Lithuania must investigate online homophobic hate speech

In its first judgment to directly consider the issue, the European Court of Human Rights (ECtHR) has held that the State authorities’ failure to investigate online hate speech against a gay couple violated the couple’s rights to private and family life and constituted discrimination on sexual orientation grounds under the European Convention on Human Rights. [ECtHR Press Release] In the case of Beizaras and Levickas v. Lithuania, a same-sex couple posted a photo on Facebook of them kissing, and other individuals posted hundreds of homophobic comments in response, including threats of violence. See ECtHR, Beizaras and Levickas v. Lithuania, no. 41288/15, Judgment of 14 January 2020, paras. 6-11. The Court found that State authorities had refused to launch a pre-trial investigation, even though they were aware of the hate comments, in part due to their expressed disapproval of the applicants’ sexual orientation. See id. at paras. 16-23, 121. The Court held that the State failed to meet its positive obligation to investigate hate speech that could incite violence, resulting in harm to the applicants’ “psychological well-being and dignity” and constituting a violation of their rights to private life and non-discrimination. See id. at paras. 113, 117, 129. Because the Lithuanian authorities had routinely failed to address increasing homophobic hate speech, the Court also found a violation of the applicants’ right to an effective domestic remedy (Article 13). See id. at paras. 151-56. The Court’s judgment advances protections for LGBTI individuals, and has been perceived as a victory by LGBTI rights activists. [ILGA-Europe]

Summary of the Facts
The applicants, two Lithuanian men in a relationship, alleged that they were discriminated against on the grounds of sexual orientation when the Lithuanian authorities refused to begin a pre-trial investigation into comments published on Facebook that threatened them specifically, and expressed hatred towards LGBT people in general. See ECtHR, Beizaras and Levickas v. Lithuania, Judgment of 14 January 2020. The applicants, via the National Lesbian, Gay, Bisexual and Transgender Rights Association (LGL Association), first complained about the comments to the State prosecutor in December 2014. See id. at paras. 7, 16-17. The prosecutor examined the photo and the comments, but decided no investigation was necessary because the comments were merely opinions and not possible crimes (although domestic law criminalizes homophobic hate speech). See id. at para. 18. The LGL Association appealed the prosecutor’s decision, but the national courts agreed with the prosecutor that the comments were not sufficiently inciteful to constitute a criminal act under the national criminal code. See id. at paras. 19-20, 23. In particular, a Lithuanian court highlighted that the prosecutor’s decision had been reasonable in light of the fact that the applicant had made the photo public on Facebook (not limited to his friends on the social media platform), and thus should have foreseen that his “eccentric behaviour really did not contribute to the cohesion of those within society who had different views or to the promotion of tolerance.” See id. at paras. 21, 23.

The applicants lodged an application with the European Court on August 13, 2015, and the chamber of the European Court declared it admissible, rejecting the State’s argument that the applicants themselves, not the LGL Association, had to bring a complaint before national courts See id. at paras. 1, 78-83. The ECtHR chamber found that it was sufficient that the LGL Association, of which the applicants were members, brought a complaint on behalf of the applicants and represented their interests before the relevant domestic proceedings. See id. at para. 81.

Rights to Private Life and Non-Discrimination
The European Court chamber first considered whether there had been a violation of the right to non-discrimination (Article 14) taken in conjunction with the right to respect for private and family life (Article 8). See id. at paras. 109, 112-116. Given that the “offensive and vulgar” comments had an impact on the “psychological well-being and dignity” of the applicants, the ECtHR chamber considered the comments serious enough to fall within the scope of Article 8 of the European Convention. See id. at para. 117. With respect to Article 14 of the Convention, the ECtHR chamber stated that “[w]here a difference in treatment is based on sex or sexual orientation, the State’s margin of appreciation is narrow.” See id. at para. 114. In this case, the State argued that its decision not to begin a pre-trial investigation was not based on the applicants’ sexual orientation, rather it was based on the fact that the applicants “themselves wished to provoke such a reaction” and that the comments did not reach the threshold to be considered criminal. See id. at para. 118. However, the ECtHR chamber, after analyzing whether State authorities had been “motivated by a discriminatory attitude and stereotypes related to sexual orientation” when reaching the conclusion to not conduct a criminal investigation, found that the applicants’ sexual orientation had played a role in the State authorities’ decision. See id. at paras. 124, 129.

The ECtHR chamber first highlighted that “comments that amount to hate speech and incitement to violence…may require the States to take certain positive measures.” See id. at para. 125. Here, Lithuanian authorities failed to provide “weighty arguments” to counter the applicants’ allegation that the comments on the Facebook post amounted to incitement of hatred and violence, particularly given that Lithuanian authorities had previously treated similar attacks on other groups, such as Jews, as criminal. See id. Moreover, the ECtHR chamber rejected the State’s argument that comments on a public, popular social media website like Facebook are less harmful or dangerous than comments on other Internet news sites. See id. at paras. 98, 127. The ECtHR chamber held that “even the posting of a single hateful comment” should be taken seriously and investigated. See id. Finding that the applicants should have been protected from the “undisguised calls on attack on [their] physical and mental integrity,” as required by Article 8, the ECtHR chamber further held that the State failed to uphold its positive obligation to conduct an effective investigation into the comments because of the State authorities’ “discriminatory state of mind,” in violation of Article 14. See id. at paras. 128-130.

Right to an Effective Remedy
Separately, the chamber of the European Court analyzed whether the applicants had been deprived of an effective remedy given that their request for criminal proceedings to be initiated had been denied. See id. at paras. 134-135, 151. The ECtHR chamber held that there had been a violation of Article 13 (right to an effective remedy) of the Convention as a result of the State’s refusal to open a pre-trial investigation in this case, and its systemic failure to initiate pre-trial investigations into several other incidents of homophobic online hate speech that were requested between 2013 and 2015. See id. at paras. 135-136, 149, 155. Relying on statistics provided by the Council of Europe’s European Commission against Racism and Intolerance (ECRI) and third-party interveners to the case showing that Lithuanian authorities lacked a strategy to tackle homophobic hate speech and protect sexual minorities in Lithuania, the ECtHR chamber found that Lithuanian authorities do not treat homophobic hate speech on equal footing with hate speech targeting other groups, thus denying the applicants with an effective remedy for their complaint regarding a violation of the right to life and discrimination because of their sexual orientation. See id. at paras. 151-156.

The State has three months from the date of delivery to request that the chamber’s judgment be referred to the Grand Chamber for review.

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