EHRM, 09-02-2012, nr. 1813/07

The case originated in an application (no. 1813/07) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by four Swedish nationals, Mr Tor Fredrik Vejdeland, Mr Mattias Harlin, Mr Björn Täng and Mr Niklas Lundström (‘the applicants’), on 4 January 2007.

The applicants were represented by Mr N. Uggla, a lawyer practising in Stockholm. The Swedish Government (‘the Government’) were represented by their Agent, Mrs A. Erman, of the Ministry for Foreign Affairs.

The applicants alleged that the Supreme Court judgment of 6 July 2006 constituted a violation of their freedom of expression under Article 10 of the Convention. They further submitted that they were punished without law in violation of Article 7 of the Convention.

On 27 November 2008 the President of the Third Section decided to give notice of the application to the Government.

The application was later transferred to the Fifth Section of the Court, following the re-composition of the Court's sections on 1 February 2011. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

In addition to written observations by the applicants and the Government, third-party comments were received jointly from the International Centre for the Legal Protection of Human Rights and the International Commission of Jurists, whom the President had authorised to intervene in the written procedure (Article 36 § 2 of the Convention).

Declares the complaint under Article 10 admissible and the remainder of the application inadmissible;

Holds unanimously that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 9 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek

Registrar

Dean Spielmann

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

D.S.

C.W.

I have to confess that it is with the greatest hesitation that I voted in favour of finding no violation of Article 10 of the Convention.

As my colleague, Judge András Sajó, pointed out in his dissenting opinion joined to the Féret v. Belgium judgment:

In paragraph 54 of the judgment the Court elaborates its reasoning step by step, applying for the first time the principles relating to speech offensive to certain groups to speech against homosexuals.

Firstly, the reasoning endorses the position of the Swedish Supreme Court that the aim of starting a debate about the lack of objectivity of education in Swedish schools is an acceptable one.

Secondly, the Court also admits that these statements did not encourage individuals to commit hateful acts.

Thirdly, and relying on the judgment of Féret v. Belgium,2. the Court then reiterates that inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts, and that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner.

Finally, the Court extends the findings in Féret to offensive speech directed against homosexuals.

The leaflets at issue undoubtedly contained statements that were totally unacceptable. However, to equate the content of the leaflets to hate speech within the meaning of our case-law needs robust justification. In my opinion, establishing this link by mere reference to the Smith and Grady precedent3. (paragraph 55 in fine) is not sufficient. Indeed, the offending statements should have been defined more precisely, bearing in mind that, by virtue of Article 17 of the Convention,4. ‘hate speech’, in the proper meaning of the term, is not protected by Article 10. A careful, in-depth analysis of the aim of the speech would have been necessary. As already indicated, the Supreme Court considered the aim (starting a debate) as being acceptable.5. However, the domestic courts should have examined more thoroughly whether behind the apparent aim there was any hidden agenda to degrade, insult or incite hatred against persons or a class of persons on account of their sexual orientation. In the case at hand the Supreme Court, after having admitted that the applicants' actions had a legitimate purpose, namely starting a debate on a matter of public concern, characterised the impugned statements, not without contradiction, as being ‘unnecessarily offensive.’ It justified the interference by acknowledging the applicant's right to express his ideas, while at the same time stressing that freedoms and rights went hand in hand with obligations; one of which was ‘to avoid, as far as possible, statements that are unwarrantably offensive to others, constituting an assault on their rights’ (paragraph 57 of the judgment).

It is submitted that this is a rather vague test which seems to me to be inconsistent with the traditional and well-established case-law of our Court going back to Handyside,6. namely that ‘Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. …’7.

Still, I agreed, albeit very reluctantly, to find no violation because the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access (paragraph 56). Admittedly, the ‘place of distribution’ is neither an incriminating factor, part of the actus reus, nor an aggravating circumstance in Swedish law. However, the factual circumstances of the distribution have an impact regarding the scope of the margin of appreciation in a case where, as is rightly pointed out in paragraph 58, the penalties were not excessive or disproportionate. As highlighted in paragraph 56, the leaflets were in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept the leaflets. Noting that members of the LGBT community face deeply rooted prejudices, hostility and widespread discrimination all over Europe,8. I would like also to mention in this context the Resolution adopted by the Committee of Ministers on 21 October 2009 concerning collective complaint No. 45/2007 and containing the findings of the European Committee of Social Rights recognising that statements of a homophobic nature contribute to an atmosphere of hostility and violence against sexual minorities. Dealing with the provision of sexual and reproductive health education in schools, in its report finding a violation of Article 11 § 2 in the light of the non-discrimination clause of the European Social Charter, the European Committee of Social Rights criticised certain passages in educational materials provided by the state which said that ‘… [n]owadays it has become evident that homosexual relations are the main culprit for increased spreading of sexually transmitted diseases (e.g. ‘AIDS’), or ‘The disease [AIDS] has spread amongst promiscuous groups of people who often change their sexual partners. Such people are homosexuals, because of sexual contacts with numerous partners, drug addicts, because of shared use of infected drug injection equipment, and prostitutes’.’ It was rightly pointed out that ‘these statements stigmatise homosexuals and are based upon negative, distorted, reprehensible and degrading stereotypes about the sexual behaviour of all homosexuals.’ (Resolution CM/ResChS(2009)7, Collective complaint no. 45/2007 by the International Centre for the Protection of Human Rights (INTERIGHTS) v. Croatia). Moreover, in Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity (31 March 2010), specific action to ensure the full enjoyment of human rights by LGBT persons is called for, albeit in accordance with the principles of Article 10 of the Convention,9. by recognising that non-discriminatory treatment by State-actors, as well as, where appropriate, positive State measures for protection against discriminatory treatment, including by non-State actors, are fundamental components of the international system protecting human rights and fundamental freedoms.

