Any prohibition of hate speech is an infringement on free speech. Although enshrined in section 100 of the Norwegian Constitution (NC), free speech is not absolute in Norway.
1 Section 185 of the Penal Code (PC), the so-called ‘racism clause’, covers discriminatory or hateful expressions (hate speech) made in public or in the presence of others, in a grossly negligent or deliberate way. Such expressions, which can also take the form of pictures and symbols, may involve threatening or insulting someone or inciting hatred, persecution, or contempt of someone because of their skin colour or national or ethnic origin, religion or lifestance, sexual orientation, gender identity or gender expression, or reduced functional capacity.
2 The penalty may consist in a fine and/or imprisonment. Legal sanctions only apply for the most serious violations.
3
In November 2020, a 50-year-old woman was sentenced to 36 days’ imprisonment, of which 12 were suspended, by a unanimous Supreme Court of Norway for hate speech.
4 While queuing outside a snack bar, completely unprovoked, she had said the following to a young boy of African origin: ‘Go back to Africa where you come from, bloody foreigner.’
5 This was the third time that year that the Norwegian Supreme Court had taken a stand on the boundaries of hate speech. The decision corroborated the position adopted by the Supreme Court in two decisions, dated 29 January 2020, that confirmed for the first time the legal boundaries for hateful, racist, and discriminatory speech in the context of online speech.
6 More importantly, those earlier decisions also established a new sanctioning standard, applied in the November decision.
7 This case note focuses on the January decisions.
