Populaire cultuur berecht: mensenrechten als instrumenten voor cultuurbehoud of verandering ?

This doctoral research explores how the controversies surrounding the use of racial stereotypes in popular culture could have been considered in the light of the European Convention on Human Rights. Chapter I outlines the research objectives and questions, the methodological choices, and the research structure, and covers the delineation of the case studies and the analysis. In Chapter II, the legal framework concerning cultural heritage and human rights law is explained. Chapter III deepens the cases of European popular culture used for the legal analysis, distinguishing three groups of controversies concerning racial or ethnic stereotypes. The first category deals with the controversial practice of 'blackening' a white person to portray a black or brown character, examining cases such as 'Zwarte Piet,' 'Le Sauvage d'Ath,' 'Les Noirauds des Bruxelles,' and 'La Nuit des Noirs.' The second group revolves around carnival traditions and the persistent use of stereotypes, with a particular focus on the Aalst Carnival. Finally, the third group focuses on the contentious use of stereotypes in comics and children's literature, including the controversies surrounding 'Tintin in the Congo' and the naming of Pippi Longstocking's father as 'the Negro King.' While these initial chapters (Chapters I, II, and III) provide an essential foundation for developing a comprehensive understanding of the study, Chapters IV and V summarize the essence of this doctoral thesis. These chapters serve as the focal point where the analysis unfolds, shedding light on the intricate complexities inherent in the subject. Chapter IV of the thesis extensively explores the legal dimensions of the case studies in question, examining perspectives of both preservation and change. The perspective of preservation is examined through the lenses of freedom of expression (Article 10 ECHR) and personal autonomy (Article 8 ECHR), while the perspective of change concerns the right to private life (Article 8 ECHR) in combination with the principle of non-discrimination (Article 14 ECHR) and the restrictions on freedom of expression, with a specific focus on hate speech. The division of perspectives—preservation and change—proves vital for legal analyses, as shown in the relevant chapter. Chapter V addresses the human rights conflict that emerges most frequently in the controversies (as well as in the various approaches and hypotheses). This conflict primarily revolves around the tension between the right to freedom of expression as interpreted by Article 10 ECHR and the right to a private life outlined in Article 8 of the ECHR in combination with the non-discrimination principle delineated in Article 14 ECHR. The salient question here is what relative weight should be given to these rights in the context of the controversies. This requires an examination of the relative importance of the concrete aspects of the rights at stake, the need to restrict or protect each of them, and the proportionality between the means used and the objective sought. This chapter formulates potential criteria relevant for inclusion in the respective consideration. These criteria, derived through analogy and creative reasoning from ECHR legal cases, are carefully selected for their relevance in diverse contexts of popular culture. Given the diversity inherent in popular culture case studies, not all of these criteria are universally applicable to each case. Certain criteria may hold greater relevance in specific cases compared to others. Additionally, the exclusion of certain criteria is not arbitrary; it stems from a thoughtful evaluation of their applicability. The aim is to explore the criteria's context-specific nature, acknowledging the possibility that other, hitherto unconsidered criteria might emerge. The criteria to be taken into account are the inherent nature of the expression in question, whether the expression contributes to a debate of public interest, the reach (and means of dissemination) of the form of expression in the broader public sphere, whether the expressions are aimed at children, the vulnerability of the stereotyped group, the potential harm that specific expressions may inflict, and the intentions driving the individual responsible for the expression. Each of these criteria, when thoughtfully examined, contributes to a comprehensive analysis of the controversies at hand. The criteria relating to the nature of expressions, the contribution to public debate (particularly within a carnival context), and the intention of the person expressing, generally support the preservation of popular culture, giving significant weight to the right to freedom of expression. In contrast, the other criteria (the reach, the target audience being children, the vulnerable position of the minority group, and the harm of the expressions on the stereotyped group) contribute more to arguments favoring the change of popular culture, holding greater weight in the balance for Article 8 ECHR in conjunction with Article 14 ECHR. However, the importance of context and time in legal judgments related to cultural matters is emphasized in this doctoral thesis. The interplay between legal principles, cultural nuances, and societal changes suggests that these controversies may evolve significantly before reaching formal legal proceedings. Ultimately, this study provides a nuanced, context-sensitive approach to balancing human rights within the dynamic landscape of popular culture, recognizing that societal shifts may drive change more effectively than legal interventions alone. In conclusion, the thesis contributes to understanding the complex relationship between human rights and popular culture, offering insights into how tradition and progress can be balanced in an ever-evolving world.