Hate speech against sexual minorities

Hate speech against sexual minorities has become a pressing issue for the European Court of Human Rights (ECtHR or the Court). Online media and social platforms boosted the possibilities one has to express personal opinions and hateful comments, thus leaving the Strasbourg Court with the task of drawing the line of the protection afforded by the European Convention on Human Rights (ECHR of the Convention). The scope of the right to freedom of expression (Article 10 of the ECHR) is wide and the Court has constantly emphasized that the Convention protects various ideas, regardless of their power to “offend, shock or disturb”. Nevertheless, freedom of expression is a right that comes with “duties and responsibilities”, especially when such expressions conflict with “the rights of others” (Article 10 para.2). The case analyzed here, the decision in Beizaras and Levickas v. Lithuania of January 14th 2020[1], provides an example of the Court’s clear disapproval of discriminatory behavior based on sexual orientation and gender identity and consistent exclusion of homophobic hate speech from the scope of Article 10.


The Circumstances of the Case
The applicants, Pijus Beizaras and Mangridas Levickas are Lithuanian nationals and are in a same-sex relationship. In December 2014, Mr Beizaras posted a photograph of them kissing on his Facebook page. The photograph that was supposed to announce the beginning of their relationship went “viral”, receiving hundreds of comments in Lithuania. The comments mostly included calls for the applicants to be “castrated”, “killed”, “exterminated” and “burned” because of their homosexuality.[2]
Fearing retaliation, the applicants turned to the Lithuanian Gay League (LGL)[3], of which they were both members, asking it to act on their behalf, that is, to inform the Public Prosecutor’s Office about the hateful comments and request that it initiate criminal proceedings for incitement to hatred and violence against homosexuals. A few days later, LGL did just that.[4]
The prosecutor decided, however, not to initiate a pre-trial investigation regarding the complaint (for incitement to hatred and violence against homosexuals). He considered that the authors of the comments had merely been “expressing their opinion” and that, although they had reacted “unethically”, their behavior did not warrant prosecution. The prosecutor further pointed out that his conclusion was in line with the Supreme Court’s practice in such cases.[5]
The domestic courts then fully endorsed the prosecutor’s stance confirming this decision on all levels. In essence, they were of the opinion that the applicants’ behavior had been “eccentric” and deliberately provocative. According to them, the applicants could have foreseen that posting a picture of two men kissing would not contribute to social cohesion and the promotion of tolerance in Lithuania, a country where “traditional family values were very much appreciated”. It would have been preferable for the applicants to share their picture with “like-minded people”, especially since Facebook gave the possibility to restrict access to just friends.[6] They strengthened the arguments against the opening of the proceedings by adding that ‘it would constitute a “waste of time and resources”, or even an unlawful restriction of the rights of others [i.e., of the internet commentators]”, but also that the “criminal proceedings constituted a last resort measure, and not all actions merited them”.[7]
Beizaras and Levickas complained before the ECtHR, whose main task was to determine whether the authorities’ refusal to launch a pre-trial investigation into the lawfulness of the comments posted on Facebook amounted to discrimination against the applicants on the grounds of sexual orientation.

Decision Overview 
The ECtHR 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 (right to respect for private and family life) and therefore Article 14 (prohibition of discrimination).[8]
The Court considered that in this situation the applicants’ homosexual orientation had played a role in the way they had been treated by the authorities. In fact, by focusing on what they considered to be the applicants’ “eccentric behavior”, the criminal courts had expressly referred to their sexual orientation in their decisions. They had even quite clearly expressed disapproval of the applicants so publicly demonstrating their sexual orientation when refusing to launch a pre-trial investigation, citing the incompatibility of “traditional family values” with social acceptance of homosexuality.[9]
The Court also pointed out straightforwardly that due to the authorities’ discriminatory attitude, the applicants had not been protected, as was their right under criminal law, from what could only be described as undisguised calls for an attack on their physical and mental integrity. He found that the hate comments had been inspired by a bigoted attitude towards the homosexual community in general and that the same discriminatory state of mind had been at the core of the failure on the part of the relevant public authorities to discharge their positive obligation to investigate in an effective manner whether those comments had constituted incitement to hatred and violence. By downgrading the danger of such comments, the authorities had at the very least tolerated them. The Court therefore found that the applicants had suffered discrimination on the grounds of their sexual orientation and the Government had not provided any justification showing that the difference in treatment had been compatible with the standards of the Convention. Accordingly, the Court held that there had been a violation of Article 14, taken in conjunction with Article 8 of the Convention.[10]
With regard to Article 13 (right to an effective remedy), the ECtHR 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 referred to the notion of ‘eccentric behavior’ again and noted with concern that the Supreme Court’s case-law emphasized the ‘eccentric behavior’ of persons belonging to sexual minorities and their duty ‘to respect the views and traditions of others’ when exercising their own rights.[11]
Moreover, reports by international bodies confirmed that there was growing intolerance towards sexual minorities in Lithuania and that the authorities lacked a comprehensive strategic approach to tackle racist and homophobic hate speech. 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.[12]

