Judges struggle with humour
Joke or offence?
Door Rob van der Wal
By Rob van der Wal
Rob van der Wal
‘Je suis une bombe’ – I’m a bomb, said the front of the T-shirt of a three-year-old child in France. The other side of the shirt featured his name and birthday: Jihad, born on 9/11.
The uncle who had the shirt made asked Jihad’s mother to send the boy to preschool in it, just so he would have worn it once. He wore a hoodie on top, so the shirt wasn’t visible. Until he had to get changed.
The preschool employees that saw the shirt were shocked, thought it was glorifying terrorism, and decided to immediately call the authorities.
‘For context, Jihad is a fairly common name in the Arabic world’, says Alberto Godioli, associate professor of European culture and literature. ‘And it doesn’t necessarily mean Holy War, as the West seems to often think.’
Not consistent
In other words: the T-shirt was meant to be humorous. The local court also saw it that way, says Godioli. ‘In the first round, the uncle was found not guilty of glorification of terrorism. The judge argued that it was clearly just a joke.’
For one court it is just distasteful, for the other an unlawful expression
But on appeal, the court said this was glorification. The case was even taken to the European Court of Human Rights, but the outcome stayed the same: the uncle and the mother were found guilty and received a fine alongside a suspended prison sentence.
‘You see this quite often in humour-related cases’, Godioli says. ‘For one court it is just a distasteful joke, for the other an unlawful expression.’ There is a lot to reflect on and to weigh, and judges do not always have a consistent approach, he sees.
Database
That’s where he comes in. The recipient of two Dutch Research Council grants, Godioli has for the past few years worked together with a team of international researchers to set up a set of practical guidelines to interpret humour in court.
In addition, he and his colleagues are curating a database with the most significant legal cases about humour from all over the world, which they publish on their website, ForHum (Forum for Humor and the Law). It currently comprises approximately four hundred cases. ‘But that’s probably the tip of the iceberg’, Godioli says. ‘For example, we mostly include cases from higher or supranational courts, while there is a lot happening at lower courts as well.’
Among other things, the database can help legal professionals retrieve information from previous cases that apply to theirs. ‘So they can see if something is comparable.’
Stand-up comedy
One of the recommendations made in the toolkit is: always take context into account. Regarding the T-shirt case for example, there is a whole genre of humour that has been often used by stand-up comedians with a Muslim background after 9/11. ‘They tend to use islamophobic statements such as “all Muslims are terrorists” in an ironic way’, Godioli says.
If placed in context, the joke is not a glorification of terrorism
He gives an example. ‘British stand up-comedian Shazia Mirza had a show shortly after 9/11 and she started her routine by saying “My name is Shazia, or at least that’s what it says on my pilot license”. Rather than trivialising terrorism, these jokes make fun of the assumption that if you have a Muslim-sounding name, then you must be a terrorist.’
The judges in the T-shirt case did not take into account enough that the uncle was thinking of jokes like this when he created the shirt, Godioli would argue. ‘If placed in this context, the joke is not a glorification of terrorism. Rather, it can be seen as an inappropriate example of dark humour, ridiculing the islamophobic idea that a child who is called Jihad and was born on 9/11 must be a terrorist child.’
Criticism
The cases that Godioli looked at mostly concern four big areas: defamation, public morals – like blasphemy – incitement to discrimination and violence, and lastly intellectual property law, which includes parodies of paintings or satirical posters.
There’s plenty of cases about satirical criticism of public figures. Last October, Greenpeace hung an enormous ‘Wanted’ poster with the face of the CEO of Rabobank, a big Dutch bank, on a building in Amsterdam’s financial district. The banner in Wild West style blames him for causing billions of euros in damage through deforestation. ‘That was based on a series of reports that said the bank financially supported deforestation.’
Rabobank took legal action, arguing that depicting the CEO as a criminal threatened his safety. The court rejected this claim. The poster alone wouldn’t undermine his safety, it said, and as CEO, being subject to criticism for his actions is a fair consequence.
Fried egg
Public morals, instead, were invoked in a Ukrainian case that reached the European Court of Human Rights in 2018. It concerned a monument for fallen soldiers in Kyiv with an ever-burning flame.
Humour and satire can be an important part of a peaceful protest
That flame, an activist group felt, was not only a waste of natural resources, but a hypocritical waste of money as well, since Ukraine hadn’t properly looked after its veterans. As a satirical protest, one of them, Anna Sinkova, fried an egg over the flame. A video of her action was then uploaded on the group’s website.
Shortly after, Sinkova was arrested for desecrating a burial place. In the Ukrainian court, she got a three-year suspended prison sentence, which was upheld by the European Court of Human Rights. ‘But interestingly, this was a split case’, says Godioli. ‘Of the seven judges, there was a minority of three who disagreed with the decision of the Ukrainian court.’
What the other four failed to take into account, he argues, is that the protest should have been seen as an example of ‘laughtivism’, or activism through laughter. ‘As there was no damage to the monument, and nobody got harmed, you also have to take into consideration that humour and satire can be an important part of a peaceful protest.’
Fundamental right
Godioli’s approach doesn’t mean that judges should never restrict humour, he says. ‘Our database contains cases where the courts rightly found that humour was being used as a superficial disguise for defamation or incitement to violence.’
Nevertheless, he says, freedom of expression is a fundamental right. ‘And humour and satire are part of that freedom. In any case, it’s important to assess a joke for what it is.’
The toolkit for the judiciary will be available from 1 May on the ForHum website, where you can also find the database of cases involving humour and free speech.