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23 January 2023

Law academic wins landmark case on freedom of expression

Professor Robert Wintemute, from The Dickson Poon School of Law, argued that the Lithuanian Government’s decision to halt distribution of, then put warning labels on, a children’s book with two fairy tales featuring same-sex couples was a violation of the author’s freedom of expression.

An open book.

The case concerned the children’s book Amber Heart (Gintarinė širdis). Soon after its publication in 2013, the Lithuanian government halted distribution of the book, warning of the negative effects of the stories about a princess falling in love with a woman and a prince falling in love with a man.

Today, the Grand Chamber of the European Court of Human Rights delivered its judgment, with the 17 judges unanimous in their decision that the Lithuanian authorities’ actions constituted a violation of Article 10 of the European Convention on Human Rights.

Britain’s notorious Section 28 (1988-2003, no teaching of ‘the acceptability of homosexuality as a pretended family relationship’) never went to the Court, so it was important to challenge one of the copycat versions in Eastern Europe. Lithuania’s 2009 law deems information harmful to minors if it ‘expresses contempt for family values, [or] encourages a different concept of marriage and creation of family from the [opposite-sex] one enshrined in the Constitution and the Civil Code’. Today’s strong and clear Grand Chamber judgment requires changes to Lithuania’s law, provides a basis for challenging similar laws in Azerbaijan, Hungary and Latvia (Russia’s law was condemned in 2017), and should discourage new legislation against information about same-sex relationships in other Council of Europe member states.

Professor Robert Wintemute, Professor of Human Rights Law

The Court noted that: “where restrictions on children’s [or adults’] access to information about same-sex relationships are based solely on considerations of sexual orientation … they do not pursue any aims that can be accepted as legitimate for the purposes of … the (European) Convention (on Human Rights).” It is unusual for the Court to find that a government’s measures did not pursue any legitimate aim.

The Court found that the Lithuanian Government had intended to limit access to the two stories because they presented same-sex and different-sex relationships as of equal value.

Professor Wintemute represented the mother of the author, Neringa Dangvydė Macatė, who died in March 2020, at the Grand Chamber hearing on 23 March 2022.

This was the first case in which the European Court of Human Rights had assessed restrictions on literature about same-sex relationships written specifically for children.

In its press release, the ECtHR notes: “The Court rejected the Government’s argument that they had sought to protect children from sexually explicit information. It could not see how certain passages – a princess and a shoemaker’s daughter sleeping in one another’s arms after their wedding – depicted carnal love. Nor did it find convincing the Government’s submission that the fairy tales had been seeking to “insult”, “degrade” or “belittle” different-sex relationships and “promote families of the same sex”. The Court could not see any such aim in the applicant’s writings which, to the contrary, advocated respect for and acceptance of all members of a given society in a fundamental aspect of their lives, namely a committed relationship.”

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Robert  Wintemute

Professor of Human Rights Law