The European Court of Human Rights confirmed on 11 June 2020 that hate speech against the LGBT is not a human right. In fact it’s punishable by fine or imprisonment for up to 2 years. The Court found a complaint from a person that had been found guilty of hate speech by The Supreme Court of Iceland “manifestly ill-founded” and rejected it.
The Supreme Court thus found that the private life interests protected the Constitution and the General Penal Code outweighed the applicant’s freedom of expression in the circumstances of the case and that curbing that freedom was both justified and necessary in order to counteract the sort of prejudice, hatred and contempt against certain social groups which such hate speech could promote.
Mr Carl Jóhann Lilliendahl, an Icelandic national born in 1946 was first acquitted by the District Court in 2017. Citing the applicant’s freedom of expression, the District Court considered that the comments did not reach the threshold required for them to fall within the scope of Article 233 (a) of the General Penal Code and that it had not been shown that the applicant had had the intent of violating that provision. On the 14 December 2017, the Supreme Court overturned the District Court’s judgment and convicted the applicant.
The circumstances of the case, as submitted by the applicant, is summarised as follows in the ruling of The European Court of Human Rights.
On 15 April 2015, the municipal council of the town of Hafnarfjörður, Iceland, approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. This was to be done in cooperation with the national LGBT association, Samtökin ‘78.
The decision was reported in the news and led to substantial public discussion, inter alia on the radio station Ú.S., where listeners could phone in and express their opinions on the decision of the municipal council. In a subsequent online news article, one of the initiators of the proposal, Ó.S.Ó., criticised the radio show for what he described as allowing people to phone in and express “clear prejudice and hate speech” without criticism from the show’s host. Ó.S.Ó. furthermore expressed his wish to come on the show and answer criticism of the municipal council’s decision.
The applicant was one of those who took part in the public discussion. He wrote comments below the above-mentioned article on 21 April 2015, stating the following:
We listeners of [Ú.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó.]. This is disgusting. To indoctrinate children with how kynvillingar [literally ‘sexual deviants’] eðla sig [‘copulate’, primarily used for animals] in bed. [Ó.S.Ó.] can therefore stay at home, rather than intrude upon [Ú.S.]. How disgusting.
Subsequently, Samtökin ‘78 reported the applicant’s comments to the Reykjavík Metropolitan Police, claiming it violated Article 233 (a) of the General Penal Code No. 19/1940 (see below). The case was dismissed by a police prosecutor on 8 September 2015, but that decision was annulled on 6 November 2015 by the Director of Public Prosecution, who instructed the Metropolitan Police to carry out an investigation.
The subsequent investigation led to the applicant’s indictment on 8 November 2016. According to the indictment, his comments, quoted above, were considered to constitute publicly threatening, mocking, defaming and denigrating a group of persons on the basis of their sexual orientation and gender identity, in violation of Article 233 (a) of the General Penal Code.
By a judgment of 28 April 2017, the District Court of Reykjavík acquitted the applicant. Citing the applicant’s freedom of expression, the District Court considered that the comments did not reach the threshold required for them to fall within the scope of Article 233 (a) and that it had not been shown that the applicant had had the intent of violating that provision.
The judgment was appealed against by the Director of Public Prosecution to the Supreme Court of Iceland.
By a judgment of 14 December 2017, the Supreme Court overturned the District Court’s judgment and convicted the applicant.
The Supreme Court’s judgment first discussed the origins of Article 233 (a) of the General Penal Code, noting that it had originally been introduced following Iceland’s ratification of the United Nations’ Convention on the Elimination of All Forms of Racial Discrimination and subsequently amended inter alia to extend its protection to sexual orientation and gender identity. These amendments had been made with reference to Nordic developments, to the Additional Protocol to the Council of Europe’s Convention on Cybercrime concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, to the Recommendation of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, and to the Parliamentary Assembly’s Resolution on Discrimination on the basis of sexual orientation and gender identity.
The Supreme Court then discussed the charges against the applicant, noting at the outset that although the applicant enjoyed freedom of expression under the Constitution of Iceland and the European Convention on Human Rights, that freedom was subject to some limitations. Such limitations could notably be those necessary to protect the rights of others, including the right of homosexual persons to respect for private life and to enjoy human rights equally to others, irrespective of their sexual orientation. Establishing that Article 233 (a) of the General Penal Code constituted one such limitation of the freedom of expression clearly established by law, the Supreme Court furthermore reasoned that the limitation established by the provision was clearly necessary, in general, in order to safeguard the rights of social groups which had historically been subjected to discrimination. It noted that the protection afforded to such groups by Article 233 (a) was compatible with the national democratic tradition, reflected in Article 65 of the Constitution, of not discriminating against persons based on their personal characteristics or elements of their personal lives, and that it was in line with international legal instruments and declarations to protect such groups against discrimination by way of penalization.
