Let them eat (their own) cake: insulting the crown and freedom of expression

Abstract

This thesis examines whether the crime of insulting the crown is a proportional limitation to freedom of expression. The thesis is divided into two main chapters: a legal or normative approach to the problem, and a more pragmatic or political one. To contextualise the use of this crime, the red lining through the thesis are the convictions of two Catalan rappers, Valtònyc and Pablo Hasél. After explaining the constitutive elements of the crimes in the two relevant legal regimes (i.e., Spain and Belgium), the principle of freedom of expression gets briefly explained. According to the criteria set out by the ECtHR, is this protection of the monarch(y) a proportionate limitation to Article 10 ECHR? No: special crimes giving the king more protection than ordinary citizens are not in spirit of the Convention. In the second part, five different political reasons why the monarchy maybe deserves less protection than ordinary citizens are explained: the chilling effect, the monarch compared to politicians, the vagueness of context, the unwanted effects of convicting and – very specific to the Spanish case – the appearance of discrimination. Taking both the legal and pragmatic objections into account I conclude that the prosecution of this crime causes more harm than good. It is, literally, no vale la pena.