Kahiu v. Mutua
Closed Expands Expression
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The Court of Appeal in Versailles upheld a lower court ruling acquitting the French rapper OrelSan (Pascal Aurélien X.) of incitement to hatred and violence against women through his song lyrics. The Court found that the song lyrics must be analyzed within the context of the musical genre in which they are performed and in consideration of challenges and social conditions facing the fictional characters portrayed. The court held that it would be a serious violation to artistic freedom to prohibit these forms of expression which are representative of concerns facing the young generation and quite prevalent in today’s society. The Court further found that Aurélien X himself did not embody the negative traits of his imaginary characters, and it was clear to his audience that the characters were fictitious and the lyrics should not be confused with actual calls to violence.
The Plaintiff was Aurélien Cotentin (Aurélien X), a French singer, songwriter and rapper known by his stage name Orelsan. He was born 1 August 1982.
On 13 May 2009, Orelsan gave a concert at the “Bataclan” concert hall in Paris. In August 2009, a complaint was filed against Aurélien X by The French Movement for the Family Planning, National Federation of Solidarity of Women, Solidaire Women, Watchdogs (Chienne de garde) and Feminist Collective Against Rape, based on alleged criminal offenses related to songs performed during the 9 May concert. Aurélien X was charged with public insult against a person or a group of persons on the basis of their gender and incitement to discrimination, hatred or violence against a person or a group of persons on the basis of their gender under Articles 23, 29 (2), 33 (2), (3) and (4) of the Law of 29 July 1881 on freedom of the press.
The complaint quoted eight passages from various songs performed publicly during the concert which included:
On 31 May 2013, Paris Criminal Court-17th Chamber convicted Aurélien X of incitement to hatred and violence against women and for public insult based on gender in accordance with Articles 132-29 to 132-34 of the Criminal Code. The Court ordered Aurélien X to pay a suspended fine of 1,000 EUR, as well as 1 EUR in damages and 800 EUR in costs to each of the organizations which brought the suit. The conviction was overturned by the Court of Cassation on 23rd June 2015 and the Court of Appeal in Versailles agreed to hear the case again on appeal.
The main issue before the Court of Appeal in Versailles was whether the intent of the artist was to simply express the discontents of his generation or whether his intent was to insult women and to incite violence, hatred or discrimination against them.
The advocacy organiztions argued that way women were portrayed in the songs could incite some men to hatred, violence and discrimination against women, even though many of the songs were of an autobiographical and artistic nature. The lyrics consistently referred to women as “whores” and “bitches” in a manner that was not clearly imaginary, making it impossible for the audience to distinguish between fictional characters and real attitudes. They requested the full application of the related laws related to public insult and incitement to hatred, violence and discrimination against women.
Aurélien X argued that the case should be dismissed based on the protection of artistic freedom guaranteed under Article 10 of the European Convention of Human Rights. He recalled that the concert at the Bataclan, followed the release of his first album entitled “Perdu d’avance” (Lost in advance) which was a major success and was described by the press as “rap anti bling bling” (newspaper Libération), and “the one who will shake French rap” (magazine Le Parisien). The defendant argued that all his songs were fictional works, describing imaginary characters, unrepresentative of his personal convictions. In particular, the songs from his album “Lost in advance” were illustrative of the current social crisis, and described characters who were driven to aggression or violence by depression and loneliness. Moreover, the way the plaintiffs selectively presented passages out of context, distorted their real meaning. On a personal level, Aurélien X maintained that he had never advocated discrimination or violence towards women during any of his interviews. He did admit that invoking the tragic death of the actress Marie Trintignant by her boyfriend, was in poor taste, but his lyrics meant to call attention to the issue through black humor. Aurélien X further noted that he had a huge following by women who often composed the majority of the audience at his concerts. Therefore, he maintained that his audience did not confuse the dark artistic imagery of his songs with a call to violence or discrimination.
The Court began by establishing that the offensive language used in the songs performed by the defendant must be analyzed in relation to the right to freedom of expression protected under Article 11 of the 1789 Declaration of the Rights of Man and the Citizen, which states “[t]he free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”
Similarly, Article 10 of the European Convention on Human Rights and Freedoms recalls that “everyone has the right to freedom of expression” even if “[t]he exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others
The Court then explored the nature of artistic creativity which must be granted greater protection from censorship as vibrant democratic societies must tolerate different conceptions of morality. The present case represents such social divisions and the need for tolerance as the genre of rap music is considered by many groups to be provocative, vulgar or even violent. The Court further explained that rap music and related types of expression often reflect the attitudes of rebellious and disillusioned youth.