It should also not been forgotten that a real problem of homophobic and transphobic bullying and discrimination in educational settings may justify a restriction of freedom of expression under paragraph 2 of Article 10. Indeed, according to studies carried out across member States and supported by some government research, LGBT students suffer from bullying from both peers and teachers.10.

It is against this background that I am satisfied, on balance, that the conviction concerning the distribution at a school of leaflets containing statements directed against the homosexual community did not violate Article 10 of the Convention.

It was with some hesitation that I voted for no violation of Article 10 of the Convention. I would agree with the finding in this case without any impediment were the judgment based predominantly on its paragraph 56. There we maintain that it ought to be considered ‘that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and had no possibility to decline to accept them. … Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.’

In this respect, the case before us may relevantly be compared to Snyder v. Phelps et al, 562 U.S.___(2011), decided last year by the Supreme Court of the United States. In Snyder an anti-homosexual demonstration far more insensitive than the events in the case at hand took place about 300 metres from the church where the funeral of Mr. Snyder's son, Corporal Matthew Snyder, who was killed in Iraq in the line of duty, was taking place. There is no need to repeat here the contents of the offensive picketing signs displayed by the members of the congregation of the Westburo Baptist Church, who were in the habit of picketing military funerals in order to communicate their belief that God hates the United States for its tolerance of homosexuality, particularly in America's military.

It is interesting to note that the American Supreme Court takes a very liberal position concerning the contents of the controversial messages. That the statement is arguably of inappropriate or controversial character ‘… is irrelevant to the question of whether it deals with a matter of public concern’1..In other words, freedom of speech in Snyder — a fortiori as a tort case, not a criminal case — was not to be impeded by considerations of proportionality as long as the statement in question could be ‘fairly considered as relating to any matter of political, social, or other concern to the community’. ‘Speech on public issues occupies the highest rank of the hierarchy of First Amendment values, and is entitled to special protection’..2.

Moreover, the American Supreme Court has set a higher standard for the applicable law in such cases to be facially constitutional. First, it must avoid content discrimination (i.e., the State cannot forbid or prosecute inflammatory speech only on some ‘disfavoured’ subjects) and, second, it must avoid viewpoint discrimination (i.e., forbidding or prosecuting inflammatory speech that expresses one particular view on the subject).3.

Thus, for example, the legislator may impose a general ban on the public use of rude racial slurs; it cannot, however, criminalise their use solely in race-related public discourse, or their use in order to express only a racist viewpoint. It is interesting to note that if this American double test were applied to the present case, the applicable law (Chapter 16, Article 8 of the Swedish Penal Code) would not pass muster on either count, especially the second: had the applicants defended homosexuality and railed against ‘wicked homophobes’ in their leaflets, they would probably not have been convicted.

In our case we have relied on a different kind of logic as did the Swedish Supreme Court, among others (although divided three to two), which considered the relatively inoffensive language of the leaflets to be a cause for criminal prosecution and eventually for conviction and punishment.

It is interesting to note that speech inflaming national, racial, etc. hatred was first incriminated in the 1952 Criminal Code of Communist Yugoslavia and this has since been copied by many other jurisdictions, and cited in leading American case books on criminal law, for example. Therefrom developed the notion of hate speech subject to criminal prosecution where one protected class of people was ‘unwarrantably offensive to others thus constituting an assault on their rights, and without contributing to any form of public debate which could help to further mutual understanding.’ If we compare the two cases we might find that the American approach to free speech deriving from the First Amendment is perhaps insensitive. On the other hand, we might certainly also conclude that the above quotation from the Swedish Supreme Court judgment of 6 July 2006 demonstrates an oversensitivity in collision with free speech postulates.

This in my opinion is a culturally predetermined debate and is not necessary in a situation where even the Swedish Supreme Court, in its famous pastor's sermon speech case (NJA 2005 p.805), acquitted the defendant, considering that his conviction would be contrary to the Convention.4.

In comparative constitutional law terms, the Swedish pastor's sermon case would be based on the notion of a captive audience.5.

