Thursday, 17 April 2014

Freedom to express criticism of homophobia - Mladina d.d. Ljubljana v Slovenia

The European Court of Human Rights has today issued an interesting and important judgment, in Mladina d.d. Ljubljana v Slovenia, which upholds the right, under Article 10 of the Convention, to express criticism of homophobia. 

The Court was considering a complaint brought by the private company, Mladina d.d. Ljubljana, who is the publisher of the weekly magazine 'Mladina'.

The facts

In June 2005, Mladina published an article about the behaviour of certain deputies of the Slovenian National Party during a parliamentary debate on legislation to permit the registration of same-sex partnerships. 

In the article, Mladina paid attention to one deputy, B.Z, who it stated 'spouted forth all the same stupidities as at the previous reading [of the legislation] [...] and touched on the objections against his use of words such as "faggots" and "lesbians"'. 

Mladina also described the behaviour of S.P. who made statements such as 'none of us would want to have a son or a daughter who would opt for this kind of marriage’ and made 'a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot'. Mladina stated this behaviour was 'the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school'.

The Slovenian domestic courts

In response to the article, S.P. successfully took legal action against the publisher of Mladina in the domestic courts. 

S.P. argued that inter alia he had 'suffered severe mental distress due to the offensiveness of the article'.

The Ljubljana District Court, in partially upholding S.P.’s claim, stated that:

  • the use of the term 'cerebral bankrupt' had referred to S.P.'s 'personal characteristics and was therefore objectively offensive' and, as such, 'did not simply serve the purpose of imparting information to the public'; 
  • the gestures he had used to mimic the behaviour of a homosexual man were 'simply reminiscent of gestures made by actors to convey the idea of homosexuality', that this was not 'offensive to homosexuals', and was not 'aimed at promoting prejudice and intolerance against them'. 

The District Court ordered the publisher to pay damages.

Further domestic proceedings ensued, culminating in an unsuccessful complaint by the publisher to the Constitutional Court.

The European Court of Human Rights

The publisher complained that the decisions of the domestic courts had violated its right to the freedom of expression as provided in Article 10 of the Convention.

The Court decided that the decisions of the domestic courts amounted to an interference with the applicant's right to freedom of expression (this was not disputed by the applicant and the Government) and that the interference was prescribed by law.

In considering whether the interference was 'necessary in a democratic society', the Court applied its long-standing framework for determining whether the reasons adduced by the national authorities to justify the interference were 'relevant and sufficient' and whether the measure taken was 'proportionate to the legitimate aims pursued'.

The key issue for the Court was whether the reasons adduced by the domestic authorities were 'sufficient' for the purposes of satisfying the 'necessary in a democratic society' test. 

The Court held that the reasons given by the domestic courts could not be regarded as a sufficient justification for the interference with the applicant's right to freedom of expression for the following reasons:

  • describing S.P.’s conduct as that of a 'cerebral bankrupt' was extreme and could legitimately be considered offensive but the remark was a value judgment and had the character of a metaphor which, in the context of an intense debate in which opinions were expressed with little restraint, was an expression of strong disagreement, even contempt for S.P.’s position, rather than a factual assessment of his intellectual abilities; 
  • S.P., following the line of other members of his party, portrayed homosexuals as a generally undesirable sector of the population and, in order to reinforce his point, he imitated a homosexual man through the use of specific gestures which may be regarded as ridicule promoting negative stereotypes to which the publisher's remarks provided a counterpoint; 
  • the impugned statement, and the style used in the article, did not amount to a gratuitous personal attack on S.P. and, moreover, political invective often spills over into the personal sphere. 

The Court concluded that the domestic courts had not convincingly established that there was any pressing social need for placing the protection of S.P.’s reputation above the applicant's right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. 

Since the interference complained of was not 'necessary in a democratic society', the Court held that there had been a violation of Article 10 of the Convention.

Importance of the judgment

The Court's judgment is important because it establishes an effective right to robustly contest homophobic speech and gestures through public expression. 

Given that the type of homophobia addressed in the judgment is endemic in the political discourse of many Council of Europe states, it is vital that individuals and private companies are protected under Article 10 when they seek to publicly contest it. 

The judgment evolves Article 10 rights in respect of sexual orientation in a significant way by making clear that strongly formulated counter-remarks made to homophobic persons fall inside the protection offered by Article 10.

Whilst the Court's Article 10 jurisprudence relating to sexual orientation is very under-developed, this judgment can be read in relation to Vejdeland v Sweden, in which the Court placed homophobic hate speech outside the protection of Article 10. 

It remains for the Court to uphold an Article 10 complaint brought by a homosexual applicant in respect of interference with freedom of expression on the grounds of sexual orientation, but today's judgment is certainly a step in the right direction for protecting human rights and fundamental freedoms relating to sexual orientation.

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