See the original Press Release from ARTICLE 19 here
On 14 January 2022, Professor David Kaye and the organizations ARTICLE 19, and nd the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), submitted a third-party intervention to the European Court of Human Rights. The case concerns “warning label” on a fairy tales book depicting same-sex couples. The Interveners believe that the case raises serious questions about whether freedom of expression of creators of artistic work can be restricted through labeling of their creative work, especially if the warnings are based on sexual orientation and gender identity.
The Applicant in the case Macaté v. Lithuania, an openly lesbian children’s author, wrote a book of six fairy-tale retellings that include characters from “various marginalised groups, including ethnic minorities and persons with disabilities. Out of the six fairy tales, two depicted love between people of the same sex.” The book was published by the Lithuanian University of Education. Following some outcry against the book, in 2014, the University stopped the distribution of the book. The distribution was later renewed but the book was marked with a warning that it “might have a negative effect on persons below the age of fourteen”. The University invoked the Lithuanian law on the protection of minors which stipulates that any information expressing contempt for family values or promoting a vision of marriage and the creation of a family different from that enshrined in the Constitution or the Civil Code was considered harmful to minors.
Last year, the Chamber of the European Court of Human Rights relinquished jurisdiction in favour of the Grand Chamber, the highest judicial section of the Court.
IJC students, supervised by Professor David Kaye and Digital Rights Fellow Sofia Jaramillo, assisted in the preparation of the amicus curiae demonstrating that the protection of children and public morals is often used as a pretext for discrimination against members of the LGBT community and as justification for restrictions on freedom of speech. The interveners also highlight the following points:
- Labels and “warnings” on artistic work must comply with international human rights standards to avoid discrimination: Labels that carry such discriminatory warnings inadvertently cast a negative light on the publication as libraries or bookshops may think twice before stocking it. Some labels that carry a “harmful” warning may indeed be found appropriate if a work contains explicit depictions of violence for example but this decision must always be carried out with extreme care and scrutiny. States and private entities should not use such discriminatory labels as tools to direct or construct a narrative against LGBTI and other marginalised communities to keep deep-rooted discrimination alive.
- The protection of children should not be used as a guise to discriminate and censor others: We especially warn that although many attempts to “protect children from harmful content” are actually used to justify discrimination and censorship. information of public interest should not be limited or banned simply because it risks being accessed by a child. There is no evidence that the dissemination of information advocating a positive attitude towards LGBTI people would adversely affect children.
- Warning labels based on the presence of LGBT content constitute a discriminatory purpose: Restricting freedom of expression on the grounds of “traditional values” is directly linked to discrimination of LGBT communities. When governments add labels and warnings to content by and about LGBT people, they contribute to exclusionary policies incompatible with human rights norms. States should refrain from such labels as they contribute to the discrimination and alienation of LGBT people from society.
This case shows that States and private entities are still contributing to the discrimination of the LGBT community which in turn limits their right to freedom of expression. Instead, States should ensure that all groups in society should be able to exercise the right to freedom of expression. They should be also promoting diverse storytelling and not limiting it on discriminatory grounds.