Case Summary and Outcome

The European Court of Human Rights (ECtHR) found that Portugal violated Patricio Monteiro Telo de Abreu’s freedom of expression, as enshrined in Article 10 of the European Convention on Human Rights, by convicting Telo de Abreu for reposting online three political cartoons. Telo de Abreu was convicted of defamation, by national Portuguese courts, for reposting caricatures on his personal blog that depicted a municipal councilor as a pig wearing sexually suggestive clothing. The ECtHR reversed the decision, reasoning that the Portuguese courts did not strike the right balance between freedom of expression and the right to honor and reputation. The Court concluded that political satire constitutes important democratic speech and that it should be permitted unless the government can show that the restriction or interference with freedom of expression is necessary in a democratic society.

Facts

Patricio Monteiro Telo de Abreu, is a Portuguese national and former Elvas municipal assembly representative. In 2008, Telo de Abreu reposted three political cartoons on his personal blog that depicted the mayor of Elvas as a donkey, the municipal councilor as a pig wearing sexually suggestive clothing, and the rest of the mayor’s political party as pigs. Next to each post, Telo de Abreu commended the artist’s cleverness. Telo de Abreu’s removed the posts from his blog upon learning about the criminal lawsuit brought against him by Mrs. E.G., the mayor’s  municipal councilor and close political advisor who was also depicted in the impugned caricatures.

Mrs. E.G. filed a complaint for aggravated defamation against Telo de Abreu and several other defendants before the Elvas Tribunal. She argued that Telo de Abreu disseminated political cartoons of a defamatory nature, attacking her reputation. In particular, Mrs. E.G. alleged that the cartoons depicted her as a promiscuous woman and suggested that she was engaged in an intimate relationship with the mayor.

Telo de Abreu was charged with aggravated defamation. Article 180 §1 of Portugal’s penal code criminalizes disseminating information that attacks an individual’s honor or reputation. This infraction is punishable by imprisonment or a fine. Moreover, Articles 183 and 184 of the same penal code provide for the possibility of increased damages if, among other things, an individual posts information in a medium that facilitates transmission.

On May 16, 2009, the Elvas Tribunal convicted Telo de Abreu on aggravated defamation charges and ordered him to pay a €1,800 fine and €2,500 in damages jointly with the other defendants. The court found that the political cartoon attacked Mrs. E.G.’s reputation and that Telo de Abreu, as a member of the opposing political party, disseminated the litigious speech to injure her. On February 26, 2015, the Evora Court of Appeals upheld the lower court’s decision. The Court of Appeals noted that neither the right to freedom of expression nor personal privacy are absolute. The court found that a cartoon depicting Mrs. E.G. in a sexual manner—and suggesting she had an intimate relationship with the mayor—surpassed the limits of free speech. Telo de Abreu filed an application with the ECtHR on August 24, 2015.

Decision Overview

Judge Grozev delivered the judgment for the European Court of Human Rights. The main issue before the Court was whether Portugal infringed on Telo de Abreu’s freedom of expression by convicting him of aggravated defamation for circulating a political cartoon in which a political advisor to a politician was depicted as a pig wearing sexually suggestive clothing. In particular, the ECtHR examined whether the Portuguese courts struck the proper balance between Telo de Abreu’s right to freedom of expression and Mrs. E.G.’s right to honor, reputation, and private life.

Telo de Abreu argued that the ECtHR should reverse the Portuguese courts’ decisions because the political cartoon jokingly satirized the government for being expensive and corrupt. Given this interpretation, the Portuguese government unduly restricted Telo de Abreu’s freedom of expression by preventing him from lawfully criticizing the municipal government. Telo de Abreu was adamant that the cartoon he reposted on his blog had no sexual connotation and that his desire to spread the satire was motivated by an opinion article criticizing the mayor that was published in 2006. Telo de Abreu further alleged that his criticism of the municipal political regime was the result of the views he held as a private citizen as much as a political opponent.

Portugal argued that the ECtHR should affirm its courts’ decisions. The government asserted that it was in the public interest to convict Telo de Abreu because the political cartoon depicted Mrs. E.G. as a prostitute and attacked her personal life. In this way, the political cartoon crossed a line from political satire to invasive personal attacks. The government also argued that the cartoon disseminated harmful stereotypes about women and therefore escaped the scope of protected speech under Article 10 of the European Convention on Human Rights (ECHR).

Relying on its own case law, the ECtHR explained that for a restriction to be deemed necessary in a democratic society, the government must show an a pressing social need (Bédat v Switzerland). Moreover, the Court opined that the government must prove that its restriction on expression is proportionate to a legitimate public aim. ECtHR case law recognizes that freedom of expression is extremely important in politics and that politicians must have a high tolerance for criticism because of their notoriety (Magyar Jeti Zrt v Hongrie). The Court added that any exceptions to freedom of expression regarding political questions must receive a narrow interpretation.

