Application Number 29297/18
European Court of Human Rights
A municipal council in Iceland approved a proposal to strengthen education and counselling in schools concerning those who identify themselves as lesbian, gay, bisexual or transgender. The decision was reported in the news and led to substantial public discussion, inter alia, on the radio station Ú.S. The applicant wrote comments below an online news article referring to, for example, ‘sexual deviation’ and ‘disgusting’ in reference to the proposal. He was fined approximately 800 Euro. The ECtHR found no violation of Article10 as it considered his comments to amount to hate speech. This is the first time the Court directly posed a question on hate speech and carried out a relatively lengthy examination of the question: Did the applicant’s comments amount to ‘hate speech’ within the meaning of the Court’s case-law?
Link: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-203199%22]}
Theme(s): Homophobia
Date: 12 May 2020
Description of applicant(s): Citizen
Brief description of facts: In 2015, the municipal council of the town of Hafnarfjörður 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 decision was reported in the news and led to substantial public discussion, inter alia on the radio station Ú.S., where listeners could phone in and express their opinions on the decision of the municipal council. The applicant was one of those who took part in the public discussion. He wrote comments below an online news article written by one of the initiators of the proposal and stated the following:
We listeners of [Ú.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó.]. 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 [Ú.S.]. How disgusting.
He was subsequently charged for his comments which were considered to constitute public threats, mockery, defamation and denigration of a group of persons on the basis of their sexual orientation and gender identity, in violation of Article 233 (a) of the General Penal Code.
(Alleged) target(s) of speech: LGBT persons
The Court’s assessment of the impugned speech: The Court (for the first time) posed the direct question of whether the speech amounted to hate speech and provided a lengthy answer to it, as well as an overview of what hate speech means in ECtHR case-law. In finding that the speech amounted to hate speech, regardless of the lack of a call for violence, it found no violation of Article 10.
Important paragraph(s) from the judgment:
Did the applicant’s comments amount to ‘hate speech’ within the meaning of the Court’s case-law?
Meaning of ‘hate speech’
Para. 33: ‘Hate speech’, as this concept has been construed in the Court’s case-law, falls into two categories.
Para. 34: The first category of the Court’s case-law on ‘hate speech’ is comprised of the gravest forms of ‘hate speech’, which the Court has considered to fall under Article 17 and thus excluded entirely from the protection of Article 10.
Para. 35: The second category is comprised of ‘less grave’ forms of ‘hate speech’ which the Court has not considered to fall entirely outside the protection of Article 10, but which it has considered permissible for the Contracting States to restrict.
Para 36: Into this second category, the Court has not only put speech which explicitly calls for violence or other criminal acts, but has held that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for allowing the authorities to favour combating prejudicial speech within the context of permitted restrictions on freedom of expression. In cases concerning speech which does not call for violence or other criminal acts, but which the Court has nevertheless considered to constitute ‘hate speech’, that conclusion has been based on an assessment of the content of the expression and the manner of its delivery.
Para.37: Thus, for example, in Féret, the Court found no violation of Article 10 of the Convention in respect of the conviction of the applicant, chairman of the political party “Front National”, for publicly inciting discrimination or hatred. The Court considered it significant that the applicant’s racist statements had been made by him in his capacity as a politician during a political campaign, where they were bound to be received by a wide audience and have more impact than if they had been made by a member of the general public (Féret v. Belgium, cited above, § 75). Similarly, in Vejdeland and Others, the Court found no violation of Article 10 in respect of the applicants’ conviction for distributing leaflets considered by the courts to be offensive to homosexual persons. It emphasized that the leaflets had been distributed in schools, left in the lockers of young people at an impressionable and sensitive age (Vejdeland and Others v. Sweden, cited above, § 56).
Para.38: In the present case, the Court sees no reason to disagree with the Supreme Court’s assessment that the applicant’s comments were “serious, severely hurtful and prejudicial”. As reasoned by the Supreme Court, the use of the terms kynvilla (sexual deviation) and kynvillingar (sexual deviants) to describe homosexual persons, especially when coupled with the clear expression of disgust, render the applicant’s comments ones which promote intolerance and detestation of homosexual persons.
Para. 39: The Court has already found (see paragraph 26 above) that the comments in question did not constitute a manifestation of the gravest form of ‘hate speech’ thus falling outside the scope of protection of Article 10 of the Convention by virtue of Article 17. However, the Court considers it clear that the comments in issue, viewed on their face and in substance, fell under the second category of ‘hate speech’ falling to be examined under Article 10 of the Convention. The manner of delivery of the comments does not alter this conclusion, although it is true that the comments, which were made publicly, were expressed by the applicant as a member of the general public not expressing himself from a prominent platform likely to reach a wide audience. Moreover, viewing the severity of the comments, as correctly assessed by the Supreme Court, it does not detract from the Court’s finding above that the comments were not directed, in particular, at vulnerable groups or persons.
ECHR Article: Article 10
Decision: Manifestly ill-founded
Use of ‘hate speech’ by the Court in its assessment?
Yes, see above. This is the first time the Court directly posed a question on hate speech and carried out a relatively lengthy examination of the question: Did the applicant’s comments amount to ‘hate speech’ within the meaning of the Court’s case-law?