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Norway: Supreme Court Rules on Boundaries of Hate Speech

(Aug. 7, 2018) On April 12, 2018, the Norwegian Supreme Court issued a judgment under which a person was sentenced to prison for hate speech. (Norges Høyesterett [Norwegian Supreme Court] Dom [Case No.] HR-2018-674-A, Lovdata website; HR-2018-674-A, Supreme Court website.) The Court found that the man, who on August 15, 2015, had repeatedly called another man of Somali descent “*expletive* darky [jaevla svarting]” and “*expletive* negro” (jaevla neger)” had violated the Norwegian provision on hate speech. (NORWEGIAN PENAL CODE, 135a Straffeloven LOV-1902-05-22-10.)

The Penal Code criminalizes hate speech, specifically stating in section 135a that

[a] person who willfully or through gross negligence publicly utters a discriminatory or hateful expression is punishable by fines or imprisonment of up to three years. The use of symbols also counts as an expression. Aiding and abetting is punishable in the same way.

[“]Discriminatory or hateful expression[”] means to threaten or insult anybody, or to promote hate, persecution, or contempt for anyone because of their

  1. skin color, or national or ethnic origin,
  2. religion or faith,
  3. homosexuality, lifestyle, or sexual orientation, or
  4. disability

(§ 135a Straffeloven (translation by author).)

The Penal Code was revised in 2005, and the hate provision in section 135a of the old Code was incorporated into section 185 of the 2005 Penal Code. (NORWEGIAN PENAL CODE, as revised in 2005, § 185, Lovdata website.) Thus, although the crime was committed while the old Code was in force, the precedent of the old Code applies in interpreting the provision in the current Code.

Background

The hate speech occurred after a fight broke out between the two men around 2:30 a.m. in the town of Halden, during which the defendant pushed the Somali man, who retaliated by throwing a baked potato that struck the defendant in the back of his head. (HR-2018-674-A, ¶ 9.) The defendant claimed that his comment was not related to the victim’s skin color or race but should be seen as any other kind of curse word unrelated to the man’s ethnicity. The Supreme Court rejected this argument. (Id. ¶ 13.) The Court also determined that the speech qualified as hate speech according to the provision in the Code because it had clearly been made in public (Id. ¶ 11.)

In a previous case the Court had found that calling a security guard a similar name to that used in the current case was illegal. The Court in that decision noted that the security guard had not in any way provoked the defendant and that security guards as a group were in need of special protection. (Id. ¶ 19.) In this case, the Court likewise found that the comment was clearly derogatory and meant to show disrespect on the basis of color, as specified in section 135a of the Code. But the Court also needed to determine whether “the comment nevertheless is free from punishment because of the [heated] situation under which it was made.” (Id. ¶ 18.) The Court found that it was not. (Id. ¶ 20.)

The verdict clarifies the boundaries of free speech versus hate speech in Norway and makes it clear that terms such as “negro” or “darky” are criminalized no matter in what circumstances they are uttered. The fact that a person of color starts the altercation or escalates a conflict cannot be used as a defense. (Id. ¶ 21.) Thus, under Norwegian law, a person is always protected from derogatory and discriminatory comments based on skin color, ethnicity, sexuality, or disability, even when such comments arise during an argument or fight.