The Court found that a careful reading of the lyrics revealed fragile characters struggling with disillusionment and a feeling of failure. The songs portrayed a disenchanted generation, misunderstood by adults, fearful of an uncertain future, and frustrated by social and sexual loneliness. In particular, the Court noted that the song Perdue d’avance perfectly illustrated this disillusionment and self-mockery: “(…) soon 26, in the midst of adolescence crisis … I am defeated … I’m going to waste. ..I am lost in advance, in rap, at work, in life, with girls … “.
The Court also observed that Aurélien X never personally expressed any of the violent, provocative, or sexist attitudes imbued by the characters in his songs, either during interviews or during court proceedings. Therefore, the Court concluded that Aurélien X himself did not embody the negative traits of his imaginary characters, and it was clear to his audience that the characters were fictitious and should not be confused with real calls to violence.
The Court stressed that it was not their role to call into judgment the inspiration of artists, even those who might represent persons “lost in advance”. The Court further observed that rap is not the only artistic genre finding its expression in extremely hostile terms, as the same trend was seen in film in recent years. The court held that it would be a serious violation to artistic freedom to prohibit these forms of expression. The lyrics in the defendant’s songs must be analyzed within the context of the musical genre in which they are performed and in consideration of challenges and social conditions facing the fictional characters. The court concluded that convicting the defendant for the offenses of insult and incitement to violence, hatred and discrimination against women would be tantamount to censoring all forms of artistic creation inspired by discomfort, distress and the feeling of abandonment of a young generation, in violation of the principle of freedom of expression.
The Court of Appeal in Versailles acquitted Aurélien X of all charges.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling of the Court of Appeal in Versailles expands the freedom of artistic expression by employing a version of tests applied in judicial assessments of restrictions to artistic expression, in particular as they relate to expressions of sexuality. Existing standards for artistic expression hold that a work of art (e.g. a rap song) must be granted protection providing it falls with in an artistic genre, such as those represented in movies, literary works, or songs, such as those in the present case which depicted the distress experienced by a young generation feeling “perdue d’avance”.
This can be compared to the contemporary community standard test which determines the scope of limitations to artistic freedom based on the sensibilities of the average person in the general public. This test has been established by case-law in a range of jurisdictions, including the USA (see e.g. US, Roth v. United States, 354 U.S. 476 (1957), in judgments of the Constitutional Court of Romania (see Bala Istvan, 108/1995 of 2nd November 1995) and judgments of the Constitutional Court of the Russian Federation (see the constitutional complaint of Maria Alekhina, 2521-O/2014 of 23rd October 2014).
Unfortunately, the Court did not engage in judicial dialigue with courts outside France which have reached similar conclusions. Firstly, it could have referenced case-law which explored the nature of artistic expression through the influence of the artist’s perspective on the audience. (See the ruling of the German Bundesverfassungsgericht of 24nd February 1971, Germany, 1 BvR 435/68, Mephisto, BVerfGE 30, 173), and the Italian Corte Suprema di Cassazione of 1st October 2009, Italy, 10495/2009, https://www.dirttto.it/sentenza-per-esteso-cassazione-n-104952009).
Secondly, it could have cited case-law which affirmed the right of the artist to be provocative with speech that might under certain circumstances be considered as hate speech.
Thirdly, the Court of Appeal in Versailles could have referenced the famous Cohen decision of the US Supreme Court (US, Cohen v. California, 403 U.S. 15 (No. 299) which held that “while the particular four-letter [f..k – note by M.G.] word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual”.
Finally, the Court could have strengthened the persuasive effect of its ruling by relying on legal scholarship on artistic expression (e.g. Wildhaber L., The Right to Offend, Shock Or Disturb? Aspects of Freedom of Expression under the European Convention on Human Rights, “The Irish Jurist” 2001/36, pp. 17-31).
Nonetheless, the Court of Appeal in Versailles provides a pivotal finding that any artistic work must be legally assessed within the context of its specific artistic genre. The nature of this genre may, under certain circumstances, justify forms of expression that otherwise would not be tolerated by law.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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