Application Number 1813/07
European Court of Human Rights
The applicants gave out leaflets at a secondary school with homophobic statements, including linking HIV and AIDS and pedophilia with homosexuals. They were fined in Sweden. The ECtHR found no violation of Article 10 since their speech amounted to an attack against homosexuals, regardless of the lack of a call for violence.
Date: 9th May 2012
Description of applicant(s): Persons giving out leaflets of an organisation entitled ‘National Youth’
Brief description of facts: The applicants, together with three other persons, went to a secondary school and distributed approximately one hundred leaflets by leaving them in or on the pupils’ lockers. The episode ended when the school’s principal intervened and made them leave the premises. The originator of the leaflets was an organisation called National Youth and the leaflets contained, inter alia, the following statements:
In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances to embracing this deviant sexual proclivity. Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society and will willingly try to put it forward as something normal and good.
— Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold.
— Tell them that homosexual lobby organisations are also trying to play down (avdramatisera) paedophilia, and ask if this sexual deviation should be legalised.”
For distributing the leaflets, the applicants were charged with agitation against a national or ethnic group.
(Alleged) target(s) of speech: Homosexual persons
The Court’s assessment of the impugned speech: The Court found that there was not a violation of Article 10 since the speech in question was an attack on a group of persons. It noted that inciting to hatred does not necessarily entail a call for violence. It further noted that discrimination on the grounds of sexual orientation is as serious as discrimination based on race, origin or colour. The impressionable age of the recipients of leaflets was also relevant.
Important paragraph(s) from the judgment:
Para. 54: The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools. The Court agrees with the Supreme Court that even if this is an acceptable purpose, regard must be paid to the wording of the leaflets. The Court observes that, according to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society.” The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to play down paedophilia. In the Court’s opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations.
Para. 55: Moreover, the Court reiterates that inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner. In this regard, the Court stresses that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour.”
Para.56: The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them. Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.
ECHR Article: Article 10
Decision: No violation
Use of ‘hate speech’ by the Court in its assessment? No