In her second article for the best blawg on earth, Marion examines the narrow circumstances the European Court of Human Rights limit satirical expression.

On 31 October 2017, the Federal Court sent the Fahmi Reza case back to the Sessions Court, after ruling that the order granted by the High Court (to have the constitutionality of section 233(1)(a) of the Communications and Multimedia Act 1998 (CMA) decided by the Federal Court) was not in compliance with the Courts of Judicature Act 1964.

Fahmi Reza has been charged under section 233(1)(a) of the CMA after posting an image of Prime Minister Datuk Seri Najib Razak in a clown makeup on his Instagram account. The charge against Fahmi Reza was that the expression was “obscene, indecent, false, menacing or offensive in character with the intent to annoy, abuse, threaten or harass another person”[1]. Fahmi Reza challenged the constitutionality of section 233(1)(a) of the CMA asserting that it contravenes Article 10(1)(a) of the Federal Constitution that guarantees freedom of speech.

If you look at the impugned image created by Fahmi Reza, it would appear that the artwork was satirical. Whilst the Malaysian courts have not defined satire, the European Court of Human Rights has defined it as “a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate.”[2]

Does the satire suggests reality?

Satire is generally protected expression but its perceived controversy is because satire often touches on what is morally unacceptable or an outrageous depiction of a person or a group of persons. A few cases that have reached the European Court of Human Rights have been instructive. Firstly, when considering whether the restrictions were based on “relevant and sufficient” reasons and whether they (the restrictions) were proportionate to the legitimate aim pursued, it would appear that if the satirical expression suggests reality, then the Courts would be more inclined to restrict the said satire. In the Vereinigung Bildender Künstler against Austria case[3], the painting in question was “a collage of thirty three religious and political public figures, including Mr. Meischberger – a former general secretary of the Austrian Freedom Party, who at the time of the events was a member of the National Assembly – in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars.” The Court found that “bodies being painted in an unrealistic and exaggerated manner… did not aim to reflect or even to suggest reality” and as such, the painting amounted to a caricature of the persons concerned using satirical elements.

Similarly, in Lindon, Otchakovsky-Laurens and July against France[4],  the publication in question was a novel “recounting the trial of a Front National militant who committed the cold-blooded murder of a young man of North African descent and admitted that it was a racist crime”. The novel was inspired by real events – in particular two murderers committed in 1995 by militants of the Front National – but added fictional elements. At the beginning of the story, the author raised the question of Mr. Le Pen’s responsibility, “Isn’t the Chairman of the Front National responsible for the murder committed by one of his teenage militant inflamed by his rhetoric?”. The French Court convicted the author for defamation towards Mr. Le Pen and the Front National on some excerpts of the novel, namely, “Mr. Le Pen is a chief of a gang of killers… a vampire who thrives on the bitterness of his electorate, but also on their blood… The murderer did precisely what Jean-Marie Le Pen advocated”. The European Court of Human Rights held that in considering whether an expression has overstepped certain limits – in this regard respect for the reputation and rights of others – an artist is allowed to have “recourse to a degree of exaggeration or even provocation…”. However, because the impugned work in this case was not pure fiction but introduces real characters and facts and that Mr. Le Pen was a controversial politician, the Court found that to liken an individual to the “chief of a gang of killers” and to describe him as a “vampire who thrives on the bitterness of his electorate, but sometimes also on their blood” had overstepped the permissible limits of freedom of expression.

In Alves da Silva v Portugal, the applicant was convicted for representing the mayor with a puppet with symbols of corruption on the puppet and for broadcasting a pre-recorded message of satire on the mayor’s alleged illegal acts. The applicant challenged the conviction. The European Court of Human Rights held that the conviction was in violation of the applicant’s freedom of expression as it was clearly satirical and as it was done in the context of a carnival, it could hardly be taken literally.

Is the person depicted a public figure?

The second element that the European Court considers is the standing of the person(s) depicted in the impugned publication. This is in accordance with the United Nations Human Rights Committee prescriptions, “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties … all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism”[5].

In Grebneva and Alisimchik against Russia[6], the European Court of Human Rights ruled on a decision taken by the national courts to charge a journalist for having insulted Mr. V., a regional prosecutor, during the election campaign. The impugned journalistic article was a fictitious interview accompanied with a montage of a female dressed in a one-dollar banknote with a photograph of the regional prosecutor, Mr. V., for the face. The character of the interview was a female who was “a lawyer and had extensive working experience as a prosecutor and who during the elections, ran an escort agency… The first name of this fictional woman, Vasilinka, was very similar to the regional prosecutor’s surname, Mr. V. The character was referred to a “prostitute-werewolf” who rendered services to candidates standing for election in their region, thereby earning extra income by carrying out a governmental order approved by the President… The so-called interview was accompanied by the character’s comments on the candidates, with the use of slang words and expressions”. The European Court of Human Rights noted “the provocative nature of the text, which drew express parallels between the regional prosecutor and a prostitute… did not concern Mr. V.’s private or family life, but clearly related to his institutional responsibility”. The Court considered that as a public figure, Mr. V. “inevitably and knowingly exposed himself to public scrutiny and should therefore have displayed a greater degree of tolerance to criticism than an ordinary civil servant.”

Likewise, in the Lindon case, the European Court of Human Rights reiterated the wider degree of tolerance that applies to criticism towards politicians and observed that the impugned novel was raising a matter of general interest.

Does it incite violence and hatred?

Thirdly, the Court also looks at the aim of the impugned publications, drawing the line where the expression incites hatred and violence. In Lindon, Otchakovsky-Laurens and July against France[7], the restriction of the novelist’s freedom of expression was justified because the said Court viewed that the goal of the novel was to incite violence and hatred and the content of the remarks was such as to stir up violence and hatred, thus going beyond what is tolerable in political debate.

Is the penalty imposed proportionate to the legitimate aim?

Finally, the European Court of Human Rights has considered whether the penalty imposed by the national jurisdictions was proportionate to the legitimate aim pursued. This test takes into account the nature and the severity of the penalty. As an example, in the Grebneva and Alisimchik case, the Court found that the “irrespective severity of the penalty (criminal proceedings and a fine)… was likely to deter journalists from contributing to the public discussion of issues affecting the life of the community… the national authorities’ reaction to the satirical article was disproportionate to the legitimate aim pursued, and was therefore not necessary in a democratic society, within the meaning of Article 10(2) of the Convention.”

Whilst Malaysia does not have the benefit of the extensive human rights jurisprudence of the European Court of Human Rights when it comes to satire, it is imperative that when balancing freedom of expression and other rights, the Malaysian courts and authorities should recognise that satire is protected expression and it is in the public interest to do so as it can contribute to political speech or debate. Therefore, unless the satirical expression clearly incites violence and hatred or by reasonable standards, the satire blurs the line between reality and fiction (the latter instance calls for a defamation suit), then the courts and the authorities should not curtail such expression. Let us also not to forget that public figures should display a higher level of criticism than an ordinary citizen.

[1] Section 233(1)(a) of the Communications and Multimedia Act 1998

[2] European Court of Human Rights, Vereinigung Bildender Künstler against Austria, 30 June 2005

[3] European Court of Human Rights, Vereinigung Bildender Künstler against Austria, 30 June 2005

[4] European Court of Human Rights, Lindon, Otchakovsky-Laurens and July against France, 22 October 2007{%22itemid%22:[%22001-82846%22]}

[5] Human Rights Committee, General Comment No. 34, 12 September 2011

[6] European Court of Human Rights, Grebneva and Alisimchik against Russia, 22 November 2016{%22itemid%22:[%22001-168761%22]}

[7] European Court of Human Rights, Lindon, Otchakovsky-Laurens and July against France, 22 October 2007{%22itemid%22:[%22001-82846%22]}


Young student who is interning with the Malaysian Centre for Constitutionalism and Human Rights and trying to understand Malaysian striking multi-culturalism with her French mind. Cappuccino drinker and...