Background

In M’Bala M’Bala v France [2015] ECHR No. 25239/13, at the end of a show on 26 December 2008 at the Zénith in Paris, Dieudonné M’Bala M’Bala, a comedian, had invited Robert Faurisson, an academic convicted several times in France for Holocaust denial, to join him on stage to receive a “prize” in the form of a three-branched candlestick with an apple on each branch. The “prize” was given to him by an actor wearing what was described as a “garment of light”: striped pyjamas on which there was sewn a yellow star bearing the word “Jew”.

M’Bala M’Bala was charged before the Paris tribunal de grande instance with insulting a person or group of persons on account of their origin or of belonging (or not belonging) to a given ethnic community, nation, race or religion: specifically in this case persons of Jewish origin or faith. He was found guilty and fined €10,000, with a token euro in damages to each civil party. The court held that M’Bala M’Bala could not have been unaware that Faurisson was a leading Holocaust-denier and that his remarks would be insulting to persons of Jewish origin or faith. Moreover, though in a democratic society caricature and satire – even deliberately provocative or vulgar satire – were clearly a matter of freedom of expression, the right to humour nevertheless had certain limits: in particular, respect for the dignity of the human person. M’Bala M’Bala had gone far beyond those limits. In 2011 the Paris Cour d’ Appel upheld the judgment and the Court of Cassation dismissed his appeal in October 2012.

Before the Fifth Section ECtHR M’Bala M’Bala complained that his conviction had been in breach of Articles 7 (no punishment without law) and 10 (freedom of expression).

The judgment

The Fifth Section had no doubt that offending part of M’Bala M’Bala’s show was highly anti-Semitic. The Court also noted that he was a comedian who had shown his strong political commitment by standing for election a number of times and that he had already been convicted for racial insults. He had also stated his wish to do better than in one of his previous performances, which had been described as “the biggest anti-Semitic rally since the Second World War”. The Court therefore agreed with the Paris Court of Appeal that  the offending scene of the performance as a whole could no longer be seen as entertainment but had taken on the appearance of a political meeting.

That part of the show was a demonstration of hatred and anti-Semitism and support for Holocaust denial; and the Court was of opinion that it was not a performance which, even if satirical or provocative, fell within the protection of Article 10: it was an expression of an ideology that ran counter to the values of the Convention. The Court further observed that while Article 17 (prohibition of abuse of rights) had in principle been applied in previous cases to explicit and direct remarks that did not require any interpretation, a blatant display of hatred and anti-Semitism disguised as an artistic production was as dangerous as a head-on attack and did not deserve protection under Article 10. M’Bala M’Bala had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destruction of Convention rights and freedoms.

Consequently, the Court found that under Article 17 M’Bala M’Bala was not entitled to the protection of Article 10; and the application was dismissed as incompatible with the provisions of the Convention, in accordance with Article 35 §§ 3 (a) and 4 (admissibility criteria).