13 Jan Homophobic hate speech on social networks

In the case of Beizaras and Levickas v. Lithuania (application no. 41288/15, 14.01.2020) the European Court of Human Rights held, unanimously, that there had been a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, taken in conjunction with Article 8 (right to respect for private and family life), and a violation of Article 13 (right to an effective remedy). 

The case raised questions about the State’s responsibility to protect individuals from homophobic hate speech. The applicants are two young men who are in a relationship. One of the applicants posted a photograph of them kissing on his Facebook page, which led to hundreds of online hate comments. Some were about LGBT people in general, while others personally threatened the applicants. Both the prosecuting authorities and the courts refused to launch a pre-trial investigation for incitement to hatred and violence against homosexuals, finding that the couple’s behaviour had been provocative and that the comments, although “unethical”, did not merit prosecution. 

The Court found it clear that the comments on Mr Beizaras’s Facebook page had affected the applicants’ psychological well-being and dignity, bringing the case within the scope of Article 8 and therefore Article 14.

The Government denied that the applicants had been discriminated against, arguing that the domestic authorities’ decisions not to start a criminal investigation had had nothing to do with their sexual orientation. It argued in particular that the decisions had been based on the applicants’ behaviour, which had been provocative, because of a cross woven into the second applicant’s jumper and on the fact that the comments in question had not reached a level so as to be considered criminal.

The Court found in particular that the applicants’ sexual orientation had played a role in the way they had been treated by the authorities, which had quite clearly expressed disapproval of them so publicly demonstrating their homosexuality when refusing to launch a pre-trial investigation. Such a discriminatory attitude had meant that the applicants had not been protected, as was their right under the criminal law, from undisguised calls for an attack on their physical and mental integrity.

Accordingly, the Court held that there had been a violation of Article 14, taken in conjunction with Article 8 of the Convention.

The Court found that the Lithuanian Supreme Court’s case law as applied by the prosecutor, whose decision had then been upheld by the domestic courts, had not provided for an effective domestic remedy for homophobic discrimination complaints. In particular, the Court noted with concern that the Supreme Court’s case-law emphasised the “eccentric behaviour” of persons belonging to sexual minorities and their duty “to respect the views and traditions of others” when exercising their own rights. The Court therefore found that there had also been a violation of Article 13 of the Convention because the applicants had been denied an effective domestic remedy for their complaints about a breach of their private life owing to discrimination on account of their sexual orientation.

References from the official website of the European Court of Human Rights