Most countries have established systems for licensing broadcast media. Issues in relation to these systems include the fairness of licensing procedures, the independence of regulatory bodies from government and commercial pressures, and broadcast media codes or restrictions on what may be broadcast.
In the following case,Ivcher Bronstein v. Peru , the applicant, a naturalised Peruvian and owner of a TV station that had broadcast various programmes denouncing grave violations of human rights and corruption, was stripped of his Peruvian nationality. Because under Peruvian law, only Peruvian citizens can own television stations, the decision to strip the applicant of his nationality effectively constituted a denial of his right as a broadcaster to continue as the owner of the station, among other things. The applicant twice appealed the decision, but he failed each time. The TV station was subsequently taken over by different owners, who modified the station’s editorial policies and refused entry to the premises to the journalists who had worked on a programme that had been particularly critical. Following a complaint to the Inter-American Commission on Human Rights, the respondent state agreed to annul the decision revoking the applicant’s citizenship. The Inter-American Court retained the right to evaluate the facts of the case. This case is also discussed under the right to property, Interference Leading to Deprivation or Affecting Enjoyment. Ivcher Bronstein v. Peru
Inter-American Court of Human Rights
Series C No: 74
Judgement of 6 February 2001
Keywords: expression - nationality - property - judicial guarantees and protection
VIOLATION OF ARTICLE 13 (FREEDOM OF THOUGHT AND EXPRESSION)
155. The European Court has emphasized that Article 10.2 of the European Convention , on freedom of expression, leaves a very reduced margin to any restriction of political discussion or discussion of matters of public interest. According to this Court,[?] the acceptable limits to criticism are broader with regard to the Government that in relation to the private citizen or even a politician. In a democratic system, the acts or omissions of the Government should be subject to rigorous examination, not only by the legislative and judicial authorities, but also by public opinion.
156. In the instant case, it has been established that, in 1997, Mr. Ivcher was the majority shareholder of the Company, which operated Peruvian television’s Channel 2; moreover, he was a Director and Chairman of the Board of this Company and was authorized to take editorial decisions on programming. In April1997, in its program Contrapunto, Channel 2 aired investigative reports of national interest, such as reports on possible torture committed by members of the Army Intelligence Service against the agent, Leonor La Rosa, the alleged assassination of the agent, Mariela Barreto Riofano, and the extremely high revenues that it was alleged that Vladimiro Montesinos Torres, adviser to the Peruvian Intelligence Service had obtained.
157. The testimonies of Luis Carlos Antonio Iberico Nu´ñez, Baruch Ivcher Bronstein and Fernando Viaña Villa demonstrated the extensive audience that Channel 2 had throughout the country in 1997. Both Mr. Ivcher and the journalists who worked for Contrapunto were fully entitled to investigate and disseminate events of public interest such as those denounced between April and July 1997 in this medium, in the exercise of the right to freedom of expression protected by Article 13 of the Convention.
158. In the same way, it has been shown that, as a consequence of the editorial line assumed by Channel 2, Mr. Ivcher was the object of threatening actions of various types. For example, after the emission of one of the reports mentioned in the previous paragraph, the Armed Forces Joint Command issued an official communiqué in which it denounced Mr. Ivcher for conducting a defamatory campaign intended to slander the Armed Forces (supra para. 76.k). Also, the same day the Armed Forces issued this communiqué, Peru’s Executive Branch issued a supreme decree regulating the Nationality Law and establishing the possibility of cancelling the nationality of naturalized Peruvians (supra para. 76.l).
159. It has also been proved that only days after Channel 2 had announced the presentation of a investigative report on the unlawful recording of the telephone conversations of opposition candidates, the Director General of the National Police Force advised that the file in which Mr. Ivcher’s nationality title was processed could not be found and, that it had not been certified that he had renounced his Israeli nationality; as a result, it was arranged to annul the said nationality title by a” directorial resolution”.
160. In view of the foregoing, on August 1, 1997, Judge Percy Escobar ordered the suspension of the exercise of Mr. Ivcher’s rights as majority shareholder and president of the Company and his appointment as a director of the Company was revoked, an extraordinary shareholders meeting was judicially convened to elect a new Board and Mr. Ivcher was prohibited from transferring his shares. Moreover, he granted the provisional administration of the Company to the minority shareholders, until a new Board was appointed, thus taking the control of Channel 2 away from Mr. Ivcher Bronstein.
