Monday, 18 March 2013

'Casse-toi, pauv' con' Satire Judgment

The former French President Nicolas Sarkozy has a reputation for being very direct and blunt. In a famous encounter at the annual 'Salon de l'Agriculture' in France a few years ago, when one of the visitors refused to shake his hands and said he did not want to be made filthy, Sarkozy retorted by saying "Eh ben casse-toi alors, pauv' con!" ("Well, then get lost, you stupid bastard"). The now infamous words and the incident were filmed and became viral on social media. Subsequently, they were used in numerous satirical books, cartoons and programmes and also in political ads by Sarkozy's opponents. The words even made their way to the anti-Mubarak demonstrations in Tahrir Square in Cairo and also have their own wikipedia entry. This week, another echo of the phrase made its way to Strasbourg in the case of Eon v. France (available only in French), in which the Court found a violation of the freedom of expression.

Mr Eon was a leftist activist and former elected departemental representative. In the summer of 2008, during a visit of then President Sarkozy to the town of Laval, Eon waved a small placard with the aforementioned quote. He was immediately taken away by local police to the police station and eventually prosecuted and convicted for insulting the head of state, under a provision aimed at defending the digmnity or honour of from a 1881 law on freedom of the press (sic!). The penalty in his case consisted of a suspended fine of 30 euros. One of the main reasons the domestic courts took into account was that he had not acted in good faith, among others since it was premeditated.

In Strasbourg, Eon complained about a violation of his freedom of expression. France tried to have the complaint rejected on account of the lack of a significant disadvantage for the applicant (admissibility criterion in Article 35, para. 3 (b) of the Convention). The Court dismissed this objection. It held that although the situation concerned a moderate fine of minimal financial weight, the subjective perception of the applicant (in his view a point of principle was at stake) combined with what was objectively at stake in the case (this was a highly mediatised case relating to a national legal provision about which there was a lot of national debate, including in parliament) were also relevant. In addition, from the perspective of respect for human rights (one of the safeguard clauses of the admissibility criterion) the Court found that the case related to a matter which was, from btoh a national and Convention perspective, not minor.

On the merits, unsurprisingly, the Court held that the conviction amounted to an interference under Article 10 ECHR, that this interference was prescribed by domestic law and that it had pursued the legitimate aim of the protection of the reputation of others (in this case, the president of France). as to the question of whether the interference had been "necessary in a democratic society", the Court considered that taken at face value the text of the placard was offensive. However, the expression had not targeted the private life or honour of the president nor was it a gratuitous personal attack. Rather, it could be seen as political criticism. This characterization brings with it a higher degree of protection, to which could be added in this case that the target, the president, was a politician himself - a category of public figures towards which a wider freedom of expression is allowed. Importantly, by using the exact phrase the president himself had uttered earlier on, a quote which had been widely mediatised and had yielded widespread humorous comments, Mr Eon was availing himself of a satirical mode of expression. As the Court had held in earlier cases (see my earlier post here), satire in essence aimed to provoke and agitate. This meant that any interference with satire had to be scrutinised with particular care. Sanctioning expressions such as those of the applicant could, moreover, have a chilling effect. Satirical contributions on public matters could play, in the Court's view, a very important role in free debate on questions of general interest without which democracy cannot exist. Weighing all these factors, the Court concluded that applying a criminal sanction was disproprotionate in the light of the legitimate aim the state sought to protect. Therefore, Article 10 had been violated.

The Court's decision was not unanimous. On the admissibility issue, one judge (Pejchal) dissented. Although the judge agreed that the conviction amounted to a violation of Article 10, he found that the fine did not amount to a significant disadvantage. On the merits, six judges out of seven found a violation. And on the aspect of just satisfation (the Court held that the judgment itself provided sufficient satisfaction of the applicant), two out of seven judges dissented: judges Power-Forde and Yudkivska were of the opinion that the applicant had a right to more than just a moral victory.

From a legal perspective, this case does not offer much news. The reasoning is solidly built on earlier cases in virtually all its aspects. One could not, indeed, have expected any other outcome on the merits. For France it may re-ignite the discussion about the desirability of the legal provision in question. Meanwhile, the former president may want to look up what the old maxim of the golden rule entails. The word boomerang comes to mind ...

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