Content Regulation / Censorship, Hate Speech, Public Order, Religious Expression, Political Expression
Gündüz v. Turkey
Closed Contracts Expression
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The Supreme Court of Norway upheld the conviction of an individual for hate speech and inconsiderate behavior for using racial slurs against a Norwegian-African doorman who refused him entry into a bar due to suspected intoxication. In 2011, the Stavanger Magistrate’s Court sentenced the individual to 18 days imprisonment and a fine of 15, 000 Norwegian kroner (NOK) for hate speech (section 135(a) of the Penal Code) and inconsiderate behavior (section 390 of the Penal Code). The Gulating Court of Appeals unanimously rejected an appeal on both counts. The Supreme Court accepted the appeal of the conviction pursuant to section 135 (a) of the Penal Code for consideration. Following its deliberation, the Supreme Court unanimously rejected the appeal as hate speech could not benefit from the constitutional protections under the right to freedom of expression.
Having spent some hours drinking at various bars in the city of Stavanger, Norway with a work colleague on July 28, 2010, the defendant (Mr. X) had tried to gain entry to a bar at approximately 02.30 am while in a state of intoxication. Upon being refused entry by the doorman due to his drunken appearance, he started arguing with the doorman outside the bar. The doorman was of Norwegian-African ethnicity.
Mr. X repeatedly referred to the doorman as a “fucking Negro” and “fucking darkie”, and demanded to talk to the doorman’s manager. Around a dozen people waiting in the queue to the bar witnessed the events. The doorman led Mr. X to the perimeters of the outdoor area of the bar, and called up his manager via radio. When the doorman’s manager arrived, the doorman left it to him to handle Mr. X.
Mr. X proceeded to ask the manager how long he “intended to let a Negro control entry to the bar?” The work manager proceeded to make it clear in no uncertain terms that Mr. X stood no chance of entry. Mr. X continued the argument with the manager, referring once more to the doorman as a “fucking darkie” and the work manager as a “niggerlover”. The manager then pushed him further outside into the streets, where Mr. X was left swearing to the doormen at the bar.
On January 28, 2011, the Stavanger Magistrate’s Court sentenced Mr. X to 18 days imprisonment and a fine of 15, 000 Norwegian kroner (NOK) for hate speech (section 135(a) of the Norwegian General Penal Code) and inconsiderate behavior (section 390 of the Norwegian General Penal Code). The Gulating Court of Appeals unanimously rejected an appeal on both counts. The case was then appealed to the Supreme Court of Norway.
The Supreme Court of Norway (Supreme Court) began by noting that the scope of section 135a of the Norwegian General Penal Code, which prohibits hate speech based on skin color and/or national or ethnic background, had only been considered in relation to expressions that had been expressed in a political context. The present case raised the question of its application to statements which were different in form, content and context. The Supreme Court found that Mr. X’s statements could not be considered political in nature, but were only intended to denigrate and harass the victim. The court also found that the statements were communicated to the public, which was required before an individual could be convicted under section 135 (a) of the Norwegian General Penal Code.
The Supreme Court held that the statement denigrated the doorman on the basis of his skin color and ethnicity, and was directed at his human dignity. The Court held that the spontaneous nature of the statements did not affect the substantive content of the utterances. In doing so, the court ruled out the argument that the defendant’s statements were motivated by his intoxicated state, and that he did not hold the attitudes that the criminalization of hate speech under section 135 (a) was meant to target. The Supreme Court held that the motives for making the statements were irrelevant to the offence.
The Supreme Court also took into account the context in which the speech was made, noting that the legal protection against racist speech would be severely affected if employees in service trades were not legally protected against the kind of denigration Mr. X demonstrated. The Supreme Court, making references to the parliamentary amendments to section 135 (a) in 2005, noted that the threshold for criminal punishment had been lowered as a result and that previous case law on hate speech no longer applied.
In summary, the Court found that the racist speech in which defendant Mr. X had engaged constituted pure harassment, rather than political speech, and that it could not be counted as a form of speech protected by the constitutional guarantees for freedom of expression in the amended Article 100 of the Norwegian Constitution of 2005.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision establishes the Supreme Court’s current legal precedent in hate speech cases, and notes that the threshold for prosecution of hate speech is to be lower compared to other speech offences. The Supreme Court’s higher threshold applied in its previous case law was found by the UN ICERD Commission to violate the obligations of the State of Norway under the International Convention For The Elimination Of All Forms of Racial Discrimination (ICERD).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This case sets a binding and persuasive precedent within its jurisdiction for hate speech cases under the former section 135 (a) of the Norwegian General Penal Code, and the current (since October 2015) section 185 of the Norwegian Penal Code.
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