No Room for Homophobic Hate Speech Under the EHCR: Carl Jóhann Lilliendahl v. Iceland

By Giulio Fedele (University of Rome “La Sapienza”, giulio.fedele@uniroma1.it)

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 (judgementblog 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. Continue reading

A picture of a same-sex kiss on Facebook wreaks havoc: Beizaras and Levickas v. Lithuania

Ingrida Milkaite is a PhD researcher in the research group Law & Technology at Ghent University, Belgium. She is working on the research project ‘A children’s rights perspective on privacy and data protection in the digital age’ (Ghent University, Special Research Fund) and is a member of the Human Rights Centre at the Faculty of Law and Criminology at Ghent University and PIXLES (Privacy, Information Exchange, Law Enforcement and Surveillance).

Two young men publicly posted a photograph of themselves kissing on Facebook. The post ‘went viral’ and attracted around 800 comments, most of which were hateful. Some of the comments featured suggestions to burn, exterminate, hang, beat, castrate, and kill the two men as well as gay people in general. The national authorities, while acknowledging that some comments were ‘unethical’, refused to launch a pre-trial investigation for incitement to hatred and violence against homosexuals. They considered that the couple’s ‘eccentric behaviour’ had been provocative and that launching an investigation in this case would be a ‘waste of time and resources’. The judgement in the case of Beizaras and Levickas v. Lithuania (Application no. 41288/15) was published on 14 January 2020. The ECtHR found a violation of Article 14 ECHR in conjunction with Article 8 ECHR, as well as a violation of Article 13 ECHR. Continue reading

Human Rights Centre submits a third party intervention in “Conchita Wurst case”

The Human Rights Centre of Ghent University[1] has recently submitted a third party intervention in the case of Minasyan and Others v. Armenia, which raises important issues concerning the protection of LGBTIQ+ persons against hate speech. In our third party intervention, we invite the Court to clarify Convention standards regarding the positive obligation for the State to combat hate speech based on sexual orientation, gender identity and gender expression. Before summarizing the main arguments developed in our third party intervention, I will first provide a brief overview of the facts of the case. Continue reading

No overbroad suppression of extremist opinions and ‘hate speech’

By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its recent judgment in Stomakhin v. Russia, the European Court of Human Rights (ECtHR) launched the message to all domestic authorities to adopt a “cautious approach” in determining the scope of “hate speech” crimes and to avoid “excessive interference” with the right to freedom of expression, especially when action is taken against ‘hate speech’ or extremist opinions that are mere criticism of the government, state institutions and their policies and practices. The judgment of 9 May 2018, in which the ECtHR unanimously found a violation of Article 10 ECHR, sets an important standard: as judge Keller observed in her concurring opinion, “it is the first time that this Court has had to decide on a case which stems from the application of the Suppression of Extremist Activities Act (..), and will thus be the starting point of a body of case-law which will serve as a reference not only in future cases concerning Russia, but for all other Member States as well.” Continue reading