‘Taking jokes seriously’: Establishing a normative place for satire within the freedom of expression analysis of the European Court of Human Rights

Abstract

Satire is a form of expression which tackles complex, contemporary issues in a nuanced, jesting spirit. Vitally, it does so through humour and provocation. This article demonstrates why we should not place extensive limits on controversial satire. At the European Court level, this requires a robust proportionality assessment of each satirical expression, rather than granting a wide margin of appreciation to national authorities which are more likely to uphold restrictions. The definition of satire in Vereinigung Bildender Künstler (VBK) v Austria did not go far enough to ensure that satire is treated as a distinct category worthy of higher protection at the European Court level. Moreover, the European Court’s worrying approach to controversial expression allows offence to feelings to justify restrictions, thus satire rests in a precarious position. This article remedies this deficiency by elucidating clearer reasoning for protecting satire than that offered in VBK, while providing a rigorous framework for assessing the proportionality of restrictions on satire, in order to provide limited, well-reasoned exceptions.