Hate Speech, Positive Obligations and Free Speech: The ECtHR’s Expanding Framework in Minasyan and Others v. Armenia (2025)

Dr. Natalie Alkiviadou

On the 7th January 2025, the European Court of Human Rights (ECtHR/Court) delivered the judgment of Minasyan and Others v. Armenia (2025). It addressed critical issues of hate speech, discrimination and the state’s positive obligations under Article 8 (the right to respect for private and family life) in conjunction with Article 14 (the prohibition of discrimination) of the European Convention on Human Rights (ECHR). This case originated from a series of online articles published by the newspaper Iravunk, which targeted the applicants. The attacks followed their criticism of Armenian Eurovision jury members, who had made homophobic remarks regarding the 2014 Eurovision Song Contest. The controversy stemmed from the victory of Conchita Wurst; a performer described in the articles as a ‘gay cross-dressing performer.’¹

Facts

The case involved 14 applicants, including human rights activists, members of NGOs, journalists, and researchers working in the fields of LGBT² and women’s rights. In May 2014, the newspaper published an article titled  ‘They Serve the Interests of the International Homosexual Lobby: the Blacklist of Enemies of the Nation and the State.’ The article accused the applicants of promoting homosexuality, labelled them as ‘internal enem[ies] of the Nation and the State,’ and explicitly incited discrimination against them. It included hyperlinks to their Facebook profiles and urged the public to take actions, such as avoiding contact with them, refusing them employment and preventing them from holding educational positions. The article referred to LGBT activists as ‘gay-campaign-supporting zombies’ and advocated for ‘zero tolerance’ toward them. In response, the majority of the applicants requested a retraction of the article, but the newspaper published another article in June 2014, mocking their request and escalating the attacks on their activism. The applicants subsequently filed a civil lawsuit, arguing that several of the statements made in the May 2014 article damaged their honour and dignity and contained statements inciting hatred and discrimination. During the litigation, Iravunk’s editor-in-chief organized a Facebook event, calling on supporters of ‘traditional values’ to rally behind the newspaper. On the day of the hearing, a group of protesters gathered outside the court, displaying anti-LGBT signs and framing the case as a defence of national and moral values. The newspaper continued its campaign, publishing additional articles targeting the applicants. The domestic courts dismissed the applicants’ claims, ruling that the articles fell within the bounds of the freedom of expression. 

The Judgment 

The ECtHR unanimously found a violation of Article 8 alone and in conjunction with Article 14. The ECtHR reiterated that Article 8 includes positive obligations on the State to ensure respect for private life between individuals. It noted that the concept of private life under Article 8 is broad, covering a person’s physical and psychological integrity, social identity and dignity, including sexual orientation and sexual life. It underlined that, for Article 8 to apply in certain areas, such as reputation, the alleged violation must reach a certain level of seriousness. The Court found that the newspaper’s May 2014 article was motivated by hostility towards LGBT individuals and that it explicitly incited the public to engage in harmful discriminatory acts against the applicants due to their activism. It noted that the publication of their names and social media profiles, alongside calls to ostracise them from employment and education, constituted a serious infringement of their rights under Article 8. The Court concluded that these attacks had a severe impact on the applicants’ dignity, psychological well-being and reputation. The applicants further claimed a violation of Article 14 in conjunction with Article 8, arguing that the hostility they faced stemmed from discrimination based on their perceived sexual orientation and association with the LGBT community. The ECtHR accepted this claim, finding that the articles targeted the applicants in a manner that reinforced negative stereotypes and incited discrimination against them. In considering the balance between Articles 8 and 10 (the right to freedom of expression), it reiterated that there is no ‘hierarchical relationship’ between these rights but emphasised that hate speech and incitement to discrimination do not enjoy protection under Article 10. 

Commentary 

Positive Obligations

A study examining all hate speech cases brought before the former European Commission on Human Rights (EComHR/Commission) and the ECtHR between 1979 and 2020 found that 62% of cases were initiated by individuals accused of hate speech while 38% were brought by those targeted by such speech. Interestingly, the incorporation of positive obligations is sometimes seen in Article 10 cases. For example, in Atamanchuk v Russia (2020),in which the applicant was convicted of hate speech the Court noted that:

‘the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention, to regulate the exercise of freedom of expression so as to ensure adequate protection by law in such circumstances and/or where fundamental rights of others have been seriously impaired.’ (para.67)

In several cases involving the denial of the Holocaust including, but not limited to, Williamson v Germany (2019), the Court has held that:

