Hate speech comments about a same-sex kiss on Facebook violate the prohibition of discrimination

This article was drafted by ERA's intern Sofia Barakou

The landmark judgement of the European Court of Human Rights, delivered on 14 January 2020 in the case of Beizaras and Levickas v. Lithuania, recognises that the refusal of the Lithuanian authorities to launch a pre-trial investigation for hate speech comments on the grounds of sexual orientation violates Article 14 (prohibition of discrimination), taking into conjunction with Article 8 (right to private and family life), as well as Article 13 (right to an effective remedy) of the European Convention on Human Rights. The judgement was delivered unanimously and is not yet final.

Summary of facts

The applicants, two Lithuanian nationals in a same-sex relationship, after posting on Facebook a photograph of them kissing each other, received hundreds of derogatory and threating messages. Almost all of them, were not just degrading but also detrimental to their dignity and were including generalised threats of physical harm. Comments included, among others, the following:

“Because you’re faggots and children can see photos such as these, it’s not only the Jews Hitler should have burned”;

“Into the bonfire”;

“Satan, please allow me to smash their heads into a wall”,

“These faggots fucked up my lunch";

“If I was allowed to, I would shoot every single one of them”;

“Scum!!! Into the gas chamber with the pair of them”;

“Hey fags - I’ll buy you a free honeymoon trip to the crematorium”;

“Fucking faggots – burn in hell, garbage”;

“For fuck’s sake ... You fucking gays – you should be exterminated FU”;

“Burn the faggots, damn it”; “Fuck you – damn it, kill yourselves, faggots”;

“Oh for fuck’s sake – get the fuck out of Lithuania and don’t shame us, you fucking capon; we should put your head under a car and into the noose, you fucking faggot”

These comments reveal an attitude which undoubtedly incite violence and hatred against LGBTI people in general and personally against the couple. After this viral post, the two Lithuanians also had to deal with consequences in their daily lives. Namely, the headmaster of the secondary school of the first applicant asked him “not to disseminate his ideas”, while from the second, student at the faculty of theology, was asked to change his course of study because his “lifestyle did not correspond with the faculty’s values’’. The serious impact on their everyday life proves the essential intervention of the Court.

The two gay men requested from LGL Association, a non-governmental organisation, to defend their rights, as Lithuanian legal system does not provide guarantees for victims of homophobic hate crimes and the fear of retaliation was existential. LGL lodged complaint in the Prosecutor’s General Office, claiming criminal liability based on Article 170 of the Lithuanian Criminal Code for “Incitement against any national, racial, ethnic, religious or other group of people” and violation of  Article 19 § 1 of the Law on the Provision of Information to the Public, which prohibits publishing in the media information that incites hatred or violence against a group of people because of their sexual orientation. It is important to mention that associations can bring legal procedures in defence of their members’ interests and the two applicants were members of LGL Association.

However, prosecutor decided not to start a pre-trial investigation. According to his stance, to establish the criminal nature of those comments should have constituted an active attempt, which requires a systematic action and this condition was not fulfilled; the context in which the comments has been written is also important and all of them were written individually and not collectively. Characterizing the comments “"unethical” and merely opinions" in the context of freedom of expression, there were no constituent elements of criminal liability. Domestic courts, endorsing prosecutor’s stance, considered applicants’ behaviour "“eccentric” and provocative". Thus, the appeal court considered the “mere use of obscenities” and the “choice of improper words” not enough to incur criminal liability. Moreover, pointed out that the freedom of expression is inseparable with the respect of others’ views and the importance of posting in a public space, as the post was visible and accessible even in people unknown to the couple and it would have been preferable for the applicants to share their photograph with “like-minded people”. According to the stance, the eccentric behaviour of the applicants did not contribute to the cohesion within the society, the major part of which very much appreciate traditional family values.  

Judgement of ECtHR

The Chamber of the European Court of Human Rights tried to find a fair balance between two competing interests. From the one hand, freedom of expression on the Internet and from the other - the right to respect of private life. The Court’s decision was that the applicants have been discriminated on the grounds of their sexual orientation.

