By Giulio Fedele (University of Rome “La Sapienza”, email@example.com)
Hate-speech against sexual minorities has become a pressing issue for the ECHR. Online media and social platforms boosted the possibilities one has to express both personal opinions and hateful comments, thus making it harder for the Strasbourg Court to draw the line of the protection afforded by the ECHR. As it is well known, freedom of expression (Article 10 ECHR) is one of the few rights of the Convention that comes with “duties and responsibilities”, especially when such expressions conflict with “the rights of others” (Article 10 § 2). Nevertheless, the Court has constantly emphasized that the Convention protects various ideas, regardless of their power to “offend, shock or disturb”, thus requiring a certain threshold of graveness in order to lawfully restrict this right. The case commented in this post, the decision in Carl Jóhann Lilliendahl v. Iceland of May 12th 2020, communicated on June 11th 2020, provides an example of the rigid viewpoint recently adopted by the Court towards expressions that amount to homophobic hate speech, seen as falling outside the scope of Article 10. The Court struck out the application of Mr. Lilliendahl, a 74-year-old convicted for hateful online comments about homosexuality, for being manifestly ill-founded. The judgement is closely related to the case of Beizaras and Levickas v. Lithuania (judgement – blog post), previously issued in January 2020, where the Court required the responding State to investigate online homophobic comments promoting violence. In this regard, the decision of the Court in Lilliendahl is of particular interest since it contributes to the development of the Court’s radical disapproval towards homophobic hate speech. It also highlights the coherent application of different principles of the Convention aiming at the protection of vulnerable groups from expression of hatred and intolerance.
In April 2015, the municipal council of the town of Hafnarfjörður, Iceland, approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning LGBTI+ inclusion. The project was coordinated in assistance with the national queer association of Iceland, Samtökin ’78. The decision produced substantial public discussion, being reported in the news and local media, such as the radio station Ú.S., where listeners could express their opinions while phoning and intervening in the show. One of the initiators of the proposal, Mr. Ó.S.Ó., wrote an online article blaming the show hosts for allowing people to voice their “clear prejudice and hate speech” without countercriticism. Furthermore, he wished the opportunity to come to the show in order to participate in the debate. Mr. Lilliendahl, the applicant in this case, subsequently wrote these comments in response to the article:
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.
These comments were reported by Samtökin ‘78 to the police, claiming they violated Article 233(a) of the General Penal Code No.19/1940, which penalizes publicly mocking, defaming, denigrating or threatening of a person or group of persons for certain characteristics, including their sexual orientation or gender identity, with fines or imprisonment for up to two years. In April 2017, Mr. Lilliendhal was first acquitted by the District Court of Reykjavík, which considered that the comments did not reach the threshold required to fall within the scope of Article 233(a). The judgement was subsequently overturned by the Supreme Court of Iceland in December 2017. The Court conducted a thorough analysis of the circumstances of the case, balancing the freedom of expression of the applicant with the right of sexual minorities to respect for their private life and to enjoy human rights equally to others. It found that the comments of Mr. Lilliendahl were “serious, severely hurtful and prejudicial, none of which was necessary for him to express his opposition to such education”, thus falling under the provision of Article 233 (a). Consequently, it convicted the applicant and sentenced him to a fine of 100,000 Icelandic krónur (approximately 800€ at the time).
Mr. Lilliendahl then resorted to the European Court of Human Rights complaining that his conviction amounted to a violation of his freedom of expression (Article 10 ECHR). He furthermore complained that he did not enjoy freedom of expression equally to persons with different opinions (Article 14 ECHR + Article 10 ECHR)
The Court first examined the possibility to dismiss the applicant’s complaints ratione materiae by reference to Article 17 ECHR, which provides for one’s abuse of rights:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
The Court relied on Perinçek v. Switzerland (judgement – blog post) to determine if the applicant’s comments “sought to stir up hatred or violence and whether, by making them, he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it” (§25). It then concluded that Article 17 applies only exceptionally and in extreme cases, this particular case not being one of them. In fact, in the Court’s opinion, the applicant’s comments were not immediately and clearly aimed at inciting to violence and hatred or destroying the rights and freedoms of others protected by the Convention (§26).
Consequently, the Court went on to address Mr. Lilliendahl’s complaints under Article 10, first assessing whether his comment amounted to “hate-speech” according to its case-law. The Court claimed “hate-speech” comprised two categories: one being its gravest form, which falls under Article 17 ECHR; another, which the Court considers “less grave”, but nevertheless possible for Contracting States to sanction under the requirements set by Article 10 ECHR. Mr. Lilliendahl comments were said to fall under this second category. According to the Court’s case-law, this category includes not only explicit calls for violence or other criminal acts but also insulting, holding up to ridicule or slandering of specific groups of the population subjected to prejudice (§36).
