Lilliendahl v. Iceland, No. 29297/18, ECtHR (Second Section), 11 June 2020

No violation of the right to freedom of expression following a conviction for homophobic hate speech in comments posted underneath an online news article.

Art. 10 ECHR

1. The Court has consistently held that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. Subject to paragraph 2 of article 10, freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As enshrined in article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly.

2. ‘Hate speech’, as this concept has been construed in the Court’s case-law, falls into two categories. The first category is comprised of the gravest forms of ‘hate speech’, which the Court has considered to fall under article 17 and thus excluded entirely from the protection of article 10. The second category is comprised of ‘less grave’ forms of ‘hate speech’ which the Court has not considered to fall entirely outside the protection of article 10, but which it has considered permissible for the Contracting States to restrict.
(The Supreme Court of Iceland convicted the applicant for the defamatory and derogatory comments on homosexual people he had posted underneath an online news article reporting the municipal council’s decision to strengthen education on gender identity and sexual orientation in elementary and secondary schools. The applicant complained that his conviction had violated his freedom of expression under article 10. The Court did not find any breach the concerned provision since the interference was not excessive or unnecessary in a democratic society).