I. ÚS 2956/23 

An environmental organisation published on social media a modified advertising spot of the complainant – ČEZ, a. s. The organisation modified this advertisement entitled “Lighting of Christmas trees” by adding footage of damaged, dry and cleared forests and forest fires. The scenes were accompanied by a text claiming that the complainant was harming the environment through its activities. The Municipal Court in Prague ordered the environmental organisation to cease and desist the unauthorised use of the advertisement and to apologise to the complainant for such unauthorised interference therewith. According to the Municipal Court, there is no statutory licence for the use of the complainant’s work by the intervener. It is not a new piece of work. The intention was not to express an opinion through satire, but to use the work for one’s own benefit and to disparage the complainant. However, the High Court in Prague reversed the judgment of the Municipal Court and dismissed the complainant’s claim. According to the High Court, the edited commercial was a “tongue-in-cheek” rendition of the original version. Moreover, according to the High Court, it is clear that this is a fight of an environmental organisation for a healthier environment against a large polluter, which is protected by freedom of speech. The environmental association also explicitly stated that it had edited the commercial. The Supreme Court subsequently rejected the complainant’s appeal. Therefore, the complainant sought to annul the decisions of the general courts by means of a constitutional complaint. It argued that its constitutionally guaranteed rights had been violated, namely the right to the results of creative intellectual activity and the right to judicial protection.

The First Panel of the Constitutional Court (Justice Rapporteur Pavel Šámal) dismissed the constitutional complaint and did not uphold the complainant’s claim. The courts found a constitutionally acceptable and reasonable solution in the “conflict” between the complainant’s proprietary interests and the freedom of expression of the environmental organisation, which they duly justified.

Parodic or satirical artistic expressions, as contributions to public debate, are inherently bound to provoke and cause outrage. Humour, hyperbole, irony and sarcasm are, according to the Constitutional Court, a necessary part of social dialogue. In a democratic society, they contribute to the free exchange of views. Therefore, they are as such protected by freedom of expression under Article 17 of the Charter of Fundamental Rights and Freedoms. The Constitutional Court examines any interference with the freedom of these and similar expressions with particular caution. It examines them in their entire context (i.e. not in isolation). It takes into account the actual content of the information, its contribution to the debate on the issue of general interest, and the truth of its basis. Conversely, hate speech is not protected by freedom of expression, even if satirical or parodic. In this vein, the European Court of Human Rights has identified expressions of blatant Islamophobia or anti-Semitism, even if they were satirical, as speech that does not deserve the same level of protection.

Parody, humour, exaggeration, irony, sarcasm or satire may not exceed the generally accepted rules of decency. It is important to assess the overall context of the matter at hand, in particular whether it is, for example, a comic strip, a written text or a spot (as in this case). The court assesses whether the subject of the parody is publicly known and whether the idea underlying the satirical or similar speech is truthfully based in reality. It is also significant whether such a statement contributes to the public debate on social issues.

The Constitutional Court considered the circumstances under which the edited advertisement was published to be significant. It was clear from the very introduction of the spot that it was not an “official” advertisement of the complainant, but rather an attempt by someone else to draw attention to the environmental impact of the complainant’s activities using exaggeration or irony. Neither the spot itself nor the way it was disseminated could cast any doubt on its parodic meaning and the underlying idea. Moreover, the complainant is known for its work in the energy sector, which by its very nature involves massive environmental interventions. Therefore, according to the Constitutional Court, the complainant is obliged to endure a tolerable level of criticism of its activities, even if the criticism uses parody. The spot drew attention to the general issue of environmental protection, which has become increasingly urgent in recent years, especially in the context of ongoing climate change and its impact on society. The spot contained substantive criticism of the complainant, not, for example, a call to violence.

The Constitutional Court also addressed whether the interpretation of the Copyright Act, which includes rights related to copyright under the scope of the statutory licence for caricature and parody, constitutes an impermissible manifestation of judicial interpretation of the law (specifically, the interpretation of Section 38g of the Copyright Act). The statutory licence for parody resolves the conflict between freedom of expression and the constitutionally guaranteed right to own property or the guaranteed protection of rights in the results of creative intellectual activity. The Supreme Court, which is called upon to unify civil law, has already concluded in a “pilot decision” that the legislature did not intend to exclude copyright-related rights from the reach of the statutory licence for parody. According to the Constitutional Court, the Supreme Court’s conclusions are reasonable and logically justified. Therefore, from the point of view of constitutional law, they have stood.

Nor does the Constitutional Court find any error in the fact that the Supreme Court, in its resolution, merely referred to the conclusions expressed in a judgment in a similar case (between the same parties) of the same date. It is common in judicial practice to apply the pilot-judgment procedure when deciding comparable cases. Once again, the degree of justification required depends on the circumstances. In this case, it is clear from the Supreme Court’s decision why the court chose the solution adopted in the pilot decision.