Since the applicant’s conviction undoubtedly constituted an interference with his freedom of expression, the Court went on to assess whether it complied with the requirements set out by Article 10 ECHR, namely whether the restriction was prescribed by law, whether it pursued a legitimate aim and was necessary in a democratic society. As to the first requirement, the Court considered that the prevision in Art. 233 (a) of the General Penal Code was worded in a sufficiently clear manner so as to render its application reasonably foreseeable (§42).
As to the legitimate aim, the Court accepted that the purpose of Article 233 (a) was to protect the right to respect for private life and the right to enjoy human rights equally to others, as well as to safeguard the rights of social groups which have historically been subjected to discrimination (§43).
The core part of the decision lied, as in most of this type of cases, in establishing whether the sanction was necessary in a democratic society. In this regard, the Court extensively considered the circumstances of the case. It agreed with the Supreme Court that the applicant’s comments were “serious, severely hurtful and prejudicial” and his depiction of homosexuality promoted intolerance and detestation (§44). The Court found that the reaction of Mr. Lilliendahl was disproportionate to the tones of the public debate produced by the decision of the municipal council, and that the prejudicial and intolerant nature of the comments was thus not justified (§46). In conclusion, the Court noted that the applicant was only subject to a pecuniary fine, although the crime of which he was convicted carried a penalty of up to two years’ imprisonment. It thus found the sanction of approximately 800 euros to be proportionate.
In view of this, the Court agreed unanimously that the Supreme Court gave relevant and sufficient reasons for the applicant’s conviction and therefore it declared the application inadmissible for being manifestly ill-founded. The Court reached the same conclusion with regards to Article 14 ECHR, applied in conjunction with Article 10 ECHR, on the basis that there was no appearance of a violation of these provisions.
Although it could be maintained that this decision, at the bottom line, merely expresses the foreseeable application of the ECHR’s principles on restricting freedom of expression, I would rather contend that it represents an interesting example of the rigid approach recently adopted by the Court towards homophobic hate-speech.
The most striking aspect of the decision is the Court’s explicit assessment of the nature of Mr. Lilliendahl’s homophobic comments as constituting “hate-speech” (§39), which is a novelty. In fact, this unambiguous recognition seemed to be the missing piece of the puzzle in the controversial case Vejdeland v. Sweden (judgement – blog post), decided 8 years ago, where the Court fell short of clarifying whether anti-homosexual expressions contained in leaflets distributed to pupils were to be included in this category.
It is true on the one hand that in this case the Court rejected the idea that Mr. Lilliendahl’s offences amounted to the gravest form of hate-speech, thus falling under Article 17 (§§24-26). As it has been already noted, this conclusion would have afforded sexual minorities greater protection from prejudice and hatred, and it would have encouraged States to implement effective regulations. Nevertheless, on the other hand, this decision offers multiple clues that the Court was willing to engage more extensively than it had usually done before with the consequences of homophobic speech.
At the outset, it should be noted that the application was struck out as inadmissible, for being manifestly ill-founded, while other similar cases have always been examined on the merits. This outcome must be welcomed positively, meaning that the Court considers homophobic hate-speech to lie beyond the protection currently afforded by the ECHR. While it could also be maintained that the Court confined itself to a more cursory examination of the merits at the admissibility stage because the relevant legal principles had been established by now. However, the Court’s previous approach towards homophobic comments did not appear so crystal clear after all and, as I will try to show, this case shows some peculiarities that distinguish it from previous case law.
As regards to the examination, the Court appeared to have applied a less scrupulous test to reach the threshold for the comments to be falling under the second category of hate-speech. In fact the Court, while previously recalling that, in the absence of calls for violence or criminal acts, it would determine hate-speech on the basis of the content of the expression and the manner of its delivery (§36), in this case it fully and solely relied on the content of the applicant’s comments. This solution appears to differ from previous Court’s case-law which stressed the importance of the way expressions are presented. As the Court recognizes, Mr. Lilliendahl was ‘just’ “a member of the general public” expressing himself via the internet, and not a public figure speaking “from a prominent platform likely to reach a wide audience” (§37), as it was in the Féret v. Belgium case; moreover, Mr. Lilliendahl replied publicly to an online article, thus not imposing his comments upon anyone, as was the case in the Vejdeland case, where the fact that the applicants forced their anti-homosexual opinions on vulnerable young people at school played a decisive role in the judgement. These circumstances did not prevent the Court from agreeing with the Icelandic authorities that the comments were “severely hurtful and prejudicial” and that they promoted “intolerance and detestation of homosexual persons” when coupled with expressions of disgust (§38), thus constituting hate-speech. This is not a futile detail, considered that in other more recent judgements, as it was for instance in the case Savva Terentyev v. Russia (judgement – blog post), the Court applied a much higher threshold for the content of the expressions to be falling under “hate-speech”. In that decision, a blogger’s comment wishing the Russian police burned in “an oven, like at Auschwitz” was not found as evidence of incitement to hatred or violence.
