Hate Speech, Indecency / Obscenity
Pussy Riot v. Russia
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In December 2008, French comedian Dieudonné M’Bala M’Bala hosted a show in which he invited Robert Faurisson, an academic who had denied the existence of gas chambers in concentration camps. At the end of the show, M’Bala M’Bala gave a prize to Faurisson by an actor wearing a garment that resembled the clothing worn by Jewish deportees. The prize named for ” unfrequentability and insolence,” was a three-branched candlestick with an apple crowning each branch.
In March 2009, the public prosecutor charged M’Bala M’Bala with committing public insult against persons of Jewish origin or faith. In October 2009, a court of first instant in Paris convicted the comedian of the charge and sentenced him to a fine of 10,000 euros. In April 2013, M’Bala M’Bala filed an application in the European Court of Human Rights, arguing, inter alia, that the judgment violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. The Court held that while satirical speech falls within the protection of the Convention, M’bala M’bala’s show did not merit the protection of Article 10 because it went beyond a performance for entertainment; its overall context amounted to a demonstration of hatred and anti-Semitism and support for Holocaust denial. Accordingly, the Court dismissed the application under Article 17 (prohibition of abuse of rights) of the Convention.
On December 26, 2008, French comedian Dieudonné M’Bala M’Bala invited Robert Faurisson to his show. Faurisson is a French academic regarded as one of the “leading advocates” of Holocaust denial. At the end of the show, M’Bala M’Bala awarded Faurisson a prize for “unfrequentability and insolence,” which took the form of a three-branched candlestick with an apple on each branch. The prize was handed to him by an actor wearing a garment that resembled the the clothing worn by Jewish deportees, with a star bearing the word “Jew.”
On December 29, 2008, police initiated a preliminary investigation and then in March 27, 2009, the public prosecutor charged M’Bala M’Bala with committing public insult against the persons of Jewish origin or faith.
On October 27, 2009, a court of first instant in Paris found the comedian guilty and sentenced him to pay a fine of 10,000 euros. It held that while the use of provocative or vulgar satire falls within the right to freedom of expression in a democratic society, the comedian “could not hide behind the pretext of comedy” in this case. [para. 12] It found that M’Bala M’Bala was aware that Faurisson was a leading advocate of Holocaust denial and that the show crossed the permissible limits of the right to humor by disrespecting the dignity of Jewish people.
On March 17, 2011, the Paris Court of Appeal upheld the judgment. Then, the Court of Cassation dismissed the comedian’s appeal on October 16, 2012.
On April 10, 2013, M’Bala M’Bala lodged an application in the European Court of Human Rights, arguing that the judgment against him violated his right to freedom of expression under Article 10 of the European Convention on Human Rights.
Th French government asked the Court to consider the application as inadmissible pursuant to Article 17 (prohibition of abuse of rights) of the Convention on the grounds that M’bala M’bala attempted to “deflect” Article 10 of its fundamental values in justifying his desire “to deliberately offend the memory” of the Jewish people. [para. 26] It further argued that the judgment was not in violation of Article 10 because it was an interference prescribed by law and that it concerned the legitimate aim of protecting the reputation of others within the meaning of the article. It pointed out M’bala M’bala’s previous conviction in 2007 for racial insult and argued that this case was even more serious because it was not a criticism of religion as part of a general debate, but rather an insult against a group of people because of their origin or faith. [para. 27]
On the other hand, the comedian contended that he knew little about Robert Faurisson’s status as an “iconic Holocaust denier” and was not a follower of his ideology. He further explained that the purpose of the show was to “highlight the ostracism of Robert Faurisson and show that the limits to freedom of expression, the press and the political class, extremely low as they can in no way achieve ‘absolute sacredness of the Jewish martyrdom’.’” [para. 28] According to him, his show was in part intended to reflect the double standard existing in France by which an allusion to Holocaust is perceived as aggression, while contesting other genocides are much tolerated. [paras. 28-29] He also added that the costume worn by the actor during the show was not meant to disrespect, but to create a comic effect.
The Court agreed with the French domestic courts that the show lost its entertainment value by calling one of the best known French revisionist to the stage coupled with a set playing the role of a Jew deported to concentration camps. According to the Court, the comedian could not claim the right to express ideas or opinions through satire because the overall context of the performance demonstrated “hatred and anti-Semitism.” [para. 39] While satirical speech is protected, the Court found the ideology expressed in the show against “the fundamental values of the Convention, as expressed in its preamble, namely justice and peace.” [para. 39]
Accordingly, the Court dismissed the application under Article 17 of the Convention, finding that comedian M’Bala M’Bala was not entitled to the protection of Article 10 on the right to freedom of expression.
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