Case Summary and Outcome

The European Court of Human Rights found that the conviction and penalization of applicant Carl Johann Lilliendahl for homophobic comments posted underneath an online news article did not amount to a breach of his freedom of expression under Article 10 of the European Convention of Human Rights. The court found the application to be manifestly ill-founded and rejected it. The Icelandic courts had convicted the applicant for publicly making “serious, severely hurtful and prejudicial” comments regarding sexual orientation and gender identity, in the wider context of increased education and counselling about LGBTI issues in schools. Whilst the applicant’s comments did not explicitly constitute a call for violence, the use of derogatory language and clear expressions of disgust amounted to promoting the intolerance of homosexual persons, and thus constituted hate speech. Considering the case as a whole, including the severity of the fine imposed and the lack of contribution to public discourse, the Court did not find the interference with the applicant’s right to freedom of expression to be excessive and unnecessary in a democratic society.  Rather, the Court endorsed the Icelandic authorities’ decision in favour of protecting the rights of social groups that have been traditionally discriminated against, and upholding rights to respect for private life and equal enjoyment of human rights for all.

---

Facts

On April 15 2015, the Icelandic town of Hafnarfjörður upheld a proposal to improve the education and counselling of sexual orientation and gender identity matters in its elementary and secondary schools, with national LGBT association Samtökin ’78 taking on an advisory role. The council’s decision was subject to intense media scrutiny, including on the radio station U.S., where listeners were able to phone in to relay their views on the topic – one such caller being the applicant, Icelandic national Carl Johann Lilliendahl. In a subsequent online news article, an initiator of the proposal condemned the radio show and its host for creating a space whereby listeners could express harmful and disrespectful views without challenge. On April 21, the applicant left comments below that online article describing homosexuality as “disgusting”, using expletives and employing derogatory language to imply a link between homosexuality, sexual deviancy and animals mating.

Samtökin ’78 reported the applicant to the Reykjavik Metropolitan Police for a violation of Article 233(a) of the General Penal Code. On 8 November 2016, the applicant was indicted for a violation of Article 233(a), on the grounds that his comments publicly mocked, defamed, denigrated or otherwise threatened a group of persons based on their sexual orientation. On 28 April 2017, the applicant was acquitted by the District Court of Reykjavik, on the basis that his comments did not meet the threshold required to fall within the scope of the Code, that there was insufficient evidence of intent to violate the Code, and that he was entitled to the right to freedom of expression. The Director of Public Prosecutions appealed this decision.

On 14 December 2017, the Supreme Court of Iceland reversed the lower court’s decision and convicted the applicant under Article 233(a).  In its judgment, the Court clarified that the applicant’s right to freedom of expression under the Constitution of Iceland and the European Convention on Human Rights could be constrained – most relevantly, by the need to protect the rights of others (including a homosexual person’s right to respect for private life and to equal enjoyment human rights irrespective of sexual orientation). Article 233(a) and Article 65 of the Icelandic Constitution were thus a necessary limitation on the applicant’s freedom of expression, “in order to safeguard the rights of social groups which had historically been subjected to discrimination” (para 12). The Court then found that the applicant’s use of derogatory terms “constitute[d] prejudicial slander and disparagement of those against whom they are employed… [and] was aggravated by the applicant’s expression of disgust at such conduct and orientation” (para 14). Further, the applicant’s conduct clearly fell within the scope of Article 233(a) as his comments were clearly made publicly and that his conduct was “intentional, as he has not claimed the comment was made negligently or by accident” (para 15).

Having met the thresholds under Article 233(a), the Court then assessed whether it was necessary to restrict his freedom of expression per Article 73 of the Constitution, which could only be justified if addressing a “pressing social need” (para 16). Given the context of the applicant’s contribution to a public discourse regarding children’s education and an advisory role for Samtökin ’78, the Court found that his comments were unnecessary to the public discussion, were “serious, severely hurtful and prejudicial” and as such were without a “reasonable purpose” (para 16). The Court thus held that the rights protected by Article 71 and Article 233(a) outweighed the applicant’s right to freedom of expression within the context of the case. The applicant was convicted and sentenced to a fine of 100,000 Icelandic krónur (approximately 800 EUR).

The applicant subsequently lodged an application to the European Court of Human Rights, alleging a violation of his right to freedom of expression under Article 10 and Article 14 of the European Convention of Human Rights.

---

Decision Overview

The Second Section’s Chamber of the European Court of Human Rights delivered the unanimous decision . The central issue for the Court’s determination was whether the applicant’s conviction and penalty for making homophobic comments amounted to breach of the applicant’s freedom of expression under Article 10 of the Convention.

The applicant alleged per Article 10 of the Convention that his conviction amounted to violation of his freedom of expression, and per Article 14, that his right to enjoy the freedom of expression equally to other persons had been infringed.

General principles and legal basis

Because the applicant’s conviction was held to clearly constitute an interference with his right to freedom of expression under Article 10, the Court was tasked with determining whether the violation prescribed by law, and if that violation was proportionate to the legitimate aim pursued and necessary in a democratic society in order to achieve those aims. There is vast precedent establishing the importance of freedom of expression to democratic society and to individual self-fulfilment, even in cases where “information” or “ideas” are considered offensive, shocking or disturbing, owing to demands of pluralism and tolerance. Citing Von Hannover v Germany (no.2) [GC] ECHR [2012] 40660/08 and 60641/08 and Bédat v Switzerland [GC] ECHR [2016] 5692/08, the Court warned that any exceptions to freedom of expression must be construed strictly and solidly established.