The Supreme Court went on to discuss the substance of the provision, and stated:
“Article 233 (a)’s description of the conduct which it penalizes is worded in a clear and comprehensible manner. The provision does not mention the concept of ‘hate speech’, although it is used in the indictment at the beginning of the description of the charges against the [applicant], as well as in the aforementioned preparatory works of the Bill which became Act No. 13/2014 [amending Article 233 (a), see paragraph 19] and the international recommendations and resolutions concerning legislation in this area. This concept can be seen as the common denominator for the mocking, defaming, denigrating or threatening behaviour which the provision criminalizes, and simultaneously as a threshold of the requisite severity of the expression necessary for it to fall under the provision. The expression must thus convey such disgust, antipathy, contempt or condemnation that it can be considered to amount to hate speech towards the subject of the expression. This substance of the provision must be considered clear and foreseeable to the public.”
Turning to the applicant’s comments, the Supreme Court noted the following:
“Considering the discussion in which the [applicant] made the comment, it is evident that it referred to homosexual men and homosexuality as such, in relation to the idea of introducing education on homosexuality in elementary and secondary schools. Although the words kynvilla [sexual deviation] and kynvillingar [sexual deviants] may in the past have been considered appropriate, by some, to describe homosexuality and homosexuals, it is beyond any doubt that today, these words constitute prejudicial slander and disparagement of those against whom they are employed. This was aggravated by the applicant’s expression of disgust at such conduct and orientation. His conduct thus falls under Article 233 (a) of the General Penal Code.”
The Supreme Court added that the comments had been made publicly, fulfilling the public forum requirement of Article 233 (a). On the subject of the applicant’s intent to commit the crime, the Supreme Court stated:
“According to the wording of Article 233 (a) of the General Penal Code, cf. Article 18, the provision entails a requirement of intent. Such intent must apply to the action of expressing oneself with words, symbols, pictures or in another manner, but whether such expression constitutes mocking, defaming, denigrating or threatening a person for their nationality, colour, race, religion, sexual orientation or gender identity must be assessed in an objective manner. In that assessment, account should not be taken of the motives which the person in question claims were behind their expression. Thus, the [applicant’s] conduct must be considered intentional, as he has not claimed that the comment was made negligently or by accident.”
Having established that the applicant’s comments fell under Article 233 (a) of the General Penal Code, the Supreme Court went on to assess whether it was necessary to restrict the applicant’s freedom of expression under Article 73 of the Constitution. It noted that according to established case-law, restrictions on that freedom were only justified if they addressed a pressing social need and that caution should be employed when accepting any such restrictions; speech which was merely insulting or hurtful did not reach the applicable threshold. The Supreme Court went on to note that the applicant’s comments had been made in the context of a public discussion on the important topic of the raising and schooling of children, and that the discussion had already become heated and vituperative to some extent. Although the comments had not been directly aimed at children, seeing as the discussion had taken place in a public forum and concerned the interests of youth, it was to be expected that children might take part in the discussion and read the applicant’s comments. Considering that the decision which was the subject of the discussion had merely intended for Samtökin ‘78 to act as an advisor to those in charge of writing the educational material and providing the counselling, the applicant’s comments had had little connection with the subject of the discussion. The Supreme Court then stated:
“The [applicant’s] comment was serious, severely hurtful and prejudicial, none of which was necessary for him to express his opposition to such education. Within such a discussion, a reasonable purpose for the [applicant’s] comment can hardly be discerned.”
The Supreme Court thus found that the private life interests protected by Article 71 of the Constitution and Article 233 (a) of the General Penal Code outweighed the applicant’s freedom of expression in the circumstances of the case and that curbing that freedom was both justified and necessary in order to counteract the sort of prejudice, hatred and contempt against certain social groups which such hate speech could promote. It convicted the applicant and, referring to his age and clean criminal record, sentenced him to a fine of 100,000 Icelandic krónur (ISK, approximately 800 euros (EUR) at the time).
One of the three Supreme Court judges sitting on the panel in the applicant’s case dissented. In his opinion, the applicant’s comments did not reach the threshold of Article 233 (a) of the General Penal Code. The minority reasoned that although the comments had been derogatory, they had constituted neither a call for violence nor accusations of criminal behaviour. Considering that the comments had been part of a public discussion and not particularly forced upon anyone, the minority found that the applicant’s comments should be protected by the freedom of expression and his acquittal confirmed.
Article 233 (a) of the General Penal Code No. 19/1940 (Almenn hegningarlög), which forms a part of Chapter XXV entitled “Defamation of character and violations of privacy”, reads as follows:
“Anyone who publicly mocks, defames, denigrates or threatens a person or group of persons by comments or expressions of another nature, for example by means of pictures or symbols, for their nationality, colour, race, religion, sexual orientation or gender identity, or disseminates such materials, shall be fined or imprisoned for up to 2 years.”
Featured Image: Bryce Durbin/TechCrunch