‘States which have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis…’ (para.27)

Cases brought by the targets of hate speech under the combined framework of Articles 8 and 14 have consistently invoked the State’s positive obligations. In Aksu v Turkey (2012),the ECtHR recognized that negative Roma stereotypes could fall under Article 8, though it found no violation due to the academic nature of the material. This framework evolved in Beizaras and Levickas v. Lithuania (2020), where homophobic hate speech targeted two individuals. Here, the state’s failure to act led to violations of, amongst others, Articles 8-14. By 2021, in Behar and Gutman v. Bulgaria and Budinova and Chaprazov v Bulgaria, the Court extended protection to communities without specific victims, finding violations based on the broader impact of stereotyping. This progression underscores the ECtHR’s growing recognition of states’ obligations to counteract harmful expression proactively. 

This jurisprudence demonstrates the ECtHR’s evolving stance on states’ positive obligations regarding speech regulation. While the intent to protect individuals from hate speech and discrimination is commendable, this expansion raises concerns about the scope of state responsibility and potential limitations on freedom of expression. Strengthening governmental authority over hate speech regulation risks enabling authorities to suppress dissent under the pretext of protection. Additionally, it may lead states to over-regulate speech to avoid future legal challenges, ultimately affecting the rights enshrined in Article 10​.

Hate Speech by Association or Perception 

The Articles 8-14 cases, discussed above, involved either members of the communities which the speech targeted (the Turkish and Bulgarian cases) or the actual persons targeted by the speech (the Lithuanian case). In the Armenian case, the applicants were people working in the ambit of LGBT and women’s rights either as journalists, researchers or human rights defenders. 

If Minasyan and Others had been framed within the ambit of defamation, without the element of hate speech, on the basis that the applicants’ reputations had been damaged, the analysis in this blog post would be quite different. However, because the Court found the speech to be driven by hostility toward LGBT individuals which encouraged the public to engage in harmful discriminatory actions against the applicants due to their activism in promoting LGBT rights, the legal assessment becomes more complex since the applicants were targets of such speech due to their association with the LGBT community and possibly due to the assumption that they shared characteristics with the community. This is an interesting element and clear broadening of the Court’s understanding of who can be affected by hate speech.

It is important to break down the speech in question. Specifically, the large majority of the speech in question was directed against those supporting the LGBT community, described in an offensive manner as, inter alia, the ‘gay lobby,’ ‘homosexual rights lobbyists’ and the ‘International Homosexual Lobby’, ‘Conchita’s Witness’ and ‘gay-campaign-supporting zombie.’ Calls for discrimination and exclusion were directed against these ‘lobbyists.’ They were described as, amongst others, ‘having a stinking biography.’  The recurrent theme in the articles and on the Facebook event, was that these lobbies harm traditional and family values and that the LGBT community was perverse and nauseating. The speech that was uttered directly against LGBT persons were limited, namely calling Conchita Wurst ‘human waste’ and referring to the applicants as ‘boys and girls’ adding that it was questionable whether they could be called that. 

The Court has not previously ruled on hate speech cases where individuals were targeted solely due to their perceived characteristics or association with a protected group. The closest parallel we can make to understand the Court’s approach to the different targets of hate speech is an Article 10-turned Article 17 case, namely that of Lenis v Greece (2023), in which the applicant’s speech was directed at both politicians supporting the LGBT community and  homosexual persons themselves. In this sphere, the ECtHR held that:

‘Even the expressions of incitement directed against politicians who wished to vote for the legislation introducing civil unions between same-sex couples, such as “blacken them out”, were in fact targeting homosexual people. As the domestic courts rightly pointed out, such phrases could not be seen separately but had to be read as directly connected with the applicant’s intention to diminish homosexual people.’ (para.44) 

The lacking definitional framework of the Court’s jurisprudence, when it comes to hate speech, does not help in determining who can be the target of hate speech. In its judgment, the Court referred to Recommendation No. R (97) 20 of the Committee of Ministers of the Council of Europe to Member States on Hate Speech. The Court did not refer to the newer Recommendation, namely the Committee of Ministers Recommendation (2022) 16 on Combating Hate Speech. This Recommendation, as opposed to the earlier one, explicitly provides that both ‘real’ or ‘attributed’ characteristics fall within the ambit of its hate speech definition. This set the scene for making the link between the applicants’ claim and the subsequent finding clearer, at least when it comes to the element of perceived characteristics. 