In order to establish whether an interference with the applicant’s right is “necessary in a democratic society”, the Court must examine any such encroachment within the whole context of the case, and determine whether “it was proportionate to the legitimate aim pursued”, with reference to the “relevant and sufficient” justifications of the national authorities (para 29). It must also consider the interference against the nature and severity of any penalty imposed.

Citing past decisions of Steel and Morris v the United Kingdom ECHR [2005] 68416/01 and Stoll v Switzerland [GC] ECHR [2007] 69698/01, the Court highlighted that each Contracting State enjoys a certain margin of appreciation when the Court assesses the necessity and proportionality of an interference with Article 10 (that is, that the court will not substitute its own assessment of the merits without strong reasons for doing so). However, the final ruling ultimately lies with the Court.

The Court also noted Iceland’s obligations under international law to take appropriate measures to counter discrimination on the basis of gender identity or sexual orientation, including prohibiting hate speech while upholding its commitment to the right to freedom of expression in accordance with the Convention and the case law of the European Court of Human Rights.

Assessing the Comments as Hate Speech

The Court began by evaluating the nature of the applicant’s comments and the two categories of hate speech under which they might fall. It promptly excluded the applicant’s comments from hate speech of the “gravest form” – which falls in scope of Article 17 and is excluded from Article 10 entirely – because it is “not immediately clear that they aimed at inciting violence and hatred or destroying the rights and freedoms protected by the Convention” (para 26). The second category of hate speech is considered less grave and may be restricted by States (para 35). Indeed, the Court referred to a plethora of past decisions that had classified certain expressions to be hate speech after an assessment of the content and its delivery, even when that speech does not call for violence or other criminal acts. For example, in Féret v. Belgium ECHR [2009] 15615/07, the Court found that there was no violation of Article 10 when an applicant was convicted of publicly inciting discrimination or hatred for making racist comments, because those statements were made by a politician during a political campaign and  had a much broader impact on the public. Similarly, the Court referred to Vejedeland and Others v Sweden ECHR [2012] 1813/07, where it found no violation of Article 10 when an applicant was convicted for distributing leaflets that were offensive to the LGBTI community, particularly because they had been distributed to young and impressionable people at school.

The Court accordingly upheld the Supreme Court’s assessment that the applicant’s comments made were “serious, severely hurtful and prejudicial” and constituted hate speech. This was because the use of derogatory language and expressions of disgust “promoted intolerance and detestation of homosexual persons” (para 37) even if the comments were not directly targeted at that group. Nevertheless, although the statements were made in “public”, the fact the applicant did not have a significant platform with the ability to reach a wide audience should be taken into account.

Lawfulness, legitimate aim and necessity

The Court then turned to assessing whether the applicant’s conviction under Icelandic law fulfilled the three requirements of lawful restriction on freedom of expression, as imposed by Article 10(2) of the Convention: first, whether it was prescribed by law, second, whether the interference was in pursuance of legitimate aim and third, whether it was necessary in the democratic society.

As aforementioned,  Article 233(a) of the General Penal Code prohibits the public mocking, defamation, denigration or threatening of a person or group for their sexual orientation or gender identity. Citing Delfi AS v Estonia ECHR [2015] 64569/09 , the Court endorsed the Supreme Court’s reasoning that this Article was sufficiently clear “so as to render its application reasonably foreseeable in the applicant’s case” (para 41).  The restriction of the applicant’s right to freedom of expression was deemed to be prescribed by law.

The Court also endorsed the Supreme Court’s finding that Article 233(a) aimed to protect the rights of social groups that have been traditionally discriminated against, as well as to uphold rights to respect for private life and equal enjoyment of human rights. This was successfully considered to be a legitimate aim of protecting the rights and reputation of others, as stated in Article 10(2) of the Convention.

Finally, the Court considered the necessity of the interference with the applicant’s rights to freedom of expression in a democratic society.  It noted the Icelandic courts’ consideration of competing interests and constitutional rights in this case, and accepted the Supreme Court’s findings that the applicant’s comments were “serious, severely hurtful and prejudicial” based upon relevant and sufficient reasoning (para 45). The Court particularly emphasized that the applicant’s comments had not criticized the council’s decision itself, and as such any prejudicial or otherwise derogatory language had no place in the ongoing public discussion. The Court also drew attention to the fact the applicant had been sentenced to a fine of 800 EUR instead of a possible two years’ imprisonment, which was not excessive, but rather adequately balanced in congruence with the circumstances. Taking all of this into consideration, the Court upheld the Supreme Court’s assessment and concluded that it had acted appropriately within its margin of appreciation.

The Court unanimously declared the applicant’s complaint under Article 10 to be “manifestly ill-founded” (para 48) and rejected it in accordance with Article 35 §§ 3 (a) and 4 of the Convention. No violation of the applicant’s rights under Article 10 was found. Interfering with the applicant’s right to freedom of expression was not unreasonable in this case – rather, it was held to be apposite, considering the need to protect the rights of those traditionally discriminated against, the nature and severity of the comments, and the wider context of the case.

---