Discrimination and hate speech on the basis of sexual orientation: is it protected by freedom of expression?

Vejdeland & Ors v Sweden [2012] ECHR 242 (9 February 2012)

Summary

The European Court of Human Rights has rejected an application brought by four Swedish nationals who were convicted under Swedish domestic law for making offensive and prejudicial comments against homosexuals. The applicants sought an order from the Court that the convictions violated their freedom of expression as protected under Article 10 of the European Convention of Human Rights. The decision constitutes the first time the Court has applied principles relating to hate speech to comments made against homosexuals.

Facts

In December 2004, the applicants distributed around one hundred leaflets to secondary school students by leaving them in or on students’ lockers. The incident ended when the school’s principal intervened and ordered the applicants to leave the premises. The leaflets alleged that Swedish schools were promoting homosexuality which they knew to be “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society.” The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS came into existence and that the “homosexual lobby” tried to play down paedophilia.

The applicants were charged and convicted under Chapter 16, Article 8 of the Swedish Penal Code. Article 8 of the Swedish Penal Code makes it an offence to “threaten or express contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin, religious beliefs or sexual orientation.” The conviction was overturned on appeal, but was ultimately upheld by the Supreme Court. Three of the applicants received suspended sentences combined with fines, whilst the fourth applicant was sentenced to probation.

The applicants appealed to the European Court of Human Rights arguing that the conviction violated their freedom of expression as protected under Article 10 of the Convention.

Decision

The Court found that the conviction of the applicants did not breach Article 10 of the Convention. The decision was unanimous, however a number of the judges delivered separate concurring opinions which were critical of the reasoning of the majority judgment and the Swedish Supreme Court.

Article 10(1) of the Convention provides that “everyone has the right to freedom of expression”. This is subject to the exception in Article 10(2), which provides that the right to freedom of expression is “subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society…for the protection of the reputation or rights of others".

It was conceded in the case that the conviction of the applicants constituted a restriction on their freedom of expression. The issue was whether such restriction could be justified on the basis of the exception in Article 10(2).

Applying previous authority, the Court determined that the test to be applied is whether the restriction on the applicants’ freedom of expression was proportionate to the legitimate aim of protecting the reputation and rights of homosexuals as a group. In finding that it was, the Court stressed that “discrimination based on sexual orientation is as serious as discrimination based on race, origin or colour.”

The Court also relied on the fact that:

• the leaflets were distributed to young people at an impressionable age and in circumstances where they had no opportunity to reject the leaflets; and
• the penalties imposed on the applicants were not excessive.

The applicants argued that the restriction on their freedom of expression was unjustified on the basis that their aim in distributing the leaflets was to start a debate about the lack of objectivity in Swedish education, not to incite hatred of homosexuals. On this point, the Court cited approvingly the reasoning of the Supreme Court which held that, despite having a legitimate aim, the applicants were under an obligation “to, as far as possible, avoid statements that are unwarrantably offensive to others.”

An interesting aspect of the case is the separate opinion delivered by Judge Spielmann (joined by Judge Nussberger). In that opinion, Judge Spielmann criticised the majority judgment as well as the reasoning of the Supreme Court for not examining more thoroughly whether the applicants’ had any underlying aim to degrade, insult or incite hatred against persons on the basis of their sexual orientation. He argued that the “unwarrantably offensive” test applied by the Supreme Court was too vague and does not accord sufficient protection to freedom of expression. Nevertheless, Judge Spielmann “very reluctantly” held that the applicants’ convictions did not contravene Article 10 in the circumstances. In this regard, the judge placed particular emphasis on the fact that the leaflets were distributed to young people who had no option to reject them, as well as the “real problem of homophobic … bullying and discrimination in educational settings.”

Relevance to the Victorian Charter

The Vejdeland case provides an important and authoritative statement from the European Court of Human Rights regarding homophobic hate speech and its interaction with freedom of expression.

The case also provides useful guidance to Victorian courts in interpreting the freedom of expression provisions in the Victorian Charter, which are similar in terms to Article 10 of the Convention. In particular, the case indicates that the factual circumstances surrounding a statement, including the audience to which it is made, can be a decisive factor in determining whether or not a restriction on freedom of expression is justified. The opinion of Judge Spielmann also indicates that courts should be cautious in deciding cases based on the “offensiveness” of the statements involved.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/242.html

Karan Raghavan is a Law Graduate with the King & Wood Mallesons Human Rights Law Group.