The Court accepted breach of the prohibition of discrimination (Article 14), in conjunction with the right to respect private and family life, as sexual orientation and sexual life are part of it (Article 8). Thus, pointed out that “where a difference in treatment is based on sex or sexual orientation, the State’s margin of appreciation is narrow”. In fact, sexual orientation of the applicants played an important role on the way they had been threated by the authorities, as extensively characterised their behaviour as “eccentric”. Replying to the Government’s stance that the applicants’ intention had not been to announce the beginning of their relationship, as they were trying to represent to the Court, but instead to start a public discussion about the rights of LGBT persons in Lithuania, the Court clarifies that neither of these reasons are illegitimate or meriting their suppression; pointed out also the right of individuals to openly identify themselves as gay, lesbian or any other sexual minority and to promote their rights and freedoms. The Court does not overtake, also, the argument of the Government that homosexuality was not a ground itself for the refusal to start a pre-trial investigation. The Court declared that the references, at first, in the picture of two men kissing each other did not contribute to social cohesion and the promotion of tolerance and secondly the fact that the applicants should have shared such pictures among “like-minded” people, clearly proves that the grounds for refusing to open a pre-trial investigation was the courts’ disapproval of the applicants’ demonstrating their sexual orientation. The Court pointed out, also, that under Lithuanian Law, if a crime may be committed the authorities are under the obligation to investigate it, even if an anonymous application is received. Consequently, the Court denied Government’s statements with a critical justification and impute directly the refusal of launch pre-trial investigation to the sexual orientation of the applicants.

Regarding to infringement of the right to an effective remedy (Article 13), the Court with previous case law stressed that exercise of remedy must not be unjustifiably hindered by the acts or omissions of the authorities. In the present case, from the Court requested to respond if generally effective remedies are considered not to have operated effectively in a particular case due to discriminatory attitudes negatively affecting the application of national law. As the majority of those who had posted the threatening comments were using their personal profiles, the statement of failure to establish their identity and bring into justice is tenuous. Reports made by international bodies, for instance from European Commission against Racism and Intolerance (ECRI), noted an increasing feeling of intolerance against sexual minorities and no specific tools from Lithuanian authorities to tackle homophobic hate speech. The Court’s decision predicts the importance of truly effective domestic remedies for cases of discrimination based on the sexual orientation. In order to be effective, these must be available in practice as well as in law, which in the present situation had not happened. Consequently, there was also violation of Article 13 for the effective remedy.

Criminal offence cannot be justified by views or values of majority in the society, including on social media

Τhe constant jurisprudence of ECHR on the prohibition of discrimination enriched in the abovementioned case with further particularly important elements. Clearly, the Court pointed out that it is possible to restrict freedom of speech if speech is offensive. Moreover, the inciting hatred did not necessary entail a call for a criminal act. Even aim of ridicule or slander could be sufficient. The Court rejected also the requirement of systematic aspect of attacks, as even one single comment can seriously incite; by rejecting Government’s argument, mentioned that comments on Facebook are not less dangerous than those on the Internet news portals.

It is important to mention also that the judgement disapproves the vague concept of family values, on which Government’s statements were based. According to the Lithuanian Law on the Protection of Minors against the Detrimental Effect of Public Information, public information which encouraging marriage and creation of a family other than between a man and a woman are banned. However, in the latter ruling of the Constitutional Court was underlined that under the Lithuanian Constitution “the concept of family [was] neutral in terms of gender” but also that “the Constitution is an anti-majoritarian act” and that the views of the majority may not override those of the minority. Thus, was clearly stressed once again by the Court that criminal offence cannot be justified by views or values of a majority in a society and the law should be interpreted under the light of current conditions and take account any recent developments of the society. Consequently, the concept of family values in the presented from the state way was strongly deplored.

To conclude, hate speech comments as reaction to a same-sex kiss photograph between two partners are discriminatory and infringe fundamental rights and freedoms. The State must take adequate and effective measures in order to eradicate any kind of discrimination based on sexual orientation.