Freedom of expression, which is the cornerstone of any democratic society, applies equally to “inoffensive” ideas and to those that “offend, shock or disturb“. But how far can it go? The ECtHR ruled for the first time, on 9 February 2023 (applications n°58951/18 and 1308/19, case C8 v. France), that homophobia and sexism in a strictly entertainment-oriented television program exceeded the limits of freedom of expression.

The pieces of footage at issue are described as follows:

  1. The first showed the host of the program causing one of the female pundits, with her eyes closed, to place her hand on his trousers, over his genitals, without visibly warned or giving consent.
  2. In the second one, the same host spoke live on-air to several telephone callers replying to an ad he had posted on a dating site, pretending to be bisexual. As part of this telephone hoax, the host behaved in an effeminate manner in order to mock homosexual people. Furthermore, the voices of the on-air callers were apparently left unaltered, making it easier to identify them.

On account of such video sequences, penalties were imposed to the television channel by the French national broadcasting authority (Conseil supérieur de l’audiovisuel, hereinafter “CSA”), upheld by the French Council of State, and ultimately by the ECtHR.

  • Freedom of expression does not allow to broadcast a negative stereotypical image of women and homosexuals

First of all, the ECtHR recalls that freedom of expression, enshrined in Article 10 of the ECHR is not absolute. It is indeed regulated by paragraph 2 of this article, which lays a three assessment criteria to justify the interference of a public authority: (a) its lawfulness (“prescribed by law“), (b) its legitimacy (whether it pursued one of the legitimate aims), and finally (c) its necessity. The first two criteria are not problematic in the present case, especially since they are not disputed by the applicant company: on the one hand, Article 42-1 of the French Law of 30 September 1986 on Freedom of Communication expressly provides for the possibility for the CSA to impose sanctions on any holder of an licence to operate audiovisual communication services; and on the other hand, the legitimacy of the protection of the rights of others (in particular the right to one’s image, honor and reputation) and the image of women and homosexuals, is undoubted.

The Court goes into a more detailed analysis of the last condition, relating to the necessity of the interference, which general principles have been reiterated many times. Member States have a certain margin of appreciation in assessing the existence of a “pressing social need”. It is then up to the ECtHR to determines whether the interference at issue is, in the light of the case as a whole, (1) proportionate to the legitimate aim pursued“, and (2) whether the reasons given by the national authority to justify it appeared to be “relevant and sufficient” (NIT v. Republic of Moldova, 5 April 2022).

Firstly, several factors must be taken into account to assess the proportionality of the interference with the right to freedom of expression: respect for procedural guarantees, contribution to a debate of public interest, and the nature and severity of the sanctions imposed. The company did enjoy procedural safeguards such as the enforcement notice, the opportunity to challenge the sanction, and the adversary procedure. Moreover, the sequences in question, as part of a strictly entertainment-oriented television program, did not include any information, opinions or ideas contributing to a debate of public interest. This circumstance increases the respondent State’s margin of appreciation in deciding whether it is necessary to sanction the company (Hachette Filipacchi Associés v. France, 23 July 2009). Despite the alleged humorous character, the ECtHR points out that such forms of expression that use were still subject to the limits laid down in Article 10§2 of the Convention (“the right to humor does not allow everything“, see §85 of the judgment under review). Finally, the CSA imposed a financial penalty of €3,000,000 on the company, as well as a two-week suspension of advertisement broadcasting before and after the show at issue, which, according to the applicant, represented a loss of €13,000,000. In the ECtHR’s view, the financial nature of the sanction is apt, as is the amount, which represents only 2 and 8.7% of the company’s turnover. Consequently, the interference of the CSA is proportional. It should be noted that the ECtHR usually attaches great importance to the fact that the national authority has opted for the least restrictive measure of freedom of expression in its analysis of proportionality (case law resulting from a series of judgments such as Axel Springer v. Germany and Perinçek v. Switzerland). European judges have therefore repeatedly invited domestic authorities to “show restraint in resorting to criminal proceedings” in this field (Reichman v. France, 12 July 2016), which prompted several States, including France and Italy, to undertake a movement towards decriminalization. After turning the insult into a mere civil tort, the Italian legislator has also considered eliminating the custodial penalties provided for defamation (see Caliendo Bill of 20 September 2018). In France, several opinion-related offences have been removed from the criminal framework (for instance, the offence of insulting the President of the French Republic).

