European Court of Human Rights (ECHR): In a landmark decision the Grand Chamber of ECHR condemned Lithuania for first banning a children’s fairy tale book for depicting same-sex relationships and later marking the same with a warning label stating, “not safe for children below the age of 14 years.” The Court expressed,
“The national authorities could not disregard social realities and the existence of different types of relationships in societies in which children lived; and that the mere fact that some people might find certain types of families or relationships objectionable or immoral could not justify preventing children from learning about them.”
Chronology of Events
The applicant, an openly homosexual professional writer and a specialist in children’s literature, had written a book Amber Heart (Gintarinėširdis), which contained six fairy tales. The tales depicted characters from different ethnic groups or with intel lectual disabilities and addressed issues such as stigmatisation, bullying, divorced families, and emigration with the aim of teaching children to accept those who looked or lived differently. In two of the six fairy tales, the main storylines concerned relationships and marriages between persons of the same sex.
The Lithuania Government suspended the circulation of the book on the ground that the book sought to instill in children the idea that marriage between persons of the same sex was a welcome phenomenon. Later on, it directed to mark each copy with a warning label stating that it contained information that could be harmful to children under the age of 14—failure of which was punishable by a warning or a fine—on the ground that two fairy tales which depicted same-sex couples contained information that was harmful to minors, as provided in Article 4(2)(16), the Protection of Minors from Negative Effects of Public Information Act (the Minors Protection Act).
Grievances of the Applicant
The applicant lodged a claim against the University alleging that the University’s decisions had been motivated by its hostility toward her sexual orientation and towards the positive depiction of same-sex relationships. The applicant complained that the temporary suspension of the distribution of her book and its subsequent marking with warning labels had been motivated by the fact that the book contained positive depictions of same-sex relationships and had therefore been unjustified. She relied on Article 10 (freedom of expression) and Article 14 (prohibition of discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
Domestic Court Proceedings
The Vilnius District Court dismissed the applicant’s claim holding that the University had fulfilled its obligations, arising from the contract, to publish the book and distribute a certain number of copies to public libraries, and that it had not undertaken any obligation vis-à-vis the applicant as to how the book should be distributed. The court considered that the impugned decision had not had a disproportionate effect on the applicant’s freedom of expression because the book had not been banned or removed from distribution. The Vilnius Regional Court dismissed the applicant’s appeal. Similarly, the Supreme Court refused to accept for examination the applicant’s appeal on points of law on the grounds that it did not raise any important legal questions.
The Court’s Assessment
A. Existence of an interference
The Court opined that the impugned measures amounted to an interference with the applicant’s freedom of expression, for the following reasons:
the distribution of the book was suspended for one year, during which time it was recalled from bookshops;
the applicant had intended the book to be read by nine to ten-year-old children as the book was written in a language and style which would appeal to children, and it is reasonable to assume that, by the age of 14, teenagers are in general far less interested in reading fairy tales;
Considering that similar labels are used to mark, among other things, information which is violent, sexually explicit, or promotes drug use or self-harm, the Court opined that the warning labels were likely to dissuade a significant number of parents and guardians from allowing children under the age of 14 to read the book, especially in the light of the persistence of stereotypical attitudes, prejudice, hostility, and discrimination against the LGBTI community in Lithuania.
Therefore, the Court held that the marking of the book with a warning label affected the applicant’s ability to freely impart her ideas, in particular her reputation as an established children’s author, and was liable to discourage her and other authors from publishing similar literature, thereby creating a chilling effect.
B. Lawfulness of the interference
The Government contended that the object behind the impugned measures had been twofold:
to protect children from sexually explicit content;
to protect them from content that “promoted” same-sex relationships, by presenting those relationships as superior to different-sex relationships and by “insulting”, “degrading” or “belittling” the latter.
As regards the first object, for the allegedly sexually explicit nature of one of the two fairy tales, the Government referred to the passage about the princess and the shoemaker’s daughter sleeping in each other’s arms on the night after their wedding depicted carnal love too openly for children. However, the Court rejected to accept the said passage as sexually explicit. The Court further noted that the Minors Protection Act contains several provisions that refer to information that is of an erotic nature or which encourages sexual relations Article 4(2)(4) and 4(2)(4)(15), however, those provisions were not invoked at any stage of the domestic proceedings. Hence the court denied accepting the argument that the impugned measures were taken to protect children from information that was sexually explicit.
