Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The European Court of Human Rights held that France’s conviction of a man who gave his nephew a shirt with terrorist slogans did not infringe his rights to freedom of expression. The man had been convicted for the apologia for crimes of willful attacks on life when his nephew wore the shirt with the inscriptions “I am a bomb” and “Jihad born on September 11” at his pre-school. The lower French court held that the convictions were an infringement, but this had been overturned by the appellate courts which held that the inscriptions were not humorous but rather an attempt to justify mass crimes. The Court examined the interference of the right in light of the overall context, including the recent terrorist attacks in French schools, and concluded that the conviction was justified, and so did not constitute an unjustifiable limitation of the right to freedom of expression.
In 2012, Z.B., a French man living in Sorgues (France), presented his three-year-old nephew with a personalized T-shirt, on which the following was written: “I am a bomb” on the chest and “Jihad born on September 11” on the back. On September 25, 2012, the director of the pre-school where the child studied, together with another adult woman, discovered that the child was wearing this T-shirt. The Director informed the competent authorities, and the Prosecutor of the Republic charged Z.B. and his sister, the child’s mother, with justifying criminal acts involving willful attacks on life, in accordance with articles 23 and 24 of the French Law of July 29, 1881, on Freedom of the Press. These provisions deal with the provocation to crimes or misdemeanors in France. Article 23 indicates that those who publicly incite criminal actions, by speeches, writings, images, or online, will be punished if they succeed. Article 24 provides for penalties for those inciting serious offenses, even if they do not materialize. Perpetrators of apologia for serious crimes can also be punished. The penalties include up to 5 years in prison and a fine of 45,000 euros, with more severe penalties for authority perpetrators.
On April 10, 2012, the Avignon Correctional Court dismissed Z.B. and his sister from charges of justifying crimes of wilful attacks on life, and declared the civil claim inadmissible. The Court held that the T-shirt worn by the child was limited in time (only in the afternoon of September 25, 2012) and space (pre-school, elementary class) and that only two people saw it. Consequently, the Court concluded that these elements did not meet the requirements of justifying or encouraging crimes of wilful attacks on life.
The Prosecutor’s office appealed this decision and sought the criminal conviction of both accused, with the imposition of a fine. Additionally, the municipality, where the pre-school is located, filed an appeal against the decision of the Correctional Court, on the grounds that it had incurred personal damages due to the violation of the internal pre-school regulations and the public order.
On September 20, 2013, the Nîmes Court of Appeal overturned the ruling of the Correctional Court. The Court held that the pre-school was a public place and deemed the controversial writing on the T-shirt not to be a simple joke but rather a deliberate expression of approval for criminal acts, presenting them in a favorable light. Consequently, the Court held that certain attributes of the child, such as his name, date of birth, and the use of the word “bomb”, served as a pretext to unambiguously associate terms related to mass violence and deliberate attacks on life [p. 57]. The Court recognized the municipality as a civil plaintiff, and ordered Z.B. and his sister to pay 1,000 euro in damages. They were also found guilty and sentenced: Z.B. received two months of suspended imprisonment and a 4,000 euro fine, while the mother received one month of suspended imprisonment and a 2,000 euro fine.
Z.B. filed a cassation appeal, alleging, among other things, a violation of Article 10 of the European Convention.
On March, 17, 2015, The Chamber of Criminal Cases (Court of Cassation) overturned the appeal ruling, but only in relation to the civil claim of the municipality. It held that the Court of Appeal accurately assessed the significance and scope of the incriminated materials printed and published, and properly characterized the crime for which the accused were found guilty.
On September 17, 2015, Z.B. lodged a complaint with the European Court of Human Rights, alleging a violation of his right to freedom of expression, as guaranteed by Article 10 of the Convention which provides the right to freedom of fxpression and information.
The judgment was delivered by the Fifth section of European Court of Human Rights. The central issue for consideration was whether Z.B.’s criminal conviction was necessary in a democratic society, taking into account the context of the dissemination of the statement and whether the punishment imposed was proportionate, and so whether or not it infringed his right to freedom of expression.
Z.B., argued that the statements for which he was subjected to criminal punishment fell under the protection of Article 10 of the Convention. He emphasized the general context and argued that if they were considered in isolation, they could not be interpreted unambiguously. In addition, he submitted that these expressions represented a unique incident in his behavior. Z.B. submitted that the controversial inscriptions were humorous in nature and did not assess the terrorist attacks of September 11, 2011 as they related to the special circumstances characteristic of his family circle. Z.B. argued that he used a method of expression based on the ambiguity of the word “bomb”, describing the appearance of a child and the physical characteristics of an attractive person, in a colloquial style typical of ordinary French. Z.B. argued that there was no reasonable evidence to suggest that the communication was intended to present the terrorist attacks in a favorable light. Z.B. argued that the circumstances under which the joke was perceived as provocative were insufficient to justify subsequent criminal punishment, especially on such a serious charge. He stated that his conviction was not merely “symbolic” considering his limited resources, as it was expressed in the imposition of a large fine, as well as a punishment that put him at risk of imprisonment. In addition, the criminal conviction itself affected his reputation, especially since the case was widely covered by the press.
