A Gay Kiss on the Internet: Can Strasbourg Litigation Help Win the War Against Homophobia?
On 14 January 2019, the European Court of Human Rights found a violation of the European Convention on Human Rights (ECHR) in Beizaras and Levickas v Lithuania, as a result of the Lithuanian authorities’ failure to prosecute homophobic speech targeting two young men (the applicants) who “had kissed on the Internet”.
The kiss – a photo of which had been posted by Pijus Beizaras on his publicly accessible Facebook page – generated an avalanche of “comments” on the e-platform, including insults and calls for violence. The Court considered that criminal proceedings should have been brought against the authors of certain comments, whose identity could easily be established.
According to the Court, the applicants had suffered discrimination because of their sexual orientation; the domestic judges, upholding the decision not to prosecute, had not hidden their beliefs that the applicants’ photo did not contribute to social cohesion and ought to have been shared among “like-minded people” only. This discrimination also led to the applicants being deprived of an effective remedy – something to be expected, since Lithuania’s Supreme Court has previously described a peaceful LGBT protest as “eccentric behaviour” and referred to the duty of sexual minorities to respect, while exercising their personality rights, “other’s views and traditions”.
The judgment, hailed as a victory for gay rights in Strasbourg, confirms that there is a duty under the Convention to prosecute certain forms of hate speech. Resorting to criminal proceedings should, of course, be an ultima-ratio measure. To do so, however, prosecutors do not have to show that there is “a clear and present danger” that hate speech might degenerate into violence, as they would have to do under US case law (see Brandenburg v Ohio, 395 US 444 (1969)). There was no clear and present danger of degeneration into violence in Beizaras and Levickas (see §§ 24-25 of the judgment). Beizaras and Levickas seems, therefore, to go beyond the Court’s previous case law in Karaahmed, R.B., Kiraly and Domotor, and Alkovic (cases concerning Roma and Muslims). This is a welcome development, as applying SCOTUS standards in the European context could be unduly restrictive. It is also interesting that the Chamber which decided Beizaras and Levickas appears to recognise the need for an effective remedy in respect of hate speech by private individuals (see § 152 in fine).
In our view, Beizaras and Levickas is praiseworthy, as a judgment in which the Court engages in real dialogue with other Council of Europe (CoE) mechanisms – such as the European Commission against Racism and Intolerance (ECRI), which has been dealing with homophobia in all CoE member states since 2008. The numerous references to ECRI’s work in the judgment arguably show the link between social reality and the outcomes of human-rights adjudication in various countries (though ECRI’s reports also highlight the continuing existence in CoE member states of laws that discriminate against LGBT people).
Drawing conclusions from social reality carries, of course, risks, especially for human rights bodies based outside the jurisdiction (however thorough their monitoring work may be). Beizaras and Levickas adopts in this regard a constructive, forward-looking approach. Viewing family values as the foundation of society (as many Lithuanians presumably do) is not incompatible with social acceptance of homosexuality. As acknowledged by the Constitutional Court of Lithuania itself, relations between same-sex couples fall within the concept of family life. This view, long held in Strasbourg, derives from another principle recalled in Beizaras and Levickas: sexual orientation may not on its own justify different treatment.
Same-sex couples are, nevertheless, still treated differently under several European countries’ legislation. The CoE tries to promote change in this connection. At the same time, the lack of “common ground” regarding some issues in Europe has resulted in no-violation findings by the Court in cases concerning the inability to marry or the impossibility to extend insurance cover.
Many find it natural that Strasbourg should exercise some self-restraint in this area, arguing that it is unrealistic to expect an IGO to force the hand of states in such sensitive matters. However, human rights evolve. Recent Strasbourg judgments on hate speech provide solid evidence for this – recognising, on the one hand, a duty to prosecute and, on the other, exercising a close review whenever domestic laws are applied in an overbroad manner. Moreover, cases like Delfi (on intermediaries’ liability for illegal Internet content) show how the ECtHR can play a leading role in developing international standards to meet some of our societies’ priority concerns. There is no reason why the Court cannot continue playing a similarly leading role in combating homophobia and anti-LGBT discrimination in all its forms.