If you can’t stand the heat, don’t turn up the oven: Strasbourg Court expands tolerance for criticism of xenophobia to criticism of homophobia

This post was written by Sander Steendam, Ph.D. Researcher at the Human Rights Centre of Ghent University. Sander works on the IAP project ‘The Global Challenge of Human Rights Integration: Towards a Users’ Perspective’. In his research, Sander focuses on LGBT rights.

On the 17^th of April 2014, the European Court of Human Rights issued a judgement in the case of Mladina v. Slovenia. In this case, the Court further develops its standing case law on “public statements susceptible to criticism”. When assessing defamation cases, the Court has in the past found that authors of such statements should show greater resilience when offensive statements are in turn addressed to them.

Facts

The Court was presented with a magazine article critical of a then member of the Slovenian parliament, Mr S.P. This particular member felt passionately that same-sex couples should not be able to get their partnerships registered. During a parliamentary debate on a bill to that effect, he expressed his concerns as follows. “None of us would want to have a son or a daughter who would opt for this kind of marriage. If our homeless people could follow the breadcrumb trail to Finland or even further, let these ladies and gentlemen also go there to marry. But the biggest victims of this law would be the children of such a marriage: Just imagine a child whose father comes to pick him up from school and greets him with ‘Heeeeey, I’ve come to take you hooooome! Have you got your coat on yet?’”

Mladina, a national weekly news magazine in Slovenia, covered the debate and described Mr S.P.’s intervention as “a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot, whereas in reality [what it illustrated was] just the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school”.

Mr S.P. took offense. A civil suit for damages was filed against Mladina D.D. Ljubljana, the publisher of the magazine, and Mr S.P. was awarded almost 3000€ in damages by the Slovenian domestic courts.

Judgement

Mladina subsequently applied to the European Court of Human Rights, alleging a violation of its right to freedom of expression under article 10 of the Convention. The Court agreed that there had been an interference with Mladina’s article 10 rights and that this interference had been prescribed by law for a legitimate aim, the protection of the reputation or rights of others. When assessing whether the interference was proportionate however, the Court recognised that the description of Mr S.P.’s actions had been “extreme” but nonetheless found a violation based on the following reasons.

The Court emphasised that the statements by Mladina had been released in the context of a political debate by an actor of the free press, which plays a crucial role in a democratic society. Furthermore, Mr S.P. was a politician and must for that reason display a greater degree of tolerance than a private individual. This is especially true because Mr S.P. had himself opened the door for this particular style of debate through his comments in parliament. The statements in the article were also not factual statements but were value judgements accompanied by a factual basis, i.e. a transcript of the parliamentary debate. The Court noted in that regard that journalistic freedom also covers a degree of exaggeration.

Comment

It is the Court’s well established case law that politicians must demonstrate a greater tolerance vis-à-vis statements directed against them (Lingens v. Austria; Oberschlick v. Austria; Oberschlick v. Austria (No. 2); Lopes Gomes da Silva v. Portugal), a rule that could colloquially be described as: “if you can’t stand the heat, get out of the kitchen”. What the Court is saying in this case is that Mr S.P. had done much more than simply enter the kitchen. He had entered the kitchen and turned up the oven. Indeed the Court has said several times before that politicians who themselves make statements that are susceptible to criticism open the door for equally strongly worded responses (see case law cited above). It should be noted that which statements are considered “susceptible to criticism” inevitably entails a value judgement by the Court itself about those statements. The Court has for example already granted increased protection under article 10 to journalists targeting xenophobia (Oberschlick v. Austria) but it is the first time it does so regarding statements attacking homophobia. It is noteworthy that the Court has inversely accepted restrictions on forms of expression with homophobic content (Vejdeland v. Sweden).

As also Paul Johnson writes, the judgement is not without importance for journalists and possibly even activists aiming to debunk negative stereotypes reinforced by politicians. This judgement makes clear that journalists standing up to such homophobic statements enjoy a particularly high level of protection under article 10. This is a logical continuation of the Court’s case law on statements susceptible to criticism mentioned above. It is also in line with various other documents from the Council of Europe such as the 2010 Recommendation from the Committee of Ministers, which have stressed the crucial role of the media in combating the stereotyping of LGBT persons.