The reason why the Court departed in this case from its usual reasoning underlying both the content of the expressions and the manner in which they are presented probably lies in the engagement of a sexual minority, a group “historically been subjected to discrimination” (§43) by the intolerance of the majority. Such history of prejudice and hatred justifies a stronger counterreaction from States’ authorities. In this sense, the Court positively reaffirmed that “that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour”” and recalled both the recommendation of the Committee of Ministry (CM/Rec(2010)5) and the resolution of the Parliamentary Assembly (Resolution 1728 (2010)) of the Council of Europe to strengthen the protection against homophobic speech (§45).
It is nevertheless interesting to note that the idea that the sexual minority should be protected from the intolerant majority that is at work here in this decision seems to have lost its persuasive power in the specific context. In fact, it is worth saying that Iceland is listed at the top of the OECD reports on LGBT acceptance, while is ranked seventh by ILGA-Europe in their ‘Rainbow Map’ for LGBT equality in Europe. The circumstances are considerably different from the ones of the other recent case of online anti-homosexual hate-speech, Beizaras and Levickas v. Lithuania, decided in January. In that situation, the Court concluded that the applicants were victims of discrimination both resulting from hateful online comments and from the refusal of authorities to start criminal investigations. Lithuania is still way below the European average on LGBT acceptance. In that case, the Court decided to take a stand against the general bigoted attitude of Lithuanian society towards the homosexual community. In this situation the Court could have come to a different conclusion, if it had chosen to conduct the same contextual risk-assessment, evaluating whether Mr. Lilliendahl’s statements could likely incite to hatred in the Icelandic society. In this sense, the applicant’s comments could have been regarded exclusively as an isolated, harmless episode of a 74-year-old bigot completely detached from the social context, thus posing no real danger to the homosexual community.
In the light of these circumstances, in my view this decision clearly shows that the Court considers homophobic hate speech reprehensible regardless of the context and strongly disapproves it. This conclusion thus counterbalances the Court’s first acknowledgement that not all homophobic expressions are contrary to Article 17: even though only the gravest forms of hatred fall under this provision, this does not mean that homophobic speech should in principle enjoy protection under the Convention.
This is further reinforced by a comprehensive analysis of this decision in conjunction with the abovementioned Beizaras and Levickas v. Lithuania. In that case, the Court affirmed, through the lenses of Article 8 together with Article 14, that States should persecute online hate-speech in order to guarantee effectively the respect for one’s private life and the enjoyment of human rights equally to others. In the Lilliendahl case, it coherently analyzed the matter from the other side, stating that hate-speech should not enjoy the protection afforded from Article 10, since States can lawfully prosecute homophobic online comments in order to protect private life and the enjoyment of human rights equally to others.
All things considered, this decision is a welcome development in the Court’s case law on homophobic hate-speech through online platforms. As was the case with Beizaras and Levickas, one should not try to draw an unconditional and general rejection of homophobic speech from the Court’s reasoning in this case. This is clear from the passage in the decision where the Court affirms that is permissible for State Parties to restrict the second type of less grave hate-speech, falling under Article 10 §2 (§35). Nevertheless, these two judgements show that States’ discretion as to the opportunity to restrict homophobic speech has been considerably reduced. They in fact preserve their margin of appreciation only to the extent that the situation does not fall within the scope of Article 17 or Article 14 together with Article 8. In this regard, the positive obligation to ensure respect for one’s private life equally to others may trigger the duty to prosecute the discriminatory expressions, as it was in the Beizaras and Levickas case. As I have tried to argue, reading this decision in conjunction with that judgement and the previous case law on freedom of expression suggests that the Court has recently developed a rigid and coherent approach towards homophobic hate-speech that incites to hatred and intolerance, seen as offending the values of the Conventions in multiple respects.