This was the situation facing the Court in Sousa Goucha v Portugal, which I first wrote about back in 2014 when the case was communicated. The judgment by the Fourth Section of the Court, which was issued on 22 March 2016, is interesting for a number of reasons.
First, in considering whether Article 8 of the Convention was applicable in the context of the complaint, the Court "reiterates that sexual orientation is a profound part of a person’s identity and that gender and sexual orientation are two distinctive and intimate characteristics" (§ 27). This is one of those statements by the Court that, although seeming to "reiterate" previous case law, actually amounts to a usefully new conceptualisation of sexual orientation as a "profound" aspect of "identity". However, the statement that gender and sexual orientation are "distinctive" can be regarded as somewhat sociologically naive given the decades of debate about them being entirely interdependent.
Second, and relatedly, the Court stated that "[a]ny confusion between the two [sexual orientation and gender identity] will therefore 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" (§ 27). This is an astonishingly far-reaching statement. The idea that "any confusion" can be seen to "constitute an attack" seems an amazing statement in the context of European societies where expressions of "confusion" over the interrelationship between gender identity and sexual orientation - especially when these take non-normative forms - appears to be endemic. In this respect, the Court might worry about its own "confusion" in this area. For instance, in Hämäläinen v Finland three dissenting judges criticised the majority for failing to adequately distinguish between same-sex transgender partners and homosexual partners. Could this confusion constitute an attack?
Third, in rejecting the applicant's complaint under Article 8, the Court advanced a classic "Handyside" argument, stating that:
the domestic courts did convincingly establish the need for placing the protection of the defendants’ freedom of expression above the applicant’s right to protection of reputation ... in particular, ... 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. A limitation on freedom of expression for the sake of the applicant’s reputation would therefore have been disproportionate under Article 10 of the Convention (§ 55).In other words, the Court deferred to the expertise of the domestic authorities to strike a fair balance and stated that there was "no reason to substitute its view for that of the domestic courts" (§ 56). This seems reasonable enough since the essence of the complaint concerned the entire social context in which the programme was produced and broadcast. However, the Court could have added its own consideration of the social context in question in order to underpin its argument that there was "no reason" to substitute the domestic court's view with its own. As dissenting members of the European Commission of Human Rights said in the Handyside case: domestic courts provide only one interpretation of the relations of a society and, therefore, the Convention organs cannot rely entirely on their interpretation.
Fourth, in dismissing the applicant's complaint under Article 14 taken in conjunction with Article 8 the Court stated that
there is nothing to suggest that the Portuguese authorities would have arrived at different decisions had the applicant not been homosexual ... The reason for refusing to prosecute seems rather to have been the weight given to freedom of expression in the circumstances of the case and the lack of intention to attack the applicant’s honour. Consequently, in the absence of any firm evidence, it is not possible to speculate whether the applicant’s sexual orientation had any bearing on the domestic courts’ decisions (§ 65).Again, that seems reasonable on the whole but what appears to be very unconvincing is the Court's side-stepping of the fact that the domestic courts did refer to the applicant's sexual orientation in a particular way: they had noted that the applicant dressed in a “colourful way” and hosted television shows which were generally watched by women. The Court was persuaded by the Government’s argument that these statements were “debatable” and “could have been avoided”, but did not have discriminatory intent (§ 66). The Court could have explained why the statements of the domestic courts did not amount to discrimination under the Convention.
Hugh Tomlinson describes the judgment in Sousa Goucha v Portugal as "an unsurprising result by an unsatisfactory route". I agree. It is difficult to see how a (very bad) homophobic joke, in the context it was made, could amount to a violation of any aspect of the Convention. But given the broader contexts of the European societies in which such jokes are made - where they will often be the manifestations of the "drip drip drip" of everyday homophobia - the Court should have been more careful in its analysis and reasoning. It should not, in my view, have simply defaulted to the reasoning of the domestic authorities but should have offered its own reasoning as to why this joke - but perhaps not other forms of speech - did not violate the Convention.