Hate speech targeting transgender people (TAS 235/2012, issued on 18 June 2013)

The Ombudsman for Equality was asked how to intervene in hate speech targeted at transgender people, which appears on the internet, for example. Hate speech is a serious social problem. It creates a threatening and hostile atmosphere in society and is offensive to people and groups that are its victims. People belonging to gender minorities are especially prone to harassment and other forms of discrimination based on gender prohibited in the Equality Act. Writing something that is improper and insulting about gender minorities online, for example, encourages discriminatory attitudes and deeds and can, in extreme cases, even lead to violence against transgender people.

In Finland, equality and freedom of speech are rights enshrined in the Constitution. The protection of freedom of speech is robust, and it can only be restricted mainly on the grounds of certain provisions in the Criminal Code, such as those relating to defamation, menace and ethnic agitation. In such cases, it is a matter for the police and the prosecution service, and ultimately a court of law will decide if an individual case involves the permitted exercise of the freedom of expression or an act contrary to the Criminal Code. The European Court of Human Rights has stated that hate speech that offends persons and groups does not merit the protection of freedom of speech.

Because of the scope of the internet, in practice it is impossible for the authorities to monitor its content. For that reason, the most effective way to intervene is by notifying a website's administrator. The Act on the Exercise of Freedom of Expression in Mass Media contains further provisions on freedom of speech in the mass media and, for example, the responsibility of discussion forum administrators and operators. The main providers of social and communal services in Finland have established codes of conduct, committing them to the provision of user-friendly solutions for reporting activity that violates the rules of a service, conditions of use and Finnish laws.

Hate speech targeted at a group of people is punishable under the Criminal Code, which prohibits ethnic agitation. Transgender and intersex people can be regarded as those in groups of people protected under this legal provision. The provision does not criminalise certain opinions or material in themselves, but the public dissemination of the opinion or material. The perpetrator of the offence of agitation can therefore be anyone and someone other than the person who originally wrote the message.

Under certain conditions, the responsibility may also lie with the website administrator, who is not responsible for producing the material but technically assisting in its dissemination. There may be criminal liability if the website administrator's attention has been drawn to the presence of illegal material on the site but the administrator all the same consciously allows the material to be kept and takes no steps to remove it. The matter may be reported to the police, especially where hate speech is obscene or ongoing.