ECtHR confirms hate speech against LGBTI people is not freedom of expression

This article was drafted by ERA's Advocacy Intern Sofia Barakou

The European Court of Human Rights the last years continually takes a stand and disapproves discriminatory behaviors based on sexual orientation and gender identity and the Carl Jóhann Lilliendahl against Iceland case confirms the existing case law.

Summary of facts

After the municipal council of a town in Iceland approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender, the matter was reported in the news and led to public discussion.

On an online news article, one of the initiators of the proposal, strongly criticised the radio show, which was hosting the public discussion, for allowing people to express “clear prejudice and hate speech”. Hereupon one participant of the discussion, and the applicant in the case, made the following comment: “We listeners of [the radio show] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó- the  abovementioned initiator of the proposal]. This is disgusting. To indoctrinate children with how kynvillingar [literally ‘sexual deviants’] eðla sig [‘copulate’, primarily used for animals] in bed. [Ó.S.Ó.] can therefore stay at home, rather than intrude upon [radio show]. How disgusting. The case was immediately reported to the police by the national LGBT association.

After successive decisions, the case reached to the Supreme Court, which by overturning the District Court’s judgement, convicted the applicant for his comments. According to the Supreme Court’s judgement, the relevant article of the General Penal Code (223 (a)) extends its protection to sexual orientation and gender identity following the ratification of the United Nations’ Convention on the Elimination of All Forms of Racial Discrimination and puts a legitimate and proportional limitation of freedom of expression. The Supreme Court found that private life interests, such as sexual orientation, outweigh freedom of expression, when the content is prejudicial, hateful and contemptuous against certain social groups.

Application declared inadmissible

The case reached to European Court of Human Rights, when the convicted person claimed violation of his freedom of expression and the prohibition of discrimination.

Before examining applicant’s complaints, the Court considered the application of article 17 of the Convention for prohibition of abuse of rights. However, as pointed out in a previous case Article 17 is applicable on an exceptional basis and in the present case it is not immediately clear that the applicant’s comments aimed at inciting violence and hatred or destroying the rights and freedoms protected by the Convention, in order to reach the threshold of applicability of article 17.

The applicant’s complaints mainly focused on article 10 of the Convention for violation of freedom of expression and subsequently on article 14, in conjunction with article 10, for prohibition of discrimination; he complained that his conviction had violated his freedom of expression in an unequal way compared with people with other opinions.

The Court started building its verdict by admitting that freedom of expression is one of the foundations of a democratic society. In order to justify any potential interference, that must consider as necessary and proportionate to the legitimate aim pursued. Τhe State has admittedly a certain margin of appreciation which in fact goes hand in hand with European Supervision and Court’s ruling.

Furthermore, it has been carefully examined by the Court if the comments amounted to hate speech. With the present case the European Court of Human Rights gave a different dynamic to the meaning of hate speech by dividing it in two categories; the gravest forms which can fall under article 17 and excluded entirely from the protection of article 10; in the less grave wherein restrictions of freedom of expression are permissible. The comments of the applicant fall under the second category according to the jurisprudence, as they were “serious, severely hurtful and prejudicial” and promote intolerance and detestation of homosexual persons.

The Court concluded that authorities can combat prejudicial speech even when the speech focuses on attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population. The assessment of the content of the expression and the manner of its delivery are factors that the Court took into consideration.

Thus, it was thoroughly examined the legitimate of the limitation. Firstly, the interference was described by law and more precisely article 233 (a) of the General Penal Code which penalizes publicly mocking, defaming, denigrating or threatening a person or group of persons for certain characteristics, including their sexual orientation or gender identity. Secondly, it served a legitimate aim, which was the protection of the right to respect for private life and the right to enjoy human rights equally to others. In the last stage, the Court concluded that the interference was necessary in a democratic society.

The Court unanimously declared the applicant’s complaints and the application inadmissible.

Comments

The European Court of Human Rights the last years continually takes a stand and disapproves discriminatory behaviors based on sexual orientation and gender identity. The Carl Jóhann Lilliendahl against Iceland case confirms the existing case law. Undoubtedly is a progressive and positive step for the protection of LGBTI rights. The Court clearly stated that anti-gay speech is hate speech and consequently impermissible. The zero-tolerance approach against homophobic comments shall be adopted by all member countries.

Nevertheless, there is always room for improvement. More precisely, the Court could have classified the comments of the applicant in the first category of hate speech, as gravest form, providing by that a greater protection to LGBTI rights. Keeping in mind the manner and the content of the comments, but also the fact that ECHR acknowledged that they “promoted intolerance and hatred of homosexuals”, there is no space for not including them in the gravest forms.

To conclude, LGBTI community cannot and should not left behind. The legal framework but also the implementation of it have to protect LGBTI persons from hate speech incidents and ensure the equal enjoyment of their rights.