Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
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Closed Contracts Expression
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The defendant who posted a racist message on the Facebook profile of a well-known singer, writer and journalist was convicted under Norway’s hate speech laws. He alleged she had “slept her way into permanent leave to stay” and called on her to “move back to Africa”. He was sentenced to imprisonment because he was also found to be in possession of illegal drugs.
The defendant, X, learned that a well-known singer, writer and journalist of mixed African-Norwegian background was pregnant with the child of a former cabinet minister. He posted a message on her Facebook profile, which was set to ‘open’, saying:
“Congratulations, you have managed to sleep your way into permanent leave to stay in the country. Why can’t you take your family with you and move back to Africa? Why can’t you show such minimal respect (as) there is no war where you are coming from. You indecent disgusting half-ape. Get out of the country. Damn nigger.”
The singer left the abusive message up and posted another message highlighting the abuse to her Facebook followers. She declined to press charges but the poster was eventually prosecuted by the Hate Crimes Unit of Oslo Police. Additional charges were brought for possession of marihuana.
The defendant, an unemployed thirty-four year old white man, testified that he had completed his high school education and military service, but that he lived at home with his mother and had never held regular work. He had no wealth or income. He argued that he had intended to send the singer a personal message via Facebook, and that he had sent it from a PC at a local library since his own PC was broken at the time. He testified that he did not know the difference between an open and a closed Facebook profile, and that he was an irregular Facebook user in spite of having used it since 2008. He accepted that the racist message was hurtful to the victim, but expressed satisfaction with the fact that it had unintentionally been seen by many others.
The Oslo District Court found that the defendant had been grossly negligent in posting this Facebook message, and that the offense therefore satisfied the legal requirements for guilt under Norwegian criminal law. The Court found that the message constituted the offence of uttering hate speech based on skin color and/or national or ethnic background under Section 185 of Norway’s Penal Code. The Court declared that the words and phrases used in the Facebook post, such as “indecent disgusting half-ape” and “damn nigger” were not of a nature that deserved the protection of the constitutional right to freedom of expression. The Court emphasized that hate speech offenses on social media had a particularly damaging potential due to their capacity to reach a large number of people. The Court would ordinarily have imposed a sentence of conditional imprisonment, meaning that the defendant would not go to prison unless he re-offends or violates other terms of the sentence, but because the defendant was also found in possession of marihuana he was sentenced to thirty days unconditional imprisonment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision indicates the limits of hate speech under Norwegian law, indicating the limits of the right to freedom of expression.
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.
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