Concluding Remarks
In the case of Beizaras and Levickas v. Lithuania, the European Court of Human Rights delivered an important and well-documented judgment. The Court found that the Lithuanian authorities have violated the European Convention on Human Rights because they had not fulfilled their positive obligations to protect the targeted persons against discrimination (Article 14) and against breach of their privacy (Article 8). The Court also concluded that Lithuania has not effectively responded to the applicants’ complaints of discrimination on account of their sexual orientation, and that this amounted to a violation of Article 13 of the Convention.[13]
The Court's decision in this case about hate speech against homosexuals on Facebook was expected and based on its already existing practice.Although it does not introduce new standards, it is nevertheless of great importance because it contributes to the development of the Court's radical disapproval towards homophobic hate speech. It also highlights the coherent application of different principles of the Convention aiming at the protection of vulnerable groups from expression of hatred and intolerance.
Thus, the ECtHR builds its findings on the „positive obligation by state authorities to secure the effective enjoyment of the rights and freedoms under the Convention”, this obligation being of “particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimization”.[14]
Furthermore, the Court confirmed the important role that the Internet plays in accessing information and facilitating the dissemination of information in general, but also reiterated that those freedoms come with "duties and responsibilities." In considering the duties and responsibilities of those placing such information, the potential impact of the medium concerned is an important factor. Even the posting of a single hateful comment, let alone that such persons should be ‘killed’, is sufficient to be taken seriously.[15]
Comments that amount to hate speech and incitement to violence, and are thus clearly unlawful, may in principle require the states to take positive measures. Inciting hatred does not necessarily entail a call for an act of violence or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups can be sufficient for the authorities to limit freedom of expression exercised in an irresponsible manner.[16] According to the judgment, authorities are to combat hate speech and homophobic hate crimes by applying criminal law, considered in such cases as a justified and necessary interference with the right to freedom of expression.[17]

And finally, or perhaps initially, while the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason that might justify a difference in treatment, a broad variety of measures might be implemented by the state to pursue that aim. The state is free to decide the types of means to protect the family and to secure respect for family life. Nevertheless, it must consider changes in the perception of social, civil status and relational issues, including the fact that there is not just one way or one choice in the sphere of living one’s family or private life.[18] In any case, attitudes or stereotypes prevailing over a certain period of time among the majority of members of society may not serve as justifiable grounds for discriminating against persons solely on the basis of their sexual orientation, or for limiting the right to the protection of private life.[19]





[1] ECtHR, Beizaras and Levickas v. Lithuania, no. 41288/15, 14 January 2020; https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-200344%22]}
[2] Judgment Beizaras and Levickas v. Lithuania - online hate comments about same-sex kiss.pdf
[3] Тhe National Lesbian, Gay, Bisexual and Transgender Rights Association
[4] Paras. 16 and 17.
[5] Judgment Beizaras and Levickas v. Lithuania - online hate comments about same-sex kiss.pdf
[6] Ibid.
[7] Para. 23.
[8] Para. 117.
[9] Paras. 120 and 121.
[10] Paras. 129 and 130.
[11] Para. 152. Furthermore, although the Supreme Court had previously examined homophobic speech, it had never been as serious as in the applicants’ case and the Court had thus not had the opportunity to clarify the standards to be applied, para. 155.
[12] Paras. 155 and 156.
[13] Dirk Voorhoof, European Court of Human Rights: Beizaras and Levickas v. Lithuania, IRIS 2020-3:1/21, IRIS Merlin (coe.int)
[14] Para. 108.
[15] Para. 127.
[16] Para. 125.
[17] Voorhoof, see footnote 13. The Court acknowledged that where the acts constitute serious offences against a person’s mental or physical integrity, the criminal law shall ensure the adequate protection, para. 128.
[18] The Court recalled the growing general tendency to view relationships between same-sex couples as falling within the concept of “family life” (see Bayev and Others v. Russia, nos. 67667/09 and 2 others, § 67, 20 June 2017), para.122.
[19] Para. 125.