The Ongoing Hate Speech and Freedom of Expression Debate in Norway
By: Tessa Mallett
Globally, Norway is regarded as one of the most progressive countries regarding lesbian, gay, bisexual, transgender (trans), and queer (LGBTQ) rights.[1] In 1981, Norway became one of the first to prohibit hate speech against gay people when it added “homosexual orientation” as a protected class under Section 135(a) of the Norwegian General Penal Code.[2] In November 2020, Norway’s Parliament unanimously passed a bill that expanded Section 135(a) to ban hate speech against bisexual and trans people.[3] While activists believe this will better protect the LGBTQ community, others are concerned that this will further restrain the freedom of expression of Norway citizens.
Norway’s new version of Section 135(a) is more expansive both in terms of who is protected and what type of speech can be regulated. The 1981 version of Section 135(a) is as follows:
Any person who willfully or through gross negligence publicly utters a discriminatory or hateful expression shall be liable to fines or imprisonment for a term not exceeding three years. An expression that is uttered in such a way that it is likely to reach a large number of persons shall be deemed equivalent to a publicly uttered expression[] . . . The use of symbols shall also be deemed to be an expression. . . . A discriminatory or hateful expression here means threatening or insulting anyone, or inciting hatred or persecution of or contempt for anyone because of his or her
a.) skin colour or national or ethnic origin
b.) religion or life stance, or
c.) homosexuality, lifestyle, or orientation.[4]
In contrast, the 2020 version changed “homosexual orientation” to “sexual orientation” and added “gender identity or gender expression” as a protected group.[5] Further, it penalizes individuals for hateful remarks made both in public and private.[6] Individuals found guilty for making a private mark that meets the Section 135(a) requirements “face a fine or up to a year in jail.”[7] Finally, individuals charged with committing violent crimes could face a harsher punishment if a court finds they were “motivated by a person’s sexual orientation or gender identity.”[8]
Parliament’s decision was likely in response to the steady increase in Norway of both hate speech and hate crimes reported against LGBTQ people in recent years.[9] The Institute for Social Research explained in its 2019 report that “15 percent of LGBT people have personally received threats . . . compared to four percent in the general population.”[10] Further, that same year the Oslo Police Department announced that between 2017 and 2018 there had been a 20 percent increase in documented hate crimes against LGBTQ people.[11]
Because it provides more people who are part of the LGBTQ community with legal recourse should they face discrimination, proponents of the new Section 135(a) version hope this is will be a step towards improving the lives of LGBTQ people.[12] However, some believe this new amendment goes too far and impinges on freedom of expression.[13] Opponents of the law are particularly concerned that one can be held liable for remarks made in private and contend this will result in Norwegian citizens being punished for conversations had in the privacy of their own homes.[14] They have also questioned the increase in hate crimes against LGBTQ individuals, arguing that the ever expanding definition of “hate speech” may have caused the rise in hate speech and hate crime statistics.[15]
Since Parliament approved the new Section 135(a) only a couple of months ago, currently it is unknown how it will change Norway. However, a few factors could determine how powerful Section 135(a) will be, with one being whether Norwegian police will charge individuals for violating the newly amended statute. Historically, Norwegian police have been hesitant to arrest individuals for violating Section 135(a).[16] Disturbingly, this could mean that the amount of hate speech and hate crimes committed against the LGBTQ community could be higher than reported.
