CONCURRING OPINION OF JUDGE YUDKIVSKA JOINED BY JUDGE VILLIGER

1. I have no difficulties in finding that Article 10 was not violated.

2. However, I regret that the Court missed an opportunity to “consolidate an approach to hate speech” against homosexuals, as commented by the third-party intervener. Further, it was recognised that “although the Court has not yet dealt with this aspect, homophobic speech also falls into what can be considered as a category of “hate speech” [18] , which is not protected by Article 10”.

3. Although there is no agreed definition of hate speech in international law, the Committee of Ministers of the Council of Europe was very clear in its Recommendation No. R (97) 20: the term “hate speech” is to be “ understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance. ..”.

4. In the present case the applicants described homosexuality as a “deviant sexual proclivity” and accused homosexuals of having a “morally destructive effect on the substance of society” and being the main reason for the spread of HIV and AIDS. To my mind, such accusations clearly match the above definition.

5. Yet in paragraph 54 the majority affirm that statements which do not “directly recommend individuals to commit hateful acts”, can be described as “serious and prejudicial allegations”, not as hate speech.

6. This appears to be the American approach, where hate speech is protected until it threatens to give rise to imminent violence. This is a very high threshold, and for many well-known political and historical reasons today’s Europe cannot afford the luxury of such a vision of the paramount value of free speech.

7. Obviously, as the Court has often emphasised, “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment” (see, among many other authorities, Rekvényi v. Hungary [GC], no. 25390/94, § 42, ECHR 1999 ‑ III). Nevertheless, the Court has also held that “abuse of freedom of expression is incompatible with democracy and human rights and infringes the rights of others” (see Witzsch v. Germany (dec.), no. 4785/03, 13 December 2005).

8. I do not think that accusations that homosexuals are deviants and responsible for the spread of HIV and AIDS are in harmony with the Convention’s values. There is a fine line between verbal abuse and incitement to violence, and such accusations are capable of prompting aggression against them. Although the majority give weight in paragraph 54 to the applicants’ intention to start “a debate about the lack of objectivity of education in Swedish schools”, it is hard to see the wording of the leaflets simply as starting a debate on an issue concerning a matter of public interest; it appears rather that the applicants wanted to disseminate their views among teenagers, who are vulnerable to different kinds of influence.

9. The majority found that the applicants’ conviction in the present case served a legitimate aim, namely “the protection of the reputation and the rights of others”. As a matter of fact, cases like the present one should not be viewed merely as a balancing exercise between the applicants’ freedom of speech and the targeted group’s right to protect their reputation. Hate speech is destructive for democratic society as a whole, since “prejudicial messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups”, [19] and therefore it should not be protected.

10. In the case of Norwood v. the United Kingdom , although in what was perhaps a more serious context [20] , the Court found that “a general, vehement attack against a ... group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination” and thus fell outside the protection of Article 10. Linking the whole group in the present case to the “plague of the twentieth century” should not be granted the protection of Article 10 either.

11. Our tragic experience in the last century demonstrates that racist and extremist opinions can bring much more harm than restrictions on freedom of expression. Statistics on hate crimes show that hate propaganda always inflicts harm, be it immediate or potential. It is not necessary to wait until hate speech becomes a real and imminent danger for democratic society.

12. In the words of the prominent US constitutionalist Alexander Bickel: “... This sort of speech constitutes an assault. More, and equally important, it may create a climate, an environment in which conduct and actions that were not possible before become possible ... Where nothing is unspeakable, nothing is undoable.” [21]

[1] . Féret v. Belgium , no. 15615/07, 16 July 2009, Dissenting opinion of Judge András Sajó, joined by Judges Vladimiro Zagrebelsky and Nona Tsotsoria.

[2] . . Féret v. Belgium , no. 15615/07, 16 July 2009.

[3] . Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, ECHR 1999 ‑ VI.

[4] . “Nothing in [the] Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

[5] . Compare this case with Alekseyev v. Russia , concerning a repeated unjustified ban on Gay-Rights Marches in Moscow (nos. 4916/07, 25924/08 and 14599/09, 21 October 2010), where the Court held:

“ 86. … [t]here is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or “vulnerable adults”. On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard, including the individuals concerned … . ” In that case, the Government had relied on the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which guaranteed individuals respect for and protection of their religious and moral beliefs and the right to bring up their children in accordance with them.

[6] . . Handyside v. the United Kingdom , 7 December 1976, Series A no. 24.

[7] . § 49.

[8] . Also apparently in Sweden, as highlighted in paragraph 19 of the judgment:

“ Agitation against homosexuals as a group was made a criminal offence by an amendment of the law that came into effect on 1 January 2003. According to the preparatory work on that amendment, as reproduced in Government Bill 2001/02:59 (pp. 32-33), homosexuals constitute an exposed group which is often subjected to criminal acts because of their sexual orientation, and national socialist and other racist groups agitate against homosexuals and homosexuality as part of their propaganda. The preparatory work also stated that there were good reasons to assume that the homophobic attitude that had caused certain perpetrators to attack individuals on account of their sexual orientation derived from the hate, threat and inflammatory propaganda against homosexuals as a group that was spread by the majority of the Nazi and other right-wing extremist groups in the country .”

[9] . “…6. Member States should take appropriate measures to combat all forms of expression, including in the media and on the Internet, which may be reasonably understood as likely to produce the effect of inciting, spreading or promoting hatred or other forms of discrimination against lesbian, gay, bisexual and transgender persons. Such “hate speech” should be prohibited and publicly disavowed whenever it occurs. All measures should respect the fundamental right to freedom of expression in accordance with Article 10 of the Convention and the case-law of the Court . ” (emphasis added)

[10] . See the very recent report of Human Rights Commissioner Thomas Hammarberg, Discrimination on grounds of sexual orientation and gender identity in Europe , Strasbourg, Council of Europe, 2011, pp. 114 et seq., with extended research material.

[11] . Citing Rankin v. McPherson, 483 U.S. 378, 387, pp. 5-7.

[12] . Citing Connick v. Myers, 461 U.S. 138, 145 and 146.

[13] . R.A.V. v. St. Paul , 505 U.S. 377 (1992).

[14] . See the extract from the Supreme Court judgment in § 15 in fine.

[15] . The notion has been developed in Rowan v. Post Office Dept ., 397 U.S. 728, 736-738, and in Frisby and Schultz 487 U.S. 474, at 484-485.

[16] . Bethel School District v. Fraser , 478 U.S. 675 (1986).

[17] . Von Hannover v. Germany , no. 59320/00, ECHR 2004 ‑ VI.

[18] . See “Manual on Hate Speech” (2009) by Anne Weber, Council of Europe Publishing

[19] . Judgment of the Supreme Court of Canada in the case of R. v. Keegstra , [1990] 3 S.C.R. 697

[20] . . Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004 ‑ XI. In this case the applicant was convicted for displaying in his window a poster with a photograph of the Twin Towers in flame and the words “Islam out of Britain – Protect the British People”.

[21] . Alexander M. Bickel, Domesticated Civil Disobedience: The First Amendment, from Sullivan to the Pentagon Papers, in THE MORALITY OF CONSENT 72-73 (1975).