A captive audience is one that finds itself in an inescapable situation and is bombarded with information that is offensive to some of the members of that audience. If a church audience is in that sense captive because an individual cannot escape being subjected to a verbal assault, then in the case of a school audience, where leaflets were distributed — as we do emphasise in § 56 — in the young people's lockers, that is certainly a decisive consideration. A church is in essence a public place accessible to everybody. School grounds, on the other hand, are more protected and are in this sense a non-public place, requiring an intrusion in order to distribute any information of whatever kind that has not been previously approved by the school's authorities. Coming back to the Supreme Court of the United States, it has held that ‘the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behaviour’.6.

Admittedly high-school grounds may not be seen primarily as the setting for a captive audience in the same sense as in the pastor's sermon case, yet they are definitely a protected setting where only those authorised to distribute any kind of information may do so. This is the key difference between the pastor's sermon case of the Swedish Supreme Court and the case before us and this is why I maintain that I would be in perfect agreement with the judgment were it based solely (or at least predominantly) on the considerations contained in paragraph 56 of the judgment.

For my controversial concurring opinion in von Hannover v. Germany, I have been repeatedly attacked for the phrase mentioning the fetishisation of the freedom of the press under American influence.7. Recent events in the United Kingdom, where serious abuses on the part of the Murdoch press have been uncovered, tend to vindicate the position taken in the von Hannover case.

Nevertheless, we seem to go too far in the present case — on the grounds of proportionality and considerations of hate speech — in limiting freedom of speech by over-estimating the importance of what is being said. In other words, if exactly the same words and phrases were to be used in public newspapers such as Svenska Dagbladet, they would probably not be considered as a matter for criminal prosecution and condemnation.

I have no difficulties in finding that Article 10 was not violated.

However, I regret that the Court missed an opportunity to ‘consolidate an approach to hate speech’ against homosexuals, as commented by the third-party intervener. Further, it was recognised that ‘although the Court has not yet dealt with this aspect, homophobic speech also falls into what can be considered as a category of ‘hate speech’1., which is not protected by Article 10’.

Although there is no agreed definition of hate speech in international law, the Committee of Ministers of the Council of Europe was very clear in its Recommendation No. R (97) 20: the term ‘hate speech’ is to be

In the present case the applicants described homosexuality as a ‘deviant sexual proclivity’ and accused homosexuals of having a ‘morally destructive effect on the substance of society’ and being the main reason for the spread of HIV and AIDS. To my mind, such accusations clearly match the above definition.

Yet in paragraph 54 the majority affirm that statements which do not ‘directly recommend individuals to commit hateful acts’, can be described as ‘serious and prejudicial allegations’, not as hate speech.

This appears to be the American approach, where hate speech is protected until it threatens to give rise to imminent violence. This is a very high threshold, and for many well-known political and historical reasons today's Europe cannot afford the luxury of such a vision of the paramount value of free speech.

Obviously, as the Court has often emphasised, ‘freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment’ (see, among many other authorities, Rekvényi v. Hungary [GC], no. 25390/94, § 42, ECHR 1999-III). Nevertheless, the Court has also held that ‘abuse of freedom of expression is incompatible with democracy and human rights and infringes the rights of others’ (see Witzsch v. Germany (dec.), no. 4785/03, 13 December 2005).

I do not think that accusations that homosexuals are deviants and responsible for the spread of HIV and AIDS are in harmony with the Convention's values. There is a fine line between verbal abuse and incitement to violence, and such accusations are capable of prompting aggression against them. Although the majority give weight in paragraph 54 to the applicants' intention to start ‘a debate about the lack of objectivity of education in Swedish schools’, it is hard to see the wording of the leaflets simply as starting a debate on an issue concerning a matter of public interest; it appears rather that the applicants wanted to disseminate their views among teenagers, who are vulnerable to different kinds of influence.

The majority found that the applicants' conviction in the present case served a legitimate aim, namely ‘the protection of the reputation and the rights of others’. As a matter of fact, cases like the present one should not be viewed merely as a balancing exercise between the applicants' freedom of speech and the targeted group's right to protect their reputation. Hate speech is destructive for democratic society as a whole, since ‘prejudicial messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups’,2. and therefore it should not be protected.

In the case of Norwood v. the United Kingdom, although in what was perhaps a more serious context3., the Court found that ‘a general, vehement attack against a … group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination’ and thus fell outside the protection of Article 10. Linking the whole group in the present case to the ‘plague of the twentieth century’ should not be granted the protection of Article 10 either.

Our tragic experience in the last century demonstrates that racist and extremist opinions can bring much more harm than restrictions on freedom of expression. Statistics on hate crimes show that hate propaganda always inflicts harm, be it immediate or potential. It is not necessary to wait until hate speech becomes a real and imminent danger for democratic society.

In the words of the prominent US constitutionalist Alexander Bickel: