Caricatures and Satires in Art Law: The German Approach in Comparison with the U.S., England and the Human Rights Convention
Max Planck Institute for Comparative and Private International Law
European Human Rights Law Review (E.H.R.L.R.), pp. 463-487, 2008
For a long time caricatures and satires have been important and sharp tools to criticise current politics and public affairs. But the issue of how today's democratic legal orders should react to highly defamatory statements in this form is being dealt with quite differently in different jurisdictions. This article analyses the diverging jurisprudence of three national orders (England, U.S. and Germany) and one supranational constitutional regime in order to highlight that caricatures and satires need to be recognised as a distinct and sensitive category in defamation law. In some legal orders caricatures and satires have not yet become a pertinent issue. The argument is made that this needs to change, especially in Europe due to the influence of the European Convention on Human Rights. The paper thus refutes the widely held belief that caricatures and satires are simply non-libellous. The issues addressed are: (1) the subject matter of the caricature; (2) the circumstances and context of the caricature; (3) the significance of the fact-opinion distinction; (4) the status of the person involved; (5) the role of the constitutional courts; and (6) the artist's intent to harm.
Keywords: defamation law, freedom of speech, torts, constitutionAccepted Paper Series
Date posted: December 11, 2008
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