As the ECtHR expands its framework on positive obligations, the resulting burdens on states necessitate a rigorous and precise approach to ensure a coherent legal foundation that legitimises its rulings. Without such scrutiny, the risk of inconsistent reasoning or judicial overreach could undermine both the protection of vulnerable groups and the fundamental right to freedom of expression. 

Use of Article 17 as an Interpretative Aid?

The ECtHR questioned whether the speech in question could be protected under Article 10, given Article 17’s limitations. However, it did not rule on this definitively. Instead, it held that domestic courts failed properly to balance the competing rights under Articles 8 and 10, considering Article 17. This is an interesting point, where the balancing exercise between Articles 8 and 10 and, therefore, the understanding of Article 10 is impacted by the prohibition of abuse of rights clause which should be reserved for the most serious cases. Consequently, what we are seeing is the use of Article 17 as an ‘interpretative aid’ in the assessment of the limitation grounds of Article 10(2). Specifically, the ECtHR held, without any substantial extrapolation, that it ‘doubts whether such speech could enjoy protection under Article 10 of the Convention in the light of the requirements of Article 17.’ (para.66) This almost absolutist approach to the illegality of the speech in question heightens the burden of any positive obligations that may ensue.

Could we realistically argue that the threshold of alleged hate in the speech under consideration amounted to Article 17 requirements? In fact, when taking the hierarchisation of the severity of hate speech, as set out in Lilliendahl v Iceland (2020), it is unclear how the speech in this case was assessed using Article 17 as a guide. In fact, the interpretative assistance of Article 17 is not only irrelevant but, also, potentially, dangerous. The expansive application of Article 17, even indirectly, could weaken democratic principles and endanger the fundamental freedom of expression and unfairly tip the balancing scale between Article 10 and Article 8 in the direction of the latter. 

Real World Harm

The Court asserted, without providing qualitative substantiation, that the author’s statements were intended to incite intolerance and hostility against the applicants, with the deliberate aim of intimidating them and causing real harm. This raises a crucial question: What constitutes real world harm and does hate speech, particularly at the threshold found in this case, necessarily lead to such harm? While this brief opinion piece cannot fully explore the theoretical and empirical dimensions of this pressing issue, these are questions the ECtHR must engage with before invoking Article 17 to interpret Article 10 or automatically prioritising Articles 8 and 14 at the expense of freedom of expression.

Conclusion 

The judgment in Minasyan and Others v. Armenia represents a significant development in the ECtHR’s evolving jurisprudence on hate speech, discrimination, and positive obligations under the ECHR. While hate speech is undeniably a negative phenomenon for both victims and society, it does not necessarily follow that restrictions on free speech are always an effective remedy. By affirming that individuals can be targeted not only for their inherent characteristics but also due to their association with a protected group or an assumption that they share characteristics with a group, the Court has broadened state responsibility forcountering discrimination.

However, this expansion raises important concerns about the limits of state intervention and its potential impact on freedom of expression. Although this was not an Article 10 case, the Court had to conduct a balancing exercise between Articles 8 and 10, implicitly shaping its approach to free speech regulation. The use of Article 17 as an interpretative aid, without substantive justification, suggests a broadening of hate speech restrictions, potentially tilting the balance too far against freedom of expression. Additionally, the judgment does not engage with empirical evidence on the real-world harm caused by the speech in question, leaving its reasoning vulnerable to critique for lacking a rigorous necessity test.

As such, states are now expected to protect individuals even when they are not the direct targets of hate speech and even if they do not belong to the targeted group. While the Court’s intentions are valid, namely, to combat hate speech, its approach raises fundamental questions. Will such broad obligations make legal protections against hate speech more effective, or will they encourage overregulation that chills public discourse? Does restricting such speech meaningfully combat underlying prejudice? Will such jurisprudential developments make homophobes stop being homophobes? In this light, the critique of this judgment does not emanate solely on the fundamental nature of ‘the most human right’, that being free speech, but also raises questions regarding the day after the judgment. Will such accentuated and widened state obligations reduce hate speech or make spaces safer for targets? I am, to say the least, sceptical of the second option materialising.

1. While the ECtHR uses this term, the author finds the term gay drag queen more appropriate, see for basic information: <https://www.britannica.com/topic/drag-queen> ↩︎
2. While the acronym ‘LGBT’ was used in the judgment and for clarity in terms of what was discussed in the case this acronym is referred to in the piece, the author adopts the recommendation of, inter alia, GLAAD which notes that LGBTQ or LGBTQ+ are more inclusive as acronyms <https://glaad.org/reference/terms/> 
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