The French Government argued that the T-shirt inscription was intended to present the September 11 attacks “in a favorable and humorous light” [p.40]. It submitted that the statements on the T-shirt, in which he minimized a mass crime related to the jihadist movement, did not deserve the protection of freedom of expression. The Government argued that minimization of the September 11, 2001 massacres under the guise of humor was actually a position of hatred, which could be just as dangerous as direct expression.
The Court recalled that humorous speech or forms of expression cultivating humor are protected by Article 10 of the Convention, even if they lead to agitation or provocation, regardless of their author [p. 56]. The Court emphasized that satire, as a form of artistic expression and social commentary, naturally aims at provoking through exaggeration, and so courts should pay special attention to any interference with the right to express opinion through satire. The Court recognized that the right to freedom of expression is subject to restrictions and so satire cannot be censored solely based on the negative or outraged reactions they may cause but statements should not go beyond the limits defined in paragraph 2 of Article 10 of the Convention.
The Court noted that the Nîmes Court of Appeal had assessed the controversial inscriptions as representing not just a joke but a deliberate desire to give value to criminal acts, presenting them in a favorable light [p. 57]. The Court compared this case to Leroy v. France, and pointed out that the communications in question here cannot be considered as relating to any discussion of public interest in connection with the terrorist attacks of September 11, 2001 and so the State had more discretion in assessing the need to interfere with freedom of expression.
The Court noted that the T-shirt worn by the child was not visible to other people, and the inscription became known only to adults when they helped the child change clothes. It was also not accessible to the general public, as it was only worn on school grounds. Thus, the controversial message was read only by two adults. In this regard, the Court recalled that, in Yankov v. Bulgaria, it had previously stressed the importance of lack of publicity when considering the proportionality of the interference with the exercise of freedom of expression.
The Court examined the context of the terrorist attacks committed in March 2012 by Mohammed Merah in France and the place where the T-shirt was shown. The French prosecutor had noted the context of the terrorist attacks that took place in France which led to the deaths of children at school while still emphasizing the importance of moving away from them. The Court agreed with this approach. It noted that such a context, although very serious, cannot in itself fully justify the intervention in question in this case. Nevertheless, the Court stated that it cannot ignore the importance and significance of this general context in this case and the fact that Z.B. is not associated with any terrorist movement or does not adhere to any terrorist ideology cannot further mitigate the significance of the disputed message [p. 60].
The Court acknowledged that it could not speculate on the exact nature of Z.B.’s intentions in this matter, but stressed that he should have taken into account the particular sensitivity of such inscriptions [p. 75]. The Court referred to the Prosecutor General’s arguments concerning the emotions and tensions caused by the controversial message, as well as its impact on society, and noted that, in Demirel v. Turquie, it considered the circumstances surrounding the disputed facts, including the difficulties associated with the fight against terrorism which is an issue of primary public interest in a democratic society. Additionally, the Court accepted that, in this respect, national authorities are in a better position than an international judge to decide on the need for restrictions aimed at achieving legitimate goals and to understand and assess specific social problems, The Nîmes Court of Appeal’s close understanding of the regional context put them in a privileged position to understand this need for restrictions and so the Court did not see any serious grounds for substituting its assessment for the assessment of national instances in this case. Consequently, given the sensitive context, the Court held that Z.B.’s punishment was justified. However, the Court noted that a more detailed motivation from the Cassation Court would allow for a better understanding of their arguments.
The Court stressed that it is essential to consider the nature and severity of the punishment when assessing whether the violation of the right to freedom of expression was proportionate [p. 67]. According to judicial practice, including Reichman v. France, the imposition of a criminal conviction is one of the most serious forms of interference with the right to freedom of expression [p. 73]). In this particular case, the Court held that the punishment was proportionate, pursued a legitimate purpose, and took into account the specific circumstances of the case.
The Court found that the grounds on which Z.B. was found guilty of justifying mass violence were appropriate and sufficient in the specific circumstances of the case and met urgent social needs. Accordingly, the Court held that Z.B.’s conviction constituted an interference with his right to freedom of expression, but that this interference pursued a legitimate aim and so could be considered necessary in a democratic society in accordance with Article 10 of the European Convention on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In finding that the French courts were in a better position to assess the context of controversial statements, the Court did not examine the vague nature of the French law on the justification of terrorism which can lead to the criminalization of statements that do not necessarily constitute incitement to violence. The decision may have a chilling effect on those seeking to express themselves through humor in France and the imposition of criminal sanctions may deter comedians and ordinary people who want to create satirical content on the topic of terrorist acts.
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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