Beizaras and Levickas v. Lithuania, No. 41288/15, ECtHR (Second Section), 14 January 2020

Hate speech on the internet with discriminatory content against homosexual people. Violation of right to an effective remedy.

Art. 8 ECHR
Art. 13 ECHR
Art. 14 ECHR

1. 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.

2. The Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. At the same time, 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.

3. 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. 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.
(One of the two applicants posted on his Facebook page a photograph of him kissing his partner, which received numerous ‘likes’ and comments, among which thirty-one insulting and homophobic comments. The domestic prosecutor refused to initiate pre-trial investigations, then the domestic courts did not respond to the applicants’ complaints of discrimination. The ECtHR identified that the conduct constituted discrimination on the ground of sexual orientation amounting to a breach of the right to private and family life, under article 14 in conjunction with article 8. It also found a violation of the right to effective remedy under article 13, given the state authorities’ failure to fulfill their positive obligation to secure the enjoyment of rights as set out in the ECHR by refusing to effectively respond to the complaints)