Where to draw the line?

(From "Horizons" no. 110 September 2016)​​​

​Satire doesn't always stick to the rules of good taste. And when political or religious differences resist conceptual unambiguity, freedom of expression can be at risk. In her doctoral thesis, Raphaela Cueni has taken a close look at this constitutionally delicate area.

Ms. Cueni, from a legal standpoint, does any valid definition of satirical communication actually exist?

There is no legal definition of satire that is easy to apply. However, courts in different legal jurisdictions have developed more or less expedient definitions – including the Swiss Federal Supreme Court. One constitutive element of satire is irritation, and this can transmute into rage or aggression. Satire rubs up against socially accepted norms, and to do this it utilises the aesthetic possibilities of linguistic and gestural expression.

In Switzerland, which after all is the homeland of the satirical 'Nebelspalter' magazine, there have been but a few large-scale legal cases involving satire. Do you have an explanation for this?

Various courts, along with the Swiss Press Council, repeatedly have to assess satirical expressions of opinion. On a federal level, there is less case law regarding satire than in Germany, for example. This could well be a sign of a healthy culture of debate, because in such a culture, legal proceedings are not advisable. Great Britain is exemplary in this respect. Even though British satire is openly aggressive and intentionally malicious, no large-scale legal cases are brought against it. If people try to take action against satire on grounds of defamation, the potential plaintiffs know that they'll be subjected to publicity that's absolutely counter-productive, regardless of the actual outcome of their case.

The explosive nature of satire becomes obvious time and again. We see it in the intense reactions to the Mohammed caricatures in Denmark, in the attack against Charlie Hebdo in Paris, and in the controversy surrounding Jörg Böhmermann's vulgar poem about Erdogan.

These highly mediatised events have underlined just how relevant and timely it is that we should think hard about satire, and about how we perceive freedom of expression. The French situation is especially interesting: seemingly without noticing any contradiction, the President insists on freedom of expression, but at the same time argues in favour of restricting it when it comes to the anti-Semitic statements of the comic Dieudonné.

But if we only consider the high-visibility cases, it's too limiting, as we need to look at the relatively unspectacular cases too. Often, it's these that illustrate the most controversial legal issues surrounding the constitutional protection of satire, and the extent and boundaries of that protection. Back in 2007, the newspaper 'Confédéré' in the canton of Valais published a photomontage of Adolf Hitler and Oskar Freysinger, a member of the Swiss National Council for the Swiss People's Party. The legal case that ensued raised questions about the relationship between satire and truth, though it is probably remembered only by very few people, even in Switzerland. In general, our legal foundations aren't good at providing conclusive answers to moral and ethical questions. Nor is that what they were intended for.

Switzerland is a country that is heterogeneous in matters of language, denomination and religion. And here, too, there are very many different perceptions of satire. What are the legal ramifications of such cultural differences?

The question is really: what leeway does a given legal framework afford to satire? The differences in how we express and perceive satire are closely connected to how we perceive the relationship between culture and the law. The law is nothing other than an expression of a specific culture. But at the same time it also creates a framework in which a culture can develop.

Raphaela Cueni is on a doctoral scholarship of the SNSF and is an assistant to Prof. M. Schefer at the Law Faculty of the University of Basel. She has recently returned from a research visit to Columbia Law School in the USA.

Isabel Zürcher is an art historian and a journalist in Basel.