Sanoma Uitgevers B.V. v. The Netherlands
Closed Contracts Expression
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The Italian Supreme Court overturned lower courts’ decisions, finding that the distortion of the name of a consumer association and the juxtaposition of its name to vulgar words were not satire and therefore not protected by the right to freedom of expression. The association had brought an application after a newspaper published articles linking its name to Italian words for buffoons, collapse and diarrhea. The lower courts found the articles were protected by the right to freedom of expression in the Italian Constitution. The Supreme Court held that, although satire does not need to conform to the strict parameters of correctness, expressions must still be instrumentally connected to the manifestation of a reasoned dissent and cannot provoke contempt towards the targeted subjects.
The Italian newspaper, Il Tempo (published by Editrice Romana S.p.a.), published a series of articles allegedly defamatory of the Italian Coordination of Associations for the Defense of Consumers (“Codacons”). The articles used expressions which distorted the name Codacons into offenses (e.g., “Cialtracons”, where “cialtroni” in Italian means buffoons; “Crollacons”, where the reference is probably to the verb “crollare” which means to collapse). Other expressions emerged from the juxtaposition of the Codacons to words such as “diarrhea”.
Codacons brought an action against Editrice Romana before the Court of First Instance of Rome, The Court of First Instance dismissed the action, considering that those expressions were a manifestation of the constitutional right to freedom of expression in the form of satire, which is protected by Article 21 of the Italian Constitution.
Codacons appealed the decision, but the Court of Appeals of Rome upheld it on the merits.
Codacons then appealed to the Italian Supreme Court.
The Supreme Court delivered its decision, focusing on the nature of satire.
The Court emphasized that the right to satire is indisputably a constitutional right, falling within the scope of application of Article 21 on freedom of expression. As for its characteristics, it noted that the right “has a complex foundation identifiable in its nature as a creation of the spirit, in its relational dimension, i.e., as a social message, in its function of control exercised through irony and sarcasm against powers of any nature”. It is its very nature, observed the Court, that satire manifests itself as “merciless critique”. Because it aims at provoking laughter, satire is often based on paradoxes, metaphors, and in general on a distorting representation of reality. Therefore, it is not subject to the same strict parameter of truth to which the right to inform needs to conform. Satire ironically reproduces an event and thus necessarily expresses personal and debatable opinions.
However, the Court noted that there are limitations to what can constitute satire. Although it is not necessary for satire to conform to the parameter of truth nor to the parameter of correctness of expression, the expressions must still be “instrumentally linked to the manifestation of a reasoned dissent with the behavior targeted”. It cannot consist in an “unjustified aggression which is damaging to the honor and reputation of others” and the fundamental values of the individuals targeted must always be respected. Vulgar and repugnant juxtapositions which provoke disdain and contempt towards the targeted subjects thus cannot be considered lawful. The Court held that for damage to the reputation to happen it is not necessary that the content of the sentence is objectively offensive. It noted that, conversely, such damage can emerge from an evaluation of the whole context which can turn an apparently non defamatory sentence into a defamatory one.
Accordingly, in light of the above description of the nature of satire, the Supreme Court disagreed with the analysis of the Court of Appeals which had held that the expressions of the journalist to be “ironic jokes”. The Court also clarified that there is no doubt with regards to the possibility that the reputation being damaged is that of a legal person and collective entity. According to the Court, this damage would consist in the “decreased respect by members in general, or sectors or categories of them with which the entity [in this case, Codacons] interacts”.
The ruling was thus overturned and remanded to the Court of Appeals of Rome.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling contracts expression by providing limits to the lawful exercise of the constitutional right of satire.
Case significance refers to how influential the case is and how its significance changes over time.
The decision establishes a precedent to which lower courts will need to conform.
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