Information Note on the Court’s case-law 194

March 2016

Sousa Goucha v. Portugal - 70434/12

Judgment 22.3.2016 [Section IV]

Article 8

Positive obligations

Article 8-1

Respect for private life

Refusal to prosecute for joke made during television comedy show about homosexual celebrity referred to as a “female”: no violation

Article 14

Discrimination

Refusal to prosecute for joke made during television comedy s how about homosexual celebrity referred to as a “female”: no violation

Facts – During a live television comedy show, a joke was made about the applicant, a well-known homosexual TV host, who was referred to as a “female”. His criminal complaint for defamat ion against the television and production companies, the presenter and the directors of programming and content was dismissed by the domestic courts.

Law

Article 8: As sexual orientation was a profound part of a person’s identity, and gender and sexual orientation were two distinctive and intimate characteristics, any confusion between the two would constitute an attack on one’s reputation capable of attain ing a sufficient level of seriousness for Article 8 to be applicable.

As the alleged violation stemmed from the authorities’ refusal to prosecute, the main issue was whether the State, in the context of its positive obligations, had achieved a fair balance between the applicant’s right to protection of his reputation and the other parties’ right to freedom of expression guaranteed by Article 10.

The instant case was distinguishable from the previous cases concerning a satiric form of artistic expression, as the joke had not been made in the context of a debate of public interest and, as such, no matters of public interest were at stake.

A State’s obligation under Article 8 to protect an applicant’s reputation might arise where the statements went beyond the limits of what was considered acceptable under Article 10.

When dismissing the applicant’s complaint, the domestic courts had convincingly established the need for placing the protection of the defendants’ freedom of expression above the applicant’s right to protection of his reputation. In particular, they had taken into account the playful and irreverent style of the show and its usual humour, the fact that the applicant was a public figure, as well as the defendants’ lack of intent to attack the applican t’s reputation or to criticise his sexual orientation. Moreover, they had assessed the way in which a reasonable spectator of the show in question would have perceived the impugned joke – rather than just considering what the applicant felt or thought. Acc ording to the domestic courts, a reasonable person would not have perceived the joke as defamation because it referred to the applicant’s characteristics, his behaviour and way of expressing himself. A limitation on the television show’s freedom of express ion for the sake of the applicant’s reputation would therefore have been disproportionate under Article 10.

In view of the margin of appreciation afforded to the State in that area, the domestic courts had struck a fair balance between the two conflicting rights in line with the Convention standards.

Conclusion : no violation (unanimously).

Article 14 in conjunction with Article 8: The applicant himself had mentioned his sexual orientation in public and to the domestic courts. In this context, it would therefore have been difficult for the courts to avoid referring to it. In assessing whether the impugned joke reached the defamation threshold, they had framed it in the light of the applicant’s external behaviour and the style of the talk show, albeit through debatable comments. In particular, they had noted that the applicant dressed in a “col ourful way” and hosted television shows which were generally watched by women.

There was nothing to suggest that the Portuguese authorities would have arrived at different decisions had the applicant not been homosexual. The reason for refusing to prosecut e seemed rather to have been the weight given to freedom of expression in the circumstances of the case and the defendants’ lack of intention to attack the applicant’s honour or his sexual orientation. Consequently, it was not possible to speculate whether his sexual orientation had any bearing on the domestic courts’ decisions. Although the relevant passages were debatable and could have been avoided, they did not have discriminatory intent.

Conclusion : no violation (unanimously).

(See also Nikowitz and Ve rlagsgruppe News GmbH v. Austria , 5266/03 , 22 February 2007; Alves da Silva v. Portugal , 41665/07 , 20 October 2009; and Welsh and Silva Canh a v. Portugal , 16812/11 , 17 September 2013)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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