Further, how Parliament defines a “private remark” will affect what speech can be regulated. During Parliament’s vote to pass the bill, it did not explain what is considered “private.”[17] While portions of the statute were published in newspaper articles, the entire law has yet to be published or incorporated into the Norwegian General Penal Code.[18]
Finally, how courts interpret Section 135(a) will determine its true strength. While the language of the statute appears to greatly protect marginalized groups, Norwegian courts have a history of weakening Section 135(a).[19] For instance, in 2000, the Boot Boys, a neo-Nazi organization, held a march commemorating the life of German Nazi leader Rudolph Hess.[20] During the event, the Boot Boys leader, Terje Sjøle, made several anti-Semitic comments and encouraged the crowd to “follow the path laid out by Hess and Hitler.”[21]
Norway police initially charged Sjøle with violating Section 135(a), but Norway’s Supreme Court later acquitted him.[22] The Court held, in this case, freedom of expression was more important than protecting individuals on the basis of race or religion.[23] Further, that “acceptance of Nazi ideology” did not automatically mean “acceptance of mass extinction or other systematic and serious acts of violence against Jews or other groups.”[24] The Court’s decision made it difficult to convict others charged with violating Section 135(a) later on.[25] At the urging of activists and public officials, in 2005 Parliament amended Section 135(a) to strengthen its language.[26]
Thus, only time will tell how these factors will affect Section 135(a) and, consequently, Norway. They may result in the statute not being as formidable as advocates hope and opponents fear. However, one this is for certain: this debate concerning hate speech and freedom of speech will only grow as countries continue to produce hate speech legislation.
#Norway #Mallet #HateSpeech #FreedomOfExpressioin #International #Law #BlogPost
Picture Credit: Human-Etiskforbund
[1] Brooke Sopelsa & Cynthia Silva, Europe’s 10 Most LGBTQ-Friendly Countries, NBC News (May 15, 2020), https://www.nbcnews.com/feature/nbc-out/europe-s-10-most-lgbtq-friendly-countries-n1207761.
[2] See Sindre Bangstad, Fighting Words: What’s Wrong with Freedom of Expression?, 40 J. of Ethnic and Migration Stud. 266, 268 (2014).
[3] Lindsey McGinnis, Points of Progress: Norway Updates Hate Speech Laws, and More, The Christian Sci. Monitor (Nov. 27, 2020), https://www.csmonitor.com/World/Progress-Watch/2020/1127/Points-of-Progress-Norway-updates-hate-speech-laws-and-more.
[4] General Civil Penal Code § 135(a) (Nor.).
[5] Rachel Savage, Norway Outlaws Hate Speech Against Trans People, Thomas Reuters Found. News (Nov. 10, 2020), https://news.trust.org/item/20201110191107-tecjt.
[6] Id.
[7] Id.
[8] Matt Moore, Norway Bans Hate Speech Against Trans and Bisexual People, Gay Times, https://www.gaytimes.co.uk/life/norway-bans-hate-speech-against-trans-and-bisexual-people/ (last visited Jan 30, 2021).
[9] Rachel Savage, supra note 5.
[10] Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans, and Intersex People in Norway Covering the Period of January to December 2019, Rainbow Europe, https://www.ilga-europe.org/sites/default/files/2020/norway.pdf (last visited Jan. 30, 2021).
[11] Hate Crimes Rate Increasing in Norway’s Oslo: Police, XinHuanNet (Mar. 30, 2019), http://www.xinhuanet.com/english/2019-03/30/c_137935031.htm.
[12] Lindsey McGinnis, supra note 3.
[13] Id.
[14] Jonathan Turley, Norway Criminalizes Hate Speech Against Transgender People . . . In Private Homes or Conversations, JonathanTurley (Nov. 29, 2020), https://jonathanturley.org/2020/11/29/norway-criminalizes-hate-people-against-transgender-people-in-private-homes-or-conversations/comment-page-2/.
[15] Madeleine Kearns, Norway’s ‘LGBTQ+ Hate Speech’ Law, Nat’l Rev. (Nov. 11, 2020), https://www.nationalreview.com/corner/norways-lgbtq-hate-speech-law/.
[16] Sindre Bangstad, supra note 2, at 278.
[17] Rachel Savage, supra note 5.
[18] Rachel Savage, supra note 5.
[19] Sindre Bangstad, supra note 2, at 272.
[20] Id. at 271.
[21] Id. at 271-72.
[22] Id. at 272.
[23] Id.
[24] Id.
[25] Id.
[26] Id. at 273.