Bajd u Bejken and the right to offend, shock and disturb

Freedom of expression is one of those principles enshrined in the European Convention on Human Rights that gets many people’s knickers in a twist. 

The latest controversy over an episode from Bajd u Bejken, a comedy podcast, is a case in point. 

The episode in question, which had been aired several months ago but went viral recently, had the presenters referring to the murder case of Twannie Aquilina in a skit about naughty children and how parents could possibly react to their behaviour. 

A brief digression is needed here to explain the case, which had shocked the country 65 years ago and which resurfaced in popular imagination a few years ago when Xarabank made a whole series about it. 

Aquilina was eight years old when he was brutally murdered in 1960. The boy had been subjected to abuse by his mother and step father, who were later charged with the murder. Both were convicted and Twannie’s mother, Giga Camilleri, was handed down the death penalty, later commuted to a life sentence. Decades later, former police assistant commissioner Raymond Zammit, claimed in a study of the case that a miscarriage of justice may have occurred. 

As expected, the Bajd u Bejken episode caused furore on social media and beyond. Many lashed out at the presenters for being insensitive. There were also some voices questioning whether such banter should even be allowed. 

Undoubtedly, making broad reference to a brutal murder case involving a child within a comedy show is always going to cause shock. It may also offend some… or many. 

But this is the essence of what constitutes freedom of expression. In the 1976 landmark judgment in the case Handyside vs the UK, the European Court of Human Rights (ECHR) set out the principles that characterised a ‘democratic society’ insofar as freedom of expression is concerned. 

The ECHR said freedom of expression constitutes one of the “essential foundations” of a democratic society, calling it “one of the basic conditions for its progress and for the development of every man”. 

But the court did not stop at that. Subject to restrictions contemplated at law (we will come to these later), the ECHR said freedom of expression is applicable: “…not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” 

The court continued that every “formality, condition, restriction or penalty” imposed in this sphere must be “proportionate to the legitimate aim pursued”. 

In a nutshell, what would a democracy worthy of its name be if only information and ideas that are agreeable or inconsequential can be disseminated? 

Freedom of expression is a core principle without which society cannot evolve; without which change ends up being determined by the few; without which oppression and dictatorships arise. 

This does not mean that freedom of expression is absolute. Indeed, this is why defamation laws exist. This is why there are criminal sanctions if freedom of expression is used to threaten or foment hatred. The right to freedom of expression carries with it duties and responsibilities that cannot be understated. 

But what Bajd u Bejken did in the episode under scrutiny falls outside the parameters that would require such ideas or comments to be censored in any way. 

What the presenters said may be in bad taste and offensive but they still have a right to say it. Likewise, others who disagree with them have a right to express a contrary opinion or pass harsh judgement on their podcast. What the presenters decide to do with the criticism directed towards them is up to them, ultimately. 

But even here, there is a context within which the offensive reference was made. Bajd u Bejken is a comedy show with no holds barred. Anyone who wants to listen or be part of it, knows this up front. The jokes shared between the presenters and their guests may be crude and replete with sexual innuendos reminiscent of secondary school banter but putting limits on comedy is akin to eating a pastizz while holding it with a tissue. Comedy, like art, is meant to be messy, provocative and at times shocking. 

Interfering with this will degrade the very essence of what a pluralistic democracy is all about.