A web administrator was convicted of political satire. Satire is characterized by exaggeration and distortion of reality! Violation of freedom of expression
JUDGMENT
Patrício Monteiro Telo de Abreu v. Portugal 07.06.2022 (app. no. 42713/15)
SUMMARY
The case concerned the applicant’s conviction and his sentencing to payment of a fine and damages
for aggravated defamation of a municipal councillor (Ms E.G.) on account of the publication on a
blog administered by him of three cartoons drawn by an artist.
The Court held that the domestic courts had not taken sufficient account of the context in which the
applicant had published the cartoons on his blog. They had not carried out a thorough balancing
exercise between the rights at stake. Furthermore, they had not taken into consideration the
characteristics of political satire emerging from the Court’s case-law or made any reference to the
Court’s case-law on freedom of expression. The Court held that the reasons given by the domestic
courts to justify the applicant’s conviction could not be regarded as relevant and sufficient. In its
view, imposing criminal sanctions for conduct such as that of the applicant in the present case was
liable to have a chilling effect on satirical forms of expression concerning political issues. The
applicant’s conviction had thus not been necessary in a democratic society.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Tiago Patrício Monteiro Telo de Abreu, is a Portuguese national who was born in 1974
and lives in Elvas (Portugal). He is a member of a political party and was elected to the Elvas
municipal assembly on three occasions between 2001 and 2009; in 2013 he was elected as a
municipal councillor (vereador) in Elvas. At the time he lodged his application he was also an adviser
to his party’s parliamentary group.
In September 2008 the applicant published three cartoons, together with a text which he had
written, on the blog “The House of Commons”, of which he was the administrator at the material
time. The cartoons depicted a white-haired donkey dressed in a suit, next to a sow with bare breasts
and blond hair wearing lace stockings, a garter belt and high heels; they were surrounded by pigs,
who were also undressed and all wore an armband bearing the letters “CMR” (an abbreviation of
Câmara Municipal de Rondónia – “municipality of Rondonia”). The cartoons were by a local artist,
A.C., and were part of a series that had been published since 2007 in the local newspaper
O Despertador, entitled A Rondónia. The term had been used by a well-known journalist in a political
column published in 2006 in the newspaper Público parodying the Elvas municipal council, which at
the time was led by Mr José Rondão Almeida, a member of a political party that was an opponent of
the applicant’s party.
In March 2009 Ms E.G., a municipal councillor in Elvas who is now deceased, lodged a criminal
complaint against the applicant, the artist and the editor of the newspaper O Despertador, alleging
damage to her honour and reputation on account of the way in which she had been portrayed in the
cartoons published in the local newspaper and on the applicant’s blog.
In May 2014 the applicant was found guilty of aggravated defamation of Ms E.G.. He was sentenced
to a fine and to pay damages to Ms E.G.
The Elvas District Court found it established that the sow depicted in the cartoons represented
Ms E.G. and that the white-haired donkey represented the mayor of Elvas. It also considered that
Ms E.G. was the mayor’s “right-hand woman” and was well known in the municipality of Elvas, and
took the view that by depicting the sow with lace stockings, a garter belt and heels, the artist had
sought to evoke images of a prostitute and a debauched, sexually voracious woman, thereby causing
Ms E.G. anguish and anxiety. The District Court also found that by placing the sow alongside the
donkey, the cartoonist had implied that there was an intimate relationship between them. Lastly, it
noted that the applicant was an outspoken political opponent of the Elvas municipal executive and
that he had removed the cartoons from his blog as soon as he had learnt of the complaint lodged by
Ms E.G.
In February 2015 the Court of Appeal upheld the fine imposed on the applicant.
Beginning in June 2015 the applicant paid the fine of 1,800 euros (EUR) in twenty monthly
instalments, as well as court fees of EUR 1,368 in ten monthly instalments. In August 2015 he also
paid EUR 1,666 in damages to Ms E.G.
THE DECISION OF THE COURT…
Article 10
The Court deemed it necessary to examine whether the national authorities had struck a fair balance
between the applicant’s right to freedom of expression and Ms E.G.’s right to private life, both of
which deserved equal respect, and whether the reasons given for the applicant’s conviction were
relevant and sufficient.
It observed that the domestic courts had acknowledged that the applicant was a political opponent
of Ms E.G. and that the cartoons in question had constituted political satire. As it had previously
held, satire was a form of artistic expression and social commentary which, through its characteristic exaggeration and distortion of reality, naturally aimed to provoke and agitate. Accordingly, any interference with the right of an artist – or anyone else – to use this means of expression had to be examined with particular care, as satire contributed to public debate.
