Homophobic comments, hate speech and sentencing into fine payment. Non-violation of the freedom of expression of the commentator

JUDGMENT

Carl Jóhann Lilliendahl v. Iceland 11.06.2020 (no. 29297/18)

see here

SUMMARY

The case concerned the applicant’s conviction and fine for homophobic comments he had made in
response to an online article.

The Court found that the applicant’s comments had amounted to hate speech within the meaning of
its case-law. It accepted the Icelandic Supreme Court’s finding that the comments had been “serious,
severely hurtful and prejudicial”, and that the decision which had originally sparked the debate,
concerning measures to strengthen education in schools on lesbian, gay, bisexual or transgender
matters, had not warranted such a severe reaction.

The domestic courts’ decisions in the case, taken after an extensive balancing exercise between the
applicant’s right to freedom of expression and the rights of gender and sexual minorities, had
therefore been reasonable and justified.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Carl Jóhann Lilliendahl, is an Icelandic national, who was born in 1946 and lives in
Reykjavik.

In April 2015, the local authorities of Hafnarfjörður, a town in Iceland, approved a proposal to
strengthen education in elementary and secondary schools on lesbian, gay, bisexual or transgender
matters. This was to be done in cooperation with the national LGBT association, Samtökin ‘78.
The decision led to substantial public discussion, on news outlets and social media, which the
applicant became involved in. In particular he wrote comments in response to an online article,
expressing his disgust and using derogatory words for homosexuality, namely kynvilla (sexual
deviation) and kynvillingar (sexual deviants).

Samtökin ‘78 reported the applicant’s comments to the police. Following an investigation, he was
indicted in November 2016 under Article 233 (a) of the General Penal Code which penalises publicly
mocking, defaming, denigrating or threatening a person or group of persons for certain
characteristics, including their sexual orientation or gender identity.

The applicant was acquitted at first instance, but in December 2017, the Supreme Court overturned
the court’s judgment and convicted him, fining him 100,000 Icelandic krónur (approximately 800
euros at the time).

The Supreme Court found that the applicant’s comments were “serious, severely hurtful and
prejudicial”, and weighing up the competing rights at play in the case, ruled that it was justified and
necessary to curb the applicant’s freedom of expression in order to counteract prejudice, hatred and
contempt and protect the rights of social groups which have historically been subjected to
discrimination.

THE DECISION OF THE COURT…

First, the Court found that the applicant’s comments had not amounted to the gravest form of “hate
speech” as understood in its case-law, which could be excluded from the protection of Article 10
through the application of Article 17 (prohibition of abuse of rights). Although the comments had
been highly prejudicial, it was not immediately clear that they had aimed at inciting violence and
hatred or destroying the rights and freedoms protected by the Convention.

The Court did however find, like the Supreme Court of Iceland, that the comments had promoted
intolerance and hatred of homosexuals. It therefore considered that they had come under the “less
grave” form of “hate speech” within the meaning of its case-law, which it had previously held that
States were allowed to restrict.

It also agreed with the Supreme Court that Article 233 (a) of the General Penal Code had been
worded in a sufficiently clear manner for the applicant to have been able to foresee that it could be
applied in his case. The interference with his freedom of expression had therefore been “prescribed
by law” and had moreover pursued the legitimate aim of “protecting the rights of others”.

As to the proportionality of the interference, the Court concluded that the Supreme Court’s
assessment of the nature and severity of the comments had not been manifestly unreasonable. Nor
had the penalty it had imposed, a fine rather than a sentence of imprisonment, been excessive.
Indeed, the Supreme Court had extensively weighed the competing interests at stake, namely the
applicant’s right to freedom of expression against the rights of homosexual persons to private life.
The Court therefore found that the applicant’s complaint under Article 10 was manifestly ill-founded
and rejected it as inadmissible.


ECHRCaseLaw
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