It further pointed out that while the right to one’s reputation is protected by Article 8 of the Convention, for this provision to intervene in an attack against personal reputation, it must reach a certain level of severity and be meant to harm one’s personal exercise of their right to private life. These conditions apply to both social and professional reputation, and benefit from a particular emphasis in the professional field. The Court added that since satire—an art form communicating a social commentary through exaggeration and deformation of reality—contributes to public debate, courts must examine any interference with an artist’s right to use satire with particular care (Vereinigung Bildender Künstler v Austria, Leroy v France, Alves da Silva v Portugal, Tuşalp v Turkey, Grebneva and Alisimchik v Russia, and Kaboğlu and Oran v Turkey).

The ECtHR adopted a narrower view on a politician’s right to the respect of their private life when balancing this right with another’s freedom of expression, interpreting freedom of expression in the context of public figures availing themselves to public scrutiny. The Court, following Magyar Jeti Zrt v Hungary, argued that “[t]he limits of permissible criticism are wider for a political party or a public figure than for a private individual [since] unlike the latter, the former inevitably and consciously expose themselves to close scrutiny of their actions by both journalists and the general public and must consequently show greater tolerance.” [para. 36]

The ECtHR highlighted that Article 8 and Article 10 rights a priori should be interpreted with equal respect, adding that the relevant criteria to be taken into consideration, when weighing these rights, are whether the contested expression contributes “to a debate of general interest, the notoriety of the person whose right to reputation is at stake […] the previous behavior of the person alleging a violation, the content, form and repercussions of the publication, as well as, if applicable, the circumstances of the publication as well as the circumstances in which any litigious photographs were taken.” [para. 37]

As a result, the Court said that satirical comments on a politician’s personal life must reach a high level of gravity and cause actual professional harm to justify restricting freedom of expression. The ECtHR found that Portugal did not demonstrate that this threshold was met. In its reading of the cartoon, the ECtHR did not think the artists suggested that Mrs. E.G. was engaged in an intimate relationship with the mayor. Moreover, the entire piece, taken together, clearly criticizes the Elvas government and the mayor’s political party, not Mrs. E.G. This reading of the cartoon, compounded with the fact that Telo de Abreu merely reposted the art and then deleted it from his blog after the criminal proceedings commenced, led the ECtHR to believe Telo de Abreu’s punishment was manifestly disproportionate in comparison to his acts, especially since Portuguese national law provides a specific remedy for damages to honor and reputation (Amorim Giestas and Jesus Costa Bordalo v Portugal). The ECtHR also added that harsh punishments, like the one in this case, could deter expression that uses satire to comment on politics or society (Alves da Silva v Portugal).

Thus, the ECtHR reversed the Portuguese courts’ decisions and granted Telo de Abreu €3,466 in material damages and €1,806 in legal fees. Telo de Abreu also asked the Court for emotional damages, but the court denied this request because the applicant did not specify the amount of moral damages he sought.

Concurring opinions

Judges Motoc, Kucsko-Stadlmayer, and Schukking authored concurring opinions. Each judge agreed with the Court that Portugal unlawfully restricted Telo de Abreu’s freedom of expression. However, concerned with the stereotypes portrayed in the cartoons, especially with respect to Mrs. E.G., these judges wrote separately to highlight the increasing violence against women in politics.

In her opinion, Judge Motoc started by defining violence against women in politics as any type of sexist action or threat causing physical, sexual, psychological, economic, or symbolic prejudice or suffering to women—preventing them from fully taking part in public life or exercising any rights relating to politics. Judge Motoc then went on to discuss the implications of violence against women in politics, concluding that this phenomenon, as a whole, represents a violation of women’s fundamental and political rights and that the Telo de Abreu case was an example of violence against women in politics. Judge Motoc concluded her analysis by stating that the Court must be ready to strive for the right balance when considering cases involving violence against women in politics.

As for Judges Kucsko-Stadlmayer and Schukking, their standalone opinion concurred with the majority opinion, emphasizing the Court’s finding that decontextualizing speech that takes place in a political context is contrary to the notion of proportionality discussed by the majority. Courts must therefore take into account the political context in which speech takes place when assessing the free speech implications of recognizing and enforcing competing rights. These Judges concluded that even though national courts had erred in granting and upholding Telo de Abreu’s criminal conviction, they were right to underline sexist representations of women in politics in their appreciation of proportionality. Kucsko-Stadlmayer and Schukking concluded their analysis by stating that “even satire must comply with certain limitations,” while highlighting that the present case’s positive aspect is that national jurisdictions recognized that Mrs. E.G.’s reputation as a woman in politics required particular protection under Article 8.