161. The Court has verified that, after the minority shareholders of the Company assumed its administration, the journalists who had been working for Contrapunto were prohibited from entering the Channel and the program’s editorial line was modified [?].
162. In the context of the facts indicated above, this Court observes that the resolution that annulled Mr. Ivcher’s nationality title constituted an indirect means of restricting his freedom of expression, as well as that of the journalists who worked and conducted investigations for Contrapunto of Peruvian television’s Channel 2.
163. By separating Mr. Ivcher from the control of Channel 2 and excluding the Contrapunto journalists, the State not only restricted their right to circulate news, ideas and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society.
164. In view of the foregoing, the Court concludes that the State violated the right to freedom of expression embodied in Article 13.1 and 13.3 of the Convention, with regard to Baruch Ivcher Bronstein.
The Inter-American Court found in favour of the applicant that the resolution annulling the applicant’s nationality constituted an indirect interference not only with the applicant’s right to freedom of expression, but also with the rights of the journalists who worked and conducted investigations for the applicant’s TV station. Finally, the Court considered that by removing the applicant from the station, the state had not only restricted the applicant’s right to circulate news, ideas and opinions, but it had also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society. For these reasons, the case disclosed a violation of the right to freedom of expression.
In the following case,Otto Preminger Institut v. Austria , the applicant was a private association established in Innsbruck, whose object was to promote creativity, communication and entertainment through audio-visual media. It announced a series of films to be open to the public, including one entitled Council of Heaven. An information bulletin concerning this film was distributed to the applicant’s members, and was placed in a number of display windows. The bulletin stated that persons under 17 years old were prohibited from seeing the film, and described the film. It stated that trivial imagery and absurdities of the Christian creed would be caricatured. After the Roman Catholic Church instituted criminal proceedings against the applicant, the film was seized. In later proceedings, the film was ordered to be forfeited on the grounds that it came within the definition of the criminal offence of disparaging religious precepts.
European Court of Human Rights
Application No. 13470/87
Judgement of 20 September 1994
Keywords: expression –rights or reputations of others –public order
II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
A. Whether there have been “interferences” with the applicant association’s freedom of expression
43. Although before the Commission the Government had conceded the existence of an interference with the exercise by the applicant association of its right to freedom of expression only with respect to the seizure of the film and although the same point was made in their preliminary objection [?], before the Court it was no longer in dispute that if the preliminary objection were rejected both the seizure and the forfeiture constituted such interferences.
Such interferences will entail violation of Article 10 if they do not satisfy the requirements of paragraph 2. The Court must therefore examine in turn whether the interferences were “prescribed by law”, whether they pursued an aim that was legitimate under that paragraph and whether they were “necessary in a democratic society” for the achievement of that aim.
B. Whether the interferences were “prescribed by law”
44. The applicant association denied that the interferences were “prescribed by law”, claiming that section 188 of the Austrian Penal Code had been wrongly applied. Firstly, it was in its view doubtful whether a work of art dealing in a satirical way with persons or objects of religious veneration could ever be regarded as “disparaging or insulting”. Secondly, indignation could not be “justified” in persons who consented of their own free will to see the film or decided not to. Thirdly, the right to artistic freedom, as guaranteed by Article 17a of the Basic Law, had been given insufficient weight.
45. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply national law [?].
The Innsbruck courts had to strike a balance between the right to artistic freedom and the right to respect for religious beliefs as guaranteed by Article 14 of the Basic Law. The Court, like the Commission, finds that no grounds have been adduced before it for holding that Austrian law was wrongly applied.
C. Whether the interferences had a “legitimate aim”
46. The Government maintained that the seizure and forfeiture of the film were aimed at “the protection of the rights of others”, particularly the right to respect for one’s religious feelings, and at “the prevention of disorder”.
47. As the Court pointed out in its judgment in the case of Kokkinakis v. Greece of 25 May 1993 (Series A no. 260-A, p. 17, para. 31), freedom of thought, conscience and religion, which is safeguarded under Article 9 (art. 9) of the Convention, is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life.
Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them.
In the Kokkinakis judgment the Court held, in the context of Article 9, that a State may legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with the respect for the freedom of thought, conscience and religion of others (ibid., p. 21, para. 48). The respect for the religious feelings of believers as guaranteed in Article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society. The Convention is to be read as a whole and therefore the interpretation and application of Article 10 in the present case must be in harmony with the logic of the Convention [?].
48. The measures complained of were based on section 188 of the Austrian Penal Code, which is intended to suