Band 35, Heft 3 - Special Issue: Humor and the Law: The Difficulty of Judging Jests

The United States and Europe are often contrasted with each other regarding their approach to freedom of expression. Yet, despite the differences between their respective judicial systems, courts from both regions inevitably face similar interpretive challenges when dealing with humor. Our paper conducts a comparative discussion of humor-related jurisprudence from the US and Europe, mostly (but not exclusively) focusing on two landmark cases – namely Hustler v. Falwell (US Supreme Court, 1988) and Vereinigung Bildender Künstler v. Austria (European Court of Human Rights, 2007). In particular, our analysis foregrounds two aspects: 1) How courts deal with the complex relations between humor, exaggeration and factual reality; 2) The role of objective harm (as opposed to subjective offence) in distinguishing between lawful and unlawful expression, and how the subjectivity of humor interpretation can undermine this criterion. On both levels, we argue that insights from literary and linguistic theories of humor – from Simpson’s work on satirical discourse to Attardo and Raskin’s General Theory of Verbal Humor – can set the basis for a more fine-grained and systematic approach to humor across different judicial systems.

Santa and Banta jokes are the mainstay of most Indian childhoods. Santa and Banta were used as stage names by the comedian duo Gurprit and Prabhpreet Singh but somewhere along the line, they turned into fictional characters in their own right and acquired pan-Indian fame. The defining characteristics of Santa and Banta jokes are that both are simple-minded middle-aged men belonging to the Sikh religious community. Most Indians consider these jokes lame but many Sikhs find them to be offensive and demeaning, not because of what is said but because of who says it. In 2015, Harvinder Chowdhury, a Sikh lawyer, petitioned the Supreme Court of India to ban the online dissemination of the Santa and Banta jokes. The Court admitted the Public Interest Litigation (PIL) petition and constituted a committee to look into this matter, before ultimately dismissing the petition in 2017, without judging it on merits. This paper will examine this specific attempt of the Indian judiciary to regulate humor, within the broader context of freedom to religion and free speech. It will study the arguments raised in the PIL, the recommendations of the committee, and the observations of the Court. No study has been done of the relationship between law and humor in India. This paper will examine whether the Court missed an opportunity to contribute to the virtually non-existent humor jurisprudence in India. Last year a children’s book The Art of Tying a Pug was withdrawn by its publishers because of the backlash it faced from the Sikh community on the wordplay in its title, which referred to the dog breed and the turban (pag or pagdi) worn by Sikhs. This incident is illustrative of the chilling effect on humor publications and the current publishers’ strategy of withdrawing the material deemed offensive instead of submitting it for judicial determination. Could a decision on merits in the Santa and Banta jokes case have laid down guidelines on what was acceptable and what was offensive? What would such guidelines be? Is the laying down of guidelines even possible, or desirable, given the unique set of issues presented by humor for the law? Ethnic jokes, in the form of minority-majority community jokes, are found in cultures all over the world. This paper will also undertake a comparative analysis of ethnic jokes in an attempt to answer these questions.

This paper focuses on two controversial cartoons that elicited debates around the conflicts between freedom of expression and the right to satire on the one hand, and the protection of the reputation or rights of others on the other. Paying special attention to genre-related aspects, we adopt a comprehensive approach that combines a discourse analysis of the cartoons, the analysis of the legal cases that followed their publication, and the assessment by 68 cartoonists from 33 nationalities on the clarity and offensiveness of the selected cartoons. The cartoons were published in Charlie Hebdo (France) and El Universo (Ecuador), respectively. Based on our analyses, we propose that the main triggers of discursive controversy are the target as well as the modal and rhetorical ways of addressing a theme. We also conclude that: (1) The plaintiff’s most relevant arguments deny the satirical status of these cartoons; (2) The high disparity in the cartoonists’ assessments of Charlie Hebdo ’s cartoon can be associated with its ambiguity when addressing a sensitive issue; (3) Regardless of their positive or negative assessment, cartoonists have a strong position in defense of the authors’ and newspapers’ right to publish them; (4) No significant differences were found in the assessment of the cartoons in relation to the geographical origin of the cartoonists who took part in the questionnaire.

This article highlights a fascinating legal wrestling match over the legal limits of free speech through humorous artistic works in the late eighteenth century – just before freedom of speech became a constitutional right. It concerned the parodic item “Reports from Babel” in an issue of the anonymous Dutch journal Ismaël from 15 September 1788. The city of Utrecht and specific authorities were allegedly targeted who in turn prosecuted the local sellers of these perceived libels, Gijsbert Timon van Paddenburg and Justus Visch. The controversy is studied through the political-historical background of the Orangists, who had been returned to power following a turbulent period. The arguments of the court and the parties involved are analysed, as well as the reception of the Roman law of  iniuria  – specifically regarding libels. Literary and philosophical-linguistic theories are employed to gain insight into the way this particular parody as a form of free speech was perceived as dangerous to late-eighteenth-century society. We show that these defendants exploited the ambiguity of parodic language as part of their defense strategy. Nonetheless, the judicial authorities dismissed these language-based arguments, ultimately condemning the two booksellers with the considerable fine of 1000 guilders. This legal-historical discussion of humorous artistic works, such as Ismaël , highlights the complex relationship between libel laws and free speech.

Soviet writers Yuli Daniel (aka Nikolay Arzhak) and Andrey Sinyavsky (aka Abram Tertz) published several satires anonymously in capitalist countries during the Cold War. In 1965 both writers were arrested in the Soviet Union and they were put on trial in February 1966. They were charged under Article 70 of the Penal Code that criminalized libel and defamation of the state and agitation with the aim of undermining or weakening the state. Sinyavsky was sentenced to seven years in a labor camp and Daniel was given five years. This trial’s controversial discussions about authorial opinions and intentions and the complex relationship between satire and social reality remain highly relevant today. This article presents seven contradictions and ambiguities inherent to satire in order to disentangle different arguments and viewpoints in their context. The reception of satirical texts is complicated by issues surrounding ethics and violence, seriousness and non-seriousness, truth and fiction, ambiguous or dubious empathy, morality, political content in non-political texts, and the use of a fictional persona. The vagueness and in-betweenness of satire can pose a challenge to environments averse to ambiguity, as was the case in this Soviet trial, but also in similar cases until today.

In Deckmyn v Vandersteen , the European Court of Justice (ECJ) defined parody as an “autonomous concept of EU law” with certain “essential characteristics.” The case revolved around a parodic drawing modeled after a cover of the well-known Suske & Wiske comic book series. Building on literary theory on parody, including the work of Genette, this paper will analyze both the ECJ’s reasoning in Deckmyn and the preceding Advocate General’s opinion in this case. In search for a shared vocabulary, we will focus on the specific legal interpretation in comparison to the characteristics identified from a humanities perspective. We identify opportunities for interdisciplinary dialogue, which now remains too implicit in the legal documents. In addition, we will address the conceptual challenges posed by parody in the digital age. For instance, to what extent can parody’s nuanced characteristics be recognized by filter technologies as required by modern copyright law in the online environment that has become a catalyst for sharing creative content?