May 30, 2025
by Dr. Betül Durmuş
Over the summer, Bulgaria and Georgia adopted their own ‘anti-gay propaganda laws’ prohibiting dissemination of information concerning sexual orientation or gender identity, under the guise of protecting children. And, on 19 November 2024, the Court of Justice of the European Union held a hearing on the infringement proceedings against Hungary’s anti-LGBTQI law.
It is in this heightened atmosphere that the Third Section of the European Court of Human Rights (‘Court’ or ‘ECtHR’) issued a new judgment concerning the Russian ‘anti-gay propaganda law’: Klimova and Others v. Russia (4 February 2025). The applicants of this case administered websites or social networking webpages providing information on LGBTQI-related issues or offering psychological and other forms of support to LGBTQI individuals. The Court found that the applicants’ convictions for the administrative offence of ‘promotion of non-traditional sexual relationships among minors’ and blocking of some of those websites or webpages breached Articles 8 and 10 of the European Convention on Human Rights. It dismissed the remaining claims of the applicants including Article 14 (para 162).
This post focuses on the Court’s findings on Articles 10 and 14 and argues that Klimova and Others is a mixed picture. While it is promising by adopting a critical stance on age restrictions and showing that the Russian law is unforeseeable to hold the individuals liable for third-party generated online content, it carries ambiguities due to the lack of a separate examination on Article 14 and the lack of an engagement with the rights of LGBTQI children.
The decision joined six applications lodged against Russia which involved the following facts:
All applicants, except the second applicant (Mr Yedemskiy), were convicted of the administrative offence of ‘promotion of non-traditional sexual relationships among minors’ pursuant to Article 6.21 (2) of the Code of Administrative Offences. In addition, the webpages and websites in the first, second, and sixth applications were blocked for the same reason: promoting homosexuality among minors.
The Court decided that both the applicants’ convictions of the administrative offence in relation to their online publications and the blocking of their websites and webpages are an interference with their freedom of expression (paras 136-137). In the cases of Ms Klimova and V.C., the Court also noted the fact that applicants were held responsible for the comments posted by other users and found it an interference with Article 10 (para 138). In examining the justification for this interference, the Court distinguished the content published by the applicants themselves, and the content generated by other users.
The Court started its analysis by recalling the main principles it had previously adopted in Macatė v. Lithuania. Accordingly,
‘… it is not justifiable to impose restrictions on children’s access to information about same-sex relationships, where such restrictions are based solely on considerations of sexual orientation – that is to say, where there is no basis in any other respect to consider such information to be inappropriate or harmful to children’s growth and development.’ (Emphasis added, para 142).
Such restrictions, according to the Court, show that the authorities have a preference for some type of relationships and families over others, which in turn runs counter to ‘the notions of equality, pluralism and tolerance inherent in a democratic society’ (para 142).
Turning to the specific facts of the case, the Court noted that the applicants were seeking to ‘encourage tolerance and acceptance of LGBTI people, to give support to troubled LGBTI teenagers, to provide information on, and a forum for discussion of, LGBTI-related topics or to provide a space where LGBTI people could meet to find friends or romantic partners.’ (para 146) When domestic courts decided to hold the applicants liable of an administrative offence or block the websites or VK groups, they either failed to specify which publication they considered problematic or even when provided some screenshots, they failed to give details about their content and why they were harmful to children (para 148). It was evident, for the Court, that the domestic decisions were ‘based solely on considerations of sexual orientation’ and they did not demonstrate that any of the applicants advocated for ‘any sexual practices, reckless behaviour or any unhealthy personal choices’ (para 149).
The Court dismissed the argument that one’s sexual orientation or identity can be changed through exposure to positive expressions related to same-sex relationships, citing Bayev and Others v. Russia (para 150). It also held that prohibiting access to information depicting the same-sex relationships as socially equivalent to heterosexual relationships embodies ‘a predisposed bias on the part of a heterosexual majority against a homosexual minority’ (para 150). Referring to Macatė, the Court found no basis that the publications were ‘insulting, degrading or belittling persons on account of their sexual orientation, or promoting one type of family at the expense of another’ (para 151).
Lastly, the Court examined the 18+ age restrictions which were included in some of the applicants’ websites and VK groups. According to the Court, a warning addressed to the persons under eighteen years old could be acceptable to restrict the dissemination of pornographic material; however, ‘it is not justified to impose similar restrictions on children’s access to information about same-sex relationships, where such restrictions are based solely on considerations of sexual orientation’ (para 152). For these reasons, the Court found a violation of Article 10 (para 153).
Referring to its previous decision in Sanchez v. France, the Court reiterated that the liability rules imposed on internet intermediaries should be ‘transparent, clear and predictable’ (para 157). According to the Court, in the present case, the domestic courts did not mention any domestic provisions imposing an obligation for the administrators of social networking sites to delete content posted by third parties and show in which conditions such an obligation arises (para 158).
As the Court held, the domestic courts only relied on Article 6.21 of the Code of Administrative Offences, but did not refer to any authoritative interpretation of it imposing such an obligation with respect to the content generated by third parties. For this reason, the Court found that this provision did not enable the applicants to foresee the consequences of a failure to delete content created third parties (para 159). Thus, in the Court’s view, the applicants’ convictions for content posted by other users derived from ‘an expansive and unforeseeable interpretation and application of Article 6.21’ were not ‘in accordance with the law’ (para 160).
