The ECtHR dealt with homophobic online hate speech in the case Beizaras and Levickas v. Lithuania of 14 January 2020. The decision is a crucial contribution to the legal debate on pluralism, freedom of expression and protection from hate speech on virtual platforms. The case involved hate speech against homosexual people on Facebook. The applicants lodged an application to the ECtHR complaining about the violation of their right to private and family life (Article 8) in conjunction with the prohibition of discrimination (Article 14), as well as the right to an effective remedy (Article 13). The first applicant posted on its Facebook page a photograph of a kiss between him and his partner, the second applicant. The picture went viral, having received more than 2,400 ‘likes’ and 800 comments. Thirty-one of these comments were hateful and targeted the couple in particular and LGBT people in general. Among these, ‘it’s not only the Jews that Hitler should have burned’, or ‘faggots’ should have ‘their heads smash[ed]’ (paragraph 10).

Domestic authorities did not respond effectively to the applicants’ complaint (lodged by the LGL Association). First, the district court’s prosecutor did not consider it necessary to start pre-trial investigations, claiming that, although the behaviour of the authors of the comments was ‘unethical’ and ‘immoral’, it did not constitute an element of a crime under the Lithuanian Criminal Code. The district court considered that the picture of two men kissing did not contribute to social cohesion and the promotion of tolerance, highlighting that those comments did not incite discrimination. The regional court dismissed the appeal.

 

The ECtHR found a breach of the prohibition of discrimination on the ground of sexual orientation in the context of private life (Article 8 and Article 14). The Court also identified discriminatory attitudes at the core of the failure of the domestic authorities to discharge their positive obligation to investigate the applicants’ complaint, amounting to a violation of the right to an effective remedy (Article 13). Stressing that ‘pluralism and democracy are built on the genuine recognition of, and respect for, diversity’ (paragraph 107), the ECtHR concluded that deterrence against discriminatory verbal assaults and threats, directed against a person’s physical or mental integrity, requires efficient criminal-law mechanisms.

 

(Comment by Giovanna Gilleri)