the Irish for rights

Cowengate: no use crying over spilt milk

'Silvio Berlusconi and Mara Carfagna, via New York Times
Silvio Berlusconi and Mara Carfagna, though not by Filippo Panseca

Yesterday’s Times Online has a short piece which begins [with added links]

A scarf is the only thing protecting the modesty of Silvio Berlusconi, the Italian Prime Minister, in a painting of him and his Minister for Equal Opportunities, Mara Carfagna, 32, a former topless model, as angels. The work by Filippo Panseca is in a show at Savona on the Italian Riviera. Mr Panseca, 69, said that he wanted to pay tribute to the Prime Minister, 72, in the exhibition, which also includes a painting in similar style of Mr Berlusconi’s wife Veronica Lario.

The same story is also covered in The Independent, The Telegraph, and The Daily Mail. The inevitable comparisons with Cowengate were drawn by the Evening Herald, which adds that Panseca said that if

Berlusconi bought the paintings he would donate the money to the earthquake victims of Abruzzo. Mr Berlusconi has yet to comment. But he seems unlikely to buy the pictures: last year, he censored a bare nipple in a copy of a renaissance painting hung in the government press room.

More seriously, though, it seems that 144 people complained to the Broadcasting Complaints Commission about RTÉ’s coverage, 9 about the original report, and 135 about the apology; and Suzy has posted a copy of RTÉs response to the BCC regarding those complaints. In essence, RTÉ’s position is that the original story was not a breach of taste and decency; whilst the apology was not a breach of objectivity. But this is inconsistent. As Clockwork Chartophylax points out

Either the original report was offensive and required an apology, or it was inoffensive and the apology was unnecessary and only made to avoid angering the Taoiseach, which is a clear failure of objectivity and impartiality. RTE management can’t have it both ways.

While we await the BCC’s reply, perhaps Messrs Cowen and Berlusconi might have friends visiting Iowa in the near future? If they do, they might receive an interesting present: a copy of Bill that seeks to prohibit political cartoons (at least in some election contexts) (see Volokh here and here, and Rick Hasen; hat tip: Media Law Prof Blog). Meanwhile, in an echo of my speculation about whether the caricatures constitute seditious libel, a Thai blogger has been sentenced to ten years imprisonment after pleading guilty under Thailand’s ugly lèse-majesté laws – his crime was to have posted anti-monarchy pictures and comments on his blog, and two journalists in the Ivory Coast have been convicted of “offending the head of state” and fined 20 million CFA francs (US$40,500 dollars) each.

In my first post on this issue, I argued that that the caricatures were protected political speech within the remit of Article 10 of the European Convention on Human Rights. Since then, TJ has pointed out to me (off blog) that there is a decision of the European Court of Human Rights directly on point. (I had missed it; or if I had seen it, I had forgotten about it; so, either way, I’m grateful to TJ for bringing it to my attention). In Vereinigung Bildender Künstler v Austria Application no 68354/01, [2007] ECHR 79 (25 January 2007) held that an injunction against the display by the applicant gallery of a collage of various public figures, such as Mother Teresa of Calcutta, the former Austrian cardinal Hermann Groer, the former head of the Austrian Freedom Party (FPÖ) Mr Jörg Haider, and other politicians, in sexual positions, infringed Article 10 of the Convention. The Court emphasised that those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society, and it was common ground in the understanding of the domestic courts at all levels that the painting obviously did not aim to reflect or even to suggest reality. Against this background, the Court found that

such portrayal amounted to a caricature of the persons concerned using satirical elements. It notes that satire is 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. Accordingly, any interference with an artist’s right to such expression must be examined with particular care.

The injunction had been sought by Walter Meischberger, a member of Haider’s party who also appeared in the painting, and the Court considered that this portrayal related not to Meischberger’s private life but rather to his public standing as a politician who therefore had to display a wider tolerance in respect of criticism. Moreover, the injunction was not limited either in time or in space. As a consequence, the Court concluded that, having balanced Meischberger’s personal interests and taking account of the artistic and satirical nature of his portrayal, as well as the impact of the measure at issue on the applicant association, there was an unjustified infringement of Article 10 of the Convention.

In other words, the Cowen caricatures are protected political speech, and there is no use in Cowen crying over spilt milk now.

Finally, some more Cowengate coverage online, since my previous sets of links:

A Articulate (on ABC News) | Arse end of Ireland

B Belfast Telepgraph | Bock the Robber, passim but esp here and here | Brian – censorship is pants

C Caricatures Ireland | Common Endeavour | Conor | Corkman | Culch.ie here and here

D Daily Dude | Dave Mac on the Blog | Declarations and Exclusions | Dossing Times

E Eric’s Diary

F Faduda | Fin O’Reilly

G Greenwich Diva | GUBU Nation | GubuWire

H Herald.ie

I I like the colours | Independent (also here) | Ireland: and the Boom that Never Was | Irish Independent here, here, here , here, here, here, here and here | Irish Libertarian | Irish Life Guide | Irish Times here, here, here, here, here | Is it just me?