The applicants also complained that they were discriminated on the basis of their sexual orientation. Together with some of the applicants’ claims under Articles 6 and 13, the Court decided that there was ‘no need to give a separate ruling on the admissibility and the merits’ of the Article 14 claim (para 162).
Klimova and Others v. Russia repeated many findings of Bayev and Others and Macatė where the Court repudiated the restrictions on information and ideas related to same-sex relationships. However, it also provided two novel contributions. First, the Court had a critical stance on the applicability of age restrictions on expressions related to sexual orientation and gender identity. Here, it is worth noting that some applicants did not really challenge the existence of age restrictions and rather argued that it was technically impossible for them to check the users’ real identities and allow only adults (see paras 47 and 64). Despite this, the Court rejected the argument that the information on LGBTQI-related issues could be subject to the same restrictions applicable to pornographic material. Previously, the issue of 18+ age warnings was shortly addressed in KAOS GL v. Turkey concerning a sexually explicit illustration in a magazine targeting the LGBTQI community and Pryanishnikov v. Russia which concerned the refusal of a licence to reproduce erotic films. As also noted by the Court in the present case (para 152), the 18+ age restriction in these two cases was proposed by the Court as a less restrictive means compared to an outright ban which might also affect adults (KAOS GL v. Turkey, para 61; Pryanishnikov v. Russia, para 61).
Second, Klimova and Others carried out a legality analysis of Article 6.21 of the Russian Code of Administrative Offences for the first time concerning liability of the applicants from third-party generated content. Before, in Bayev and Others, the Court noted the legislation’s broad scope ‘expressed in terms not susceptible to foreseeable application’, but did not carry out a separate legality analysis (para 76).
While Klimova and Others can be welcomed for these two contributions, it also seems unable to solve the two ambiguities created by previous decisions.
As mentioned above, the Court summarily dismissed the claim that the applicants were discriminated on the basis of their sexual orientation (para 162). This is despite the fact that the Court found that the restrictions were ‘based solely on considerations of sexual orientation’ (para 149). Although this phrase suggests that the restrictions carried a discriminatory motive, the Court at the end was content with the findings concerning other provisions.
This was quite the opposite of the conclusion reached in Bayev and Others. There, the Court held that it ‘has already found’ that the Russian legislation embodied ‘a predisposed bias on the part of the heterosexual majority against the homosexual minority and that the Government have not offered convincing and weighty reasons justifying the difference in treatment’ (para 91). Then, it decided that these findings also gave rise to a separate violation of Article 14 in conjunction with Article 10 (para 92).
The conclusion in Klimova and Others regarding Article 14 is rather similar to Macatė. In the Court’s view, the restrictions in that case were directed ‘at the LGBTQI content of the expression rather than the author of the expression herself’, and the Court found that ‘that central issue has been sufficiently taken into account’ in the assessment on Article 10 (para 221). As a result of this, the Court added that it ‘leaves the question of the admissibility and/or merits of such a complaint under Article 14 to be examined in a suitable future case’ (para 221). This aspect of the judgment was rightfully criticised in the Joint Partly Dissenting Opinion of Judges Yudkivska, Lubarda, Guerra Martins and Zünd (joined by Judge Kūris). They advocated for finding violations of the right to non-discrimination when the restrictions were directed at pro-LGBTQI content, rather than the applicant personally (para 11).
Klimova and Others did not resolve this important debate, maybe because the Court did not consider it ‘a suitable future case’ for that purpose. The Court’s language (in para 162) did not explicitly adopt that content/personality distinction as in Macatė. However, the fact that the Court assumed the findings under Article 10 would be sufficient might suggest that the Court saw the issue as a mere content-based restriction not raising a separate issue under Article 14.
The facts of the present case differ significantly from Bayev and Others and Macatė based on a more active involvement of LGBTQI children. The issue is not merely ‘an incidental or potential sighting by a minor’ in a public gathering (Bayev and Others, para 75) or children being readers of a book written for their age range. In some of the VK groups, children posted contents to share their own experience concerning sexual orientation or gender identity and posted their profiles to seek friendships or relationships (para 147). This could have raised separate questions on the rights of LGBTQI children; however the Court did not examine these aspects.
The only meaningful engagement with the rights of LGBTQI children was in the third-party intervention submitted by the Sphere Foundation. This intervention touched upon their rights, particularly the repercussions of the Russian law on LGBTQI teenagers’ access to information, sex education and reproductive rights and increased risks of bullying against them (para 134). In that vein, there is a parallel between the present case and Macatė. There, the Court also received similar interventions on the risk of violence and stigmatisation experienced by LGBTQI youth and children coming from same-sex families (paras 169 and 172); however, it noted them only in passing (Macatė, para 211) without an extensive discussion.
This lack of engagement with children’s rights that is inherited also in Klimova and Others might not be surprising to the readers. The ECtHR has long been criticised for its failure to adopt a child-rights perspective, be it in the field of education (see Peleg) or in the family life (see Hodson). Though not surprising, it is still disappointing to see the lack of a discussion on the rights of children, especially in such a context where they are used as a pretext to suppress LGBTQI rights.
Klimova and Others consolidated earlier findings of the Court in Bayev and Others and Macatė. It has also showcased novelties in adopting a critical stance on the 18+ age restriction on LGBTQI-related content and the first legality analysis on the Russian ‘anti-gay propaganda law.’ However, this decision failed to engage with the right to non-discrimination and the right of LGBTQI children. As the outright prohibitions on LGBTQI expressions continue to proliferate across different Council of Europe states, it is very likely that the Court will have future cases where it can revisit these shortcomings.
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