In the case of Sousa Goucha v Portugal ( ECHR 284) the Fourth Section of the European Court of Human Rights held that the dismissal of a domestic defamation action by a gay television presenter was not a breach of his Article 8 right to reputation or of the prohibition of discrimination in Article 14. The Court deferred to the reasoning of the domestic court that a “joke” suggesting that the applicant was female was not defamatory.
The applicant, Manuel Luís Sousa Goucha, is one of the best-known television presenters in Portugal, having worked in the media for almost 40 years. He publicly declared his homosexuality in 2008.
During a TV quiz show, the guests were asked to answer the following question: “Who is the best Portuguese female TV host?” The possible answers to the question included the name of three female television hosts and the applicant’s; the latter being the “correct” one ().
The applicant lodged a criminal complaint for defamation and insult against the State-owned television company, RTP, the production company, the television presenter and the directors of programming and content. He alleged that the “quiz” had damaged his reputation as it had mixed his gender with his sexual orientation.
In April 2012 the Portuguese courts ultimately dismissed his claim for damages as ill-founded. They considered that for a reasonable person, the joke would not be perceived as defamation because it referred to Mr Sousa Goucha’s characteristics, behaviour and way of expressing himself which could be seen as feminine.
Furthermore, the courts, taking into account the playful and irreverent style of the show, considered that the defendants had not intended to criticise Mr Sousa Goucha’s sexual orientation.
On 23 October 2012, Mr Goucha made an application to the Court of Human Rights, relying on Articles 8 and Article 14. He complained that the domestic courts had based their decisions to dismiss his case on discriminatory grounds, namely his sexual orientation.
The Court noted that the impugned joke included the applicant in a list of female hosts which, in the applicant’s view, mixed his gender with his sexual orientation. Sexual orientation is a profound part of a person’s identity and that gender and sexual orientation are two distinctive and intimate characteristics. Any confusion between the two will constitute an attack on one’s reputation capable of attaining a sufficient level of seriousness for touching upon such an intimate characteristic of a person. As a result, Article 8 applied to the case .
The Court reiterated that, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection and respect for his or her private life. As a result, the fact that an individual belongs to the category of public figures cannot in any way, even in the case of persons exercising official functions, authorise the media to violate the professional and ethical principles which must govern their actions, or legitimize intrusions into private life (see Couderc and Hachette Filipacchi Associés v. France, Case no. 40454/07, ).
In cases such as the present in where the complaint is that rights protected under Article 8 have been breached as a consequence of the exercise by others of their right to freedom of expression, regard must be had to Article 10. The two rights must be balanced – with there being no hierarchical relationship between the two . The outcome should not vary according to whether is is approach from the perspective of Article 8 or Article 10.
The Court reiterated that satire is a form of artistic expression and social commentary which aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care (see Vereinigung Bildender Künstler v. Austria  ECHR 79 ). It noted that the standard to be applied was that of the “average” or “reasonable” reader when looking at satirical material. 
However, in contrast to earlier cases the joke was not made in the context of a debate of public interest.
The domestic courts had to decide whether the joke fulfilled the elements of the offence of defamation. The relevant part of the domestic decision was
“Given the defendants’ statements, it is clear that they did not intend to attack the [applicant’s] honour. Nor did they anticipate this as possible. The subjective element of this criminal offence is therefore unverified.
The [applicant] is a public figure and so must be used to having his characteristics captured by comedians in order to promote humour; it being public knowledge that [the applicant’s characteristics] reflect behaviour that is attributed to the female gender, such as his way of expressing himself, his colourful [feminine] clothes, and the fact that he has always lived in a world of women (see, for example, the programmes he has always presented on television).
The [assistente] has recently made his homosexuality public, and the defendants never intended to criticise his sexual orientation”  .
The claims were dismissed as ill-founded. They considered that for a reasonable person, the joke would not be perceived as defamation because it referred to the applicant’s characteristics, his behaviour and way of expressing himself.
In their assessment, the domestic courts took into account the context in which the joke had been made, in particular by taking into account the playful and irreverent style of the television comedy show and its usual humour. Additionally, they took into account the fact that the applicant was a public figure. The domestic courts considered that the defendants had not intended to criticise the applicant’s sexual orientation.
In short, the Court considered that 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 reputation. They took into account the defendants’ lack of intent to attack the applicant’s reputation and assessed the way in which a reasonable spectator of the comedy show in question would have perceived the impugned joke – rather than just considering what the applicant felt or thought towards the joke.
As a result, the Court concluded that the domestic courts struck a fair balance between the television show’s freedom of expression under Article 10 and the applicant’s right to have his reputation respected under Article 8.
In relation to the complaint under Article 14 (in conjunction with Article 8), the Court considered that the applicant’s sexual orientation was not a causal factor in the domestic courts’ refusal to prosecute. There was nothing to suggest that the Portuguese authorities would have arrived at different decisions had the applicant not been gay.
A number of interesting points arise from this judgment which reaches an unsurprising result by an unsatisfactory route.
First, the court did not consider the case from the perspective of “homophobic hate speech”. This was despite the fact that it permitted an intervention by the “Alliance Defending Freedom” an American conservative Christian nonprofit organization dealing with this issue (see  to ).
Second, there was the Court’s decision that the words complained of were of sufficient seriousness to engage Article 8 of the Convention. This was because the words concerned the applicant’s gender and sexual orientation. Although the Court’s case law has not been entirely consistent (see T Aplin and J Bosland, “The Uncertain Landscape of Article 8 of the ECHR: The Protection of Reputation as a Fundamental Human Right?“), it has often held in order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, ). The point was raised by ADF () but the argument was rejected by the court. As a result, the case suggests that where the attack is on a “core” element of private life such as sexual orientation this requirement may not be present.
Third, there is the discussion of “satire”. The judgment contains a clear statement of the Court’s position on the importance of “satire” – drawing on previous case law but emphasising the fact that satire must not be judged by strict standards. The question is not whether some readers would have misunderstood the satire as stating facts but whether the average or reasonable reader would have come to that view. This is obviously sensible and is in line with the approach taken by the English law.
This is welcome but not directly relevant to the case – which did not, on any view, involve “satire”. The complaint concerned a (bad) homophobic joke. As the Court itself noted, in contrast to the true “satire” cases there was no question of the “joke” in this case contributing to a debate of general interest.
In the end the Court ducked consideration of the issues by, in substance, deferring to the somewhat bizarre reasoning of the domestic court which appeared, in substance, to be that it was acceptable to compare gay men to women because of their effeminate behaviour.
Nevertheless, the decision seems plainly right. It is difficult to see how Article 8 could properly be said to be engaged and, in any event, why the applicant could be said to have been “defamed” (as opposed to offended) by what was said on the late night TV show. In the final analysis, it might be thought that the obvious answer to the application would be to say that the criminal law should not be invoked against poor taste jokes, even when they are tinged with homophobia.
Hugh Tomlinson QC is an editor of Inforrm