Laughing on the edge

Dark humour, i.e. humour engaging with sinister or distressing topics, is often at the centre of complex legal cases regarding freedom of expression and its limits. On the one hand, this type of humour is safeguarded in principle by international free speech standards, which should also apply to expressions that “offend, shock or disturb the State or any sector of the population” (as emphasised by the European Court of Human Rights in Handyside v. United Kingdom). On the other hand, jokes about terrorism, natural disasters or other highly sensitive subjects are frequently taken to court under charges such as incitement to discrimination, hostility or violence. Even within the same judicial system, the courts’ approach to these cases is often unpredictable, and would arguably benefit from a more nuanced perspective on dark humour as a form of expression. While acknowledging the inherently subjective nature of humour interpretation, this article proposes an indicative distinction between three basic genres of dark humour, or three potential outcomes of the interpretive process—namely ‘disparaging’, ‘sarcastic’, and ‘taboo-breaking’ dark humour. This theoretical framework is subsequently illustrated through the analysis of relevant legal cases from different jurisdictions, including the European Court of Human Rights and domestic courts from Spain, Italy, Belgium, Scotland and Canada. In conclusion, moving beyond the specific case of dark humour, this article outlines the potential benefits of a closer dialogue between humour research and judicial practice.