Regarding the second object, namely protecting children from information seen as presenting same-sex relationships as superior to different-sex relationships, the Court observed that there was no reason to see the fairy tales as “encouraging” or “promoting” some types of relationships at the expense of others, rather than as seeking to foster acceptance of different types of families. The Court said,
“The book sought to encourage tolerance and acceptance of various marginalised social groups. It contained characters of diverse ethnicities, with different levels of physical and mental ability and living in various social and material circumstances, who were all depicted as caring and deserving of love.”
Therefore, the Court held that the Government’s allegation that the applicant was seeking to “insult”, “degrade” or “belittle” different-sex relationships could not find any support in the text of the book.
Same-sex Relationships & Lithuanian’s regressive approach
Noting the legislative history of Article 4(2)(16) of the Minors Protection Act—which suggests that despite the absence of explicit references to sexual orientation in that provision, the underlying legislative intent was to restrict information about same-sex relationships, the Court found:
After an unsuccessful attempt in 2006, to include information “related to encouraging homosexual relations” as harmful to children under the Minors Protection Act, several further proposals were made between 2007 and 2009 to restrict the information that “advocate[d] in favour of” or “promote[d]” homosexual, bisexual or polygamous relations;
That the main reason for removing the explicit reference to homosexual or bisexual relations was to avoid international criticism, and that the principal concern of many members of the Parliament was to find a way to include in the Minors Protection Act a provision that would have the same effect in substance, but would be formulated in a less obviously offensive way;
the final text of the amended Act, adopted in 2009, no longer contained any explicit references to homosexuality. However, the previously existing provision on the protection of family values was supplemented by a reference to “encourag[ing] a different concept of marriage and creation of family from the one enshrined in the Constitution and the Civil Code”.
The Court observed,
“Every single instance in which Article 4(2)(16) has been applied or relied on has concerned information about LGBTI-related issues, such as social advertisements or television broadcasts seeking to foster social acceptance of sexual minorities, information about gay pride events or those events themselves and the applicant’s book of fairy tales depicting same-sex relationships.”
Hence, taking account of the legislative history of the Minors Protection Act and the instances of its application, the Court opined that the intended aim of Article 4(2)(16) was to restrict children’s access to content that presented same-sex relationships as being essentially equivalent to different-sex relationships.
Resultantly, the Court concluded that the measures taken against the applicant’s book sought to limit children’s access to information depicting same-sex relationships as essentially equivalent to different-sex relationships and that those measures did not pursue a legitimate aim under Article 10(2) of the Convention and were in violation of Article 10 of the Convention.
“Equal and mutual respect for persons of different sexual orientations is inherent in the whole fabric of the Convention. It follows that insulting, degrading or belittling persons on account of their sexual orientation, or promoting one type of family at the expense of another is never acceptable under the Convention.”
However, regarding the applicant’s claim that she had suffered discrimination in the exercise of her right to freedom of expression because the restrictions on her book had been motivated by prejudice against sexual minorities, the Court by a majority of 12:5 held that there was no need to examine separately the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 10.
Accordingly, the applicant’s heir was awarded EUR 12,000 in respect of non-pecuniary damage and EUR 5,000 in respect of the costs and expenses.
The minority (Yudkivska, Lubarda, Guerra Martins, Zünd and Kūris, JJ.), though concurred on the question of Article 10 concerning the applicant’s right to freedom of expression; it penned a dissenting view regarding the applicability of Article 14 of the Convention taken in conjunction with Article 10. Opining that discrimination was a fundamental aspect of the case and that it should have been addressed, the minority said,
“We have no reason to doubt that the Lithuanian authorities would have applied the same restrictions to a similar book written by a heterosexual author. Even if the subjective impact of such restrictions on someone who is homosexual is greater than on someone who is heterosexual, the crucial issue, in this case, is the content of the measures.”
Therefore, having found that the measures imposed on the applicant’s book were based on its pro-LGBTI content, and in the absence of any possible justification presented by the Government, the minority concluded that the applicant suffered discrimination on the grounds of sexual orientation in the exercise of her right to freedom of expression. And therefore, her complaint under Article 14 of the Convention taken in conjunction with Article 10, should have been examined.
[Macatė v. Lithuania, Application No. 61435 of 2019, decided on 23-01-2023]
*Kamini Sharma, Editorial Assistant put this story together.