CONCURRING OPINION OF JUDGE SPIELMANN JOINED BY JUDGE NUSSBERGER

1. I have to confess that it is with the greatest hesitation that I voted in favour of finding no violation of Article 10 of the Convention.

2. As my colleague, Judge András Sajó, pointed out in his dissenting opinion joined to the Féret v. Belgium judgment:

“Content regulation and content-based restrictions on speech are based on the assumption that certain expressions go “against the spirit” of the Convention. But “spirits” do not offer clear standards and are open to abuse. Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression. However, it is precisely where we face ideas that we abhor or despise that we have to be most careful in our judgment, as our personal convictions can influence our ideas about what is actually dangerous.” [1]

3. In paragraph 54 of the judgment the Court elaborates its reasoning step by step, applying for the first time the principles relating to speech offensive to certain groups to speech against homosexuals.

Firstly, the reasoning endorses the position of the Swedish Supreme Court that the aim of starting a debate about the lack of objectivity of education in Swedish schools is an acceptable one.

Secondly, the Court also admits that these statements did not encourage individuals to commit hateful acts.

Thirdly, and relying on the judgment of Féret v. Belgium , [2] the Court then reiterates that inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts, and that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner.

Finally, the Court extends the findings in Féret to offensive speech directed against homosexuals.

4. The leaflets at issue undoubtedly contained statements that were totally unacceptable. However, to equate the content of the leaflets to hate speech within the meaning of our case-law needs robust justification. In my opinion, establishing this link by mere reference to the Smith and Grady precedent [3] (paragraph 55 in fine ) is not sufficient. Indeed, the offending statements should have been defined more precisely, bearing in mind that, by virtue of Article 17 of the Convention, [4] “hate speech”, in the proper meaning of the term, is not protected by Article 10. A careful, in-depth analysis of the aim of the speech would have been necessary. As already indicated, the Supreme Court considered the aim (starting a debate) as being acceptable. [5] However, the domestic courts should have examined more thoroughly whether behind the apparent aim there was any hidden agenda to degrade, insult or incite hatred against persons or a class of persons on account of their sexual orientation. In the case at hand the Supreme Court, after having admitted that the applicants’ actions had a legitimate purpose, namely starting a debate on a matter of public concern, characterised the impugned statements, not without contradiction, as being “unnecessarily offensive.” It justified the interference by acknowledging the applicant’s right to express his ideas, while at the same time stressing that freedoms and rights went hand in hand with obligations; one of which was “to avoid, as far as possible, statements that are unwarrantably offensive to others, constituting an assault on their rights” (paragraph 57 of the judgment).

5. It is submitted that this is a rather vague test which seems to me to be inconsistent with the traditional and well-established case-law of our Court going back to Handyside , [6] namely that “ Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it 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 the State or any sector of the population. ...” [7]

6. Still, I agreed, albeit very reluctantly, to find no violation because the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access (paragraph 56). Admittedly, the “place of distribution” is neither an incriminating factor, part of the actus reus , nor an aggravating circumstance in Swedish law. However, the factual circumstances of the distribution have an impact regarding the scope of the margin of appreciation in a case where, as is rightly pointed out in paragraph 58, the penalties were not excessive or disproportionate. As highlighted in paragraph 56, the leaflets were in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept the leaflets. Noting that members of the LGBT community face deeply rooted prejudices, hostility and widespread discrimination all over Europe, [8] I would like also to mention in this context the Resolution adopted by the Committee of Ministers on 21 October 2009 concerning collective complaint No. 45/2007 and containing the findings of the European Committee of Social Rights recognising that statements of a homophobic nature contribute to an atmosphere of hostility and violence against sexual minorities. Dealing with the provision of sexual and reproductive health education in schools, in its report finding a violation of Article 11 § 2 in the light of the non-discrimination clause of the European Social Charter, the European Committee of Social Rights criticised certain passages in educational materials provided by the state which said that “... [n]owadays it has become evident that homosexual relations are the main culprit for increased spreading of sexually transmitted diseases (e.g. ‘AIDS’), or ‘The disease [AIDS] has spread amongst promiscuous groups of people who often change their sexual partners. Such people are homosexuals, because of sexual contacts with numerous partners, drug addicts, because of shared use of infected drug injection equipment, and prostitutes’.” It was rightly pointed out that “these statements stigmatise homosexuals and are based upon negative, distorted, reprehensible and degrading stereotypes about the sexual behaviour of all homosexuals.” (Resolution CM/ResChS(2009)7, Collective complaint no. 45/2007 by the International Centre for the Protection of Human Rights ( INTERIGHTS ) v. Croatia ). Moreover, in Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity (31 March 2010), specific action to ensure the full enjoyment of human rights by LGBT persons is called for, albeit in accordance with the principles of Article 10 of the Convention, [9] by recognising that non-discriminatory treatment by State-actors, as well as, where appropriate, positive State measures for protection against discriminatory treatment, including by non-State actors, are fundamental components of the international system protecting human rights and fundamental freedoms.

7. It should also not been forgotten that a real problem of homophobic and transphobic bullying and discrimination in educational settings may justify a restriction of freedom of expression under paragraph 2 of Article 10. Indeed, according to studies carried out across member States and supported by some government research, LGBT students suffer from bullying from both peers and teachers. [10]

8. It is against this background that I am satisfied, on balance, that the conviction concerning the distribution at a school of leaflets containing statements directed against the homosexual community did not violate Article 10 of the Convention.