In the Court’s view, the domestic courts had omitted to take into consideration the context of the
cartoons in question. It noted the following in particular.
Firstly, the three cartoons in question had been part of a series of previously published cartoons by
the artist A.C. which satirised local political life in Elvas.
Secondly, while the domestic courts had found it established that Ms E.G. was the “right-hand
woman” of the mayor of Elvas and that she was very well known locally, they considered that by
depicting the two characters side by side the cartoonist had sought to imply the existence of an
intimate relationship between them. The Court failed to see how the cartoons, by depicting the
characters side by side, had been intended to make such insinuations, given that none of the
drawings had shown the characters kissing, touching or communicating with each other.
It was true that the cartoons echoed certain regrettable stereotypes relating to women in power.
The Court noted, however, that the applicant’s comments accompanying the cartoons showed that
his actual intention in publishing them was to highlight the political satire expressed through
caricature and, indirectly, to criticise the municipal leadership, in his capacity as a political opponent
and a member of the Elvas municipal assembly. The comments had not made any specific reference
to Ms E.G., her political activities or her private life, still less her sexual life, nor did they contain any
insulting or stigmatising remarks about her.
The Court considered that, by focusing excessively on the interference with Ms E.G.’s right to
reputation, the domestic courts had ultimately taken the cartoons out of their proper context and
interpreted them in a manner that did not take sufficient account of the ongoing political debate.
Furthermore, they had not given sufficient weight to the fact that all elected representatives were
necessarily exposed to this type of satire and caricature and should therefore display a greater
degree of tolerance in that regard. This was especially so given that in the present case, in spite of
the stereotypes used, the caricatures had remained within the limits of exaggeration and
provocation that were typical of satire. Moreover, Ms E.G. was not the only figure to have been
depicted undressed in the cartoons, as all the pigs were portrayed in the same way; the mayor of
Elvas was portrayed as a donkey, a clearly pejorative image. Thus, the cartoons had targeted the
members of the municipal council as a whole.
In sum, in the Court’s view, the domestic courts had not taken sufficient account of the context in
which the applicant had published the cartoons on his blog. They had therefore not carried out a
thorough balancing exercise between the rights at stake. Furthermore, they had not taken into
consideration the characteristics of political satire emerging from the Court’s case-law or made any
reference to the Court’s case-law on freedom of expression.
The domestic courts had also held that by using the Internet to disseminate the cartoons, the
applicant had made them known to a wider audience. However, they had not analysed further the
reach of the three cartoons in question or their accessibility, or even whether the applicant was a
well-known blogger or a popular user of social media, which might have attracted the public’s
attention and increased the potential impact of the cartoons. Moreover, the Court noted that on
learning that Ms E.G. had lodged a criminal complaint against him, the applicant had immediately
removed the cartoons from his blog, suggesting that he had acted in good faith.
As to the nature and degree of severity of the penalties imposed, the Court considered that the
sentencing of the applicant to a fine of EUR 1,800 and to joint payment of damages to Ms E.G. was
manifestly disproportionate, especially as Portuguese law provided for a specific remedy for the
protection of a person’s honour and reputation.
Consequently, notwithstanding the margin of appreciation left to the national authorities in the
present case, the Court concluded that the applicant’s conviction had not struck a fair balance
between the protection of his right to freedom of expression and Ms E.G.’s right to the protection of
her reputation. The Court held that the reasons given by the domestic courts for the applicant’s
conviction could not be regarded as relevant and sufficient. In its view, imposing criminal sanctions
for conduct such as that of the applicant in the present case was liable to have a chilling effect on
satirical forms of expression concerning political issues. Hence, the applicant’s conviction had not
been necessary in a democratic society. There had therefore been a violation of Article 10 of the
Convention.
Just satisfaction (Article 41)
The Court held that the finding of a violation constituted in itself sufficient just satisfaction in respect
of the non-pecuniary damage sustained by the applicant. It also held that Portugal was to pay the
applicant EUR 3,466 in respect of pecuniary damage and EUR 1,806 in respect of costs and expenses.
Separate opinions
Judge Motoc expressed a concurring opinion. Judges Kucsko-Stadlmayer and Schukking expressed a
joint concurring opinion. These opinions are annexed to the judgment.