J Jaedi | Jizzwax Rainbow

K Khmer Rouge Strippergram (also here)

L La Depeche | Lette Applejuice (on flickr)

M Maigh Nuad Dreams | Mayo News | Mazine | Munster Express | My Pink Half of the Drainpipe

N New Atlantacist | Newshoggers | NewsworthyPolls

O Offaly Express | Omniablog | Omnium

P PA | Paul Carr’s China Diary | PathfinderPat | Public Inquiry here and here

R Rick O’Shea

S Satireandcomment | Scamp | Sharona’s Shambles | SkepticLawyer | Severian Rants | Smoke and Mirrors | Soft Irish Rain | Sopabox Ireland | Strong Language | Sunday Tribune

T The College View | The Deadline | The Dossing Times | The Inquiring Mind here and here | The Various Ramblings of Danny Invincible | This is what I do | Tuppenceworth

U Ukulele Ireland | utalkmarketing

W WalesOnline | Wikipedia

Although doubtless there will be further developments in the story, (update: to some of which I have linked here), this is the last collation of links that I’ll undertake.

6 Responses to “Cowengate: no use crying over spilt milk”

  1. hpl says:

    As for the ECHR-judgment, I’d like to point out
    1. that the Court explicitely did “not find unreasonable the view … that the scene in which Mr Meischberger was portrayed could be understood to constitute some sort of counter-attack against the Austrian Freedom Party, whose members had strongly criticised the painter’s work.”
    2. that Meischberger was not alone in the painting, but one of 33, most of them mor prominent
    3. that the part of the painting depicting Meischberger had been damaged so “that notably the offensive painting of his body was completely covered by red paint.”
    So although I agree that the caricature at the heart of “Cowengate” probably would be considered protected poltiical speech by the ECHR, I would also be careful as to the generalization of the Vereinigung Bildender Künstler (VBK)-Case, as the facts of the case were rather special.
    Also, in the VBK-Case, the court was split 4:3, and there is a strong dissenting opinion!

    PS: In Austria we once had a court case involving a photo montage where the head of our then Chancellor (prime minister) was put on a naked body, with the caption “The Emperor’S new clothes”; in that case, the Austrian Supreme Judicial Court awarded damages (less than 1500 Euro) to the prime minister; to my knowledge, the case was not tested at the ECHR.

  2. Eoin says:

    Thanks, Hans Peter, for the comment. I’m delighted you stopped by, and I’m thrilled that the comments are being used for a discussion of an interpretation of a case. As can probably predict, however, I’m not yet convinced that VBK needs the kind of careful handling you suggest. For example, it seems to me that every ECHR judgment seems special on its facts, and many are often quite closely decided; however, when they come to be relied upon in later cases, they are often cited and followed for the issue of principle they decide, rather than being confined by their facts. As a consequence, I think that it is not illegitimate to cast such cases at a high degree of generality.

    More than that, I’m not sure that the three points you make dilute the impact of the case very much anyway. The first one reinforces the political nature of the collage, which seem to me to support rather than to undercut my argument about the collage in VBK and the Cowen caricatures constituting protected political speech. The second one downplays the prominence of Meischberger in the painting, and the third observes that he is no longer visible due to the subsequent defacing of the painting. But I don’t think either of these facts is particularly strong. Meischberger may not have been the most prominent politician in the collage, but he was pretty outrageously portrayed; it was to this portrayal that he objected (notwithstanding that it was minor relative to the others, or subsequently vandalised); and it was this portrayal that was in issue in the case.

    In any event, I’m glad we both agree that agree that the caricature at the heart of “Cowengate” probably would be considered protected political speech by the ECHR. And I look forward to any other comments you might make about this post or any others you might drop in on from time to time!

  3. […] follow-on: a question, and more pictures at the exhibitions, Cowengate and seditious libel, and Cowengate: no use crying over spilt milk. There will be no further amendments here – the text of this post is now […]

  4. In Austria we once had a court case involving a photo montage where the head of our then Chancellor (prime minister) was put on a naked body, with the caption “The Emperor’S new clothes”; in that case, the Austrian Supreme Judicial Court awarded damages (less than 1500 Euro) to the prime minister; to my knowledge, the case was not tested at the ECHR.

  5. […] the press in Italy is in a sorry state, and Berlusconi’s three cases are simply the latest in a long line of such law suits instigated by him (not all have gone his way: last year, The Economist […]

  6. Eoin says:

    As for cartoons and Article 10, see also Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004) and Leroy v France 36109/03 (2 October 2008).

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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