  The exceptions to freedom of expression set out in Article 10 § 2 must be interpreted restrictively. For example, interferences with freedom of expression must be “necessary in a democratic society.”  This requirement is only met where the interference corresponds to a “pressing social need.”  Contracting States enjoy a certain margin of appreciation to assess such necessity, but this margin goes hand in hand with a European supervision exercised by the ECtHR, which must give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.  (Lopes Gomes da Silva v. Portugal, No. 37698/97, § 30, CEDH 2000‑X).  

Referring to its decisions in Perna v. Italy, No. 48898/99 and Cumpǎnǎ and Mazǎre v. Romania, No. 33348/96, the Court held that in determining whether an interference with Article 10 is justified, the ECtHR must examine whether, in context, the restriction on freedom of expression is “proportionate to the pursuit of the legitimate aim” and whether the reasons invoked by the State are “relevant and sufficient.”  

Applying this framework to the present case, the ECtHR determined as a preliminary matter that Article 10 of the ECHR covered the applicant’s conviction. 

Next, the ECtHR assessed whether the interference was justified within the meaning of Article 10 § 2 of the ECHR, which requires that the interference be “provided by law” and “necessary in a democratic society” to pursue a legitimate aim.  It was uncontroversial that the conviction was provided by law —i.e., the relevant provisions of the penal code of Portugal— and pursued a legitimate aim, namely the protection of the reputation or rights of others.  Only the necessity requirement was at issue in this case.

The ECtHR ruled that the interference was not justified under Article 10 § 2 of the ECHR because it was not necessary in a democratic society.  The applicant’s expression, the ECtHR noted, consisted of a caricature of the Mayor by means of satirical items.  Satire is a form of artistic expression and social commentary that, given its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate.  Any interference with satirical expression must accordingly be examined with particular care, according to the ECtHR precedent laid out in  Vereinigung Bildender Künstler v. Austria, No. 68354/01.  Here, the accusations against the Mayor should not be interpreted literally, having regard to the nature and content of the applicant’s message and the context in which it was communicated.  Even if these accusations were to be taken literally, the Mayor, as a political figure, should be more tolerant of criticism —particularly where it is expressed in the form of satire.  Furthermore, the ECtHR reasoned that criminal sanctions on expressive acts such as those of the applicant may have a dissuasive effect on satirical interventions in debates on matters of public interest.  Satire, the ECtHR stressed, may play an important role in such debates, without which there can be no democratic society.  

Balancing the societal interest in the conviction against the effect on the applicant’s freedom of expression, the ECtHR concluded that the criminal sanctions ordered by the Portuguese courts were disproportionate to the protection of the aim it pursued, and thus not necessary in a democratic society.  As to the remedy for the violation of Article 10 of the ECHR, the ECtHR ordered the State of Portugal to pay €4,445.95 for material injury, €4,000 for moral injury, and €1,500 in legal costs to the applicant.