The Strasbourg Court extends the definition of 'homophobic hate speech'

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The European Court of Human Rights has ruled that the refusal of the prosecutor's office to press charges against the authors of harsh comments under the photo of a couple of LGBT activists constitutes discrimination and infringement of the right of persons in homosexual cohabitation to have their private and family life respected. It has thus illegally extended the current definition of the term "hate speech". The activists admitted that their photograph was provocative.

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The case concerned two activists of Lietuvos Gėjų Lyga (LGL), Lithuanian LGBT organisation. The photo they posted on Facebook attracted numerous comments criticising both the LGBT movement and people promoting a homosexual lifestyle. Some of the entries were of offensive nature. Accordingly, the organisation reported a crime of incitement to violence and hate to the Prosecutor General's Office. The Prosecutor's Office refused to launch an investigation, claiming that although the conduct of the authors of some of the comments was immoral, it was not of a criminal nature, given that the internet users solely expressed their opinion about people leading a homosexual lifestyle with no intention of inciting violence or hatred. The decision of the prosecutor's office was upheld by the courts, which emphasised that the activists deliberately posted their photo as public, addressing it not only to their like-minded friends, but to the Facebook community. In the opinion of the courts, the publication of the provocative photo could have been viewed as "a deliberate attempt to vex audiences with different views". As both men later admitted, the goal of making their photo public and disseminating it was to "provoke a discussion on gay rights in Lithuania".

The European Court of Human Rights did not share the stance of Lithuanian courts. The ECHR stated that exercising freedom of speech "in an irresponsible manner", as exemplified by the "homophobic hate speech", may require the state to pursue specific actions for the criticised social group, by way of illustration in the form of criminal sanctions. In the Court's opinion, "homophobic hate speech" should be construed as not only inciting physical aggression against individuals engaged in a homosexual lifestyle, but also statements that adversely impact their "psychological well-being". The ECHR mentioned that the State should prosecute people suspected of 'homophobic hate speech' even when most of the population adheres to traditional values that consider the relationship between a man and a woman as the foundation of the family. In the Court's view, traditional values are a "stereotype" that cannot justify discrimination on the basis of sexual orientation.

"The recent judgment of the Strasbourg Court in this case is in line with the trend towards a broad interpretation of the notion of hate speech, which is more and more often viewed as not only incitement to violence, but also statements that give rise to mental discomfort among representatives of LGBT subcultures. Although statements directly calling for assassination or physical aggression against anyone, including people with homosexual tendencies, must be condemned, it should be emphasized that criticizing a homosexual lifestyle, even in a determined way, should come within the limits of freedom of speech. In the valid 1976 judgment, the Court said that the Convention also protects such statements, which are offensive, shocking or disturbing to the addressees – noted Karolina Pawłowska, Director of the International Law Centre of the Ordo Iuris Institute.

Beizaras and Levickas v. Lithuania, ECHR judgment of 14 January 2020.