Secondly, the CSA, supported by the French Council of State, considers that the sequences in question perpetuated a negative and stigmatizing stereotype of women and homosexuals. According to the ECtHR, this national assessment was based on relevant and sufficient grounds. Indeed, the first sequence trivializes “unacceptable behaviors” i.e. sexually suggestive gestures made by a man in the context of his hierarchical working relationship with a female pundit, without her prior consent. Such a sequence tends therefore to “convey a stereotyped image of women, reducing her to the status of a sexual object“. The ECtHR takes this opportunity to recall that “progress towards gender equality has become an important goal of the Member States of the Council of Europe“. Likewise, the second sequence, through the caricature of homosexuals, is likely to “stigmatize a group of people because of their sexual orientation“. Again, the ECtHR underlines the importance, for social cohesion, of respect for diversity and an “harmonious interaction between persons and groups with different identities“.          

The ECtHR’s concern for discrimination based on gender or sexual orientation in the context of freedom of expression has also had an impact in recent years at the domestic level, both in France and Italy. For instance, under French law, insulting an individual because of their sex, sexual orientation, gender identity, or disability is an aggravating factor of defamation and insult. In Italy, the Zan Bill also aimed to add a general aggravating factor when offenses are committed on the grounds of sex, gender, sexual orientation and identity, or disability. Approved in 2020 by the Chamber of Deputies but then rejected a year later by the Senate, this Bill, which was at the heart of many debates, remains a dead letter.

  • The prevalence of the right to respect for private life over freedom of expression in the present case

When two rights of equal status, both guaranteed by the ECHR come into conflict, the Court adopts a “balancing” methodology. It is clear that the hoax sequence amounts to an invasion of the interviewees’ private life, given that it broadcasted private information about them, without obtaining their prior consent and without making arrangements to conceal their identities. A fair balance must therefore be struck between the applicant company’s right to freedom of expression (under Article 10 of the Convention) and the right of the victims to respect for their private life (pursuant to Article 8). Following a balancing exercise, both the CSA and the Council of State ruled in favor of the victims’ right to privacy, which was upheld approved by the ECtHR in light of the wide margin of appreciation afforded to the respondent State under article 10, the extremely intimate elements disclosed to the public (relating to sexual practices and preferences or sexual anatomy), and the victims’ lack of notoriety. The ECtHR then rejects the applicant company’s argument based on the Sousa Goucha v. Portugal judgment (22 March 2016), where jokes made during a television comedy show about a homosexual celebrity were not prosecuted, in the name of freedom of expression. Despite the similarity in the facts, the degree of invasion of private life in the C8 case was significantly higher; insofar the hoax victims were ordinary individuals, unknown to the general public, who did not wish to reveal any information about their private lives to the audience. In contrast, the “homosexual celebrity” in the Sousa Goucha case was a public figure, i.e., a person who “through their acts or even their position, ha[s] entered the public arena” (Kapsis and Danikas v. Greece). Thus, the degree to which the person concerned is well known seems of paramount importance in case of invasion of privacy, and allows for greater freedom of expression.

Nevertheless, it should be noted that the French government did not take into account the notoriety of the victim in its analysis of the first sequence, in which the direct victim was a professional pundit. This reasoning, which was not overturned by the ECtHR, is legitimately understandable since the sanction was not aimed at protecting the individual rights of the said pundit (especially her reputation), but on a larger scale, the respect of women’s rights. The ECtHR also underlines the fact that the show is particularly popular with minors and young adults, and deplores the exposition of young people to such material trivializing damaging portrayals of women.

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Marco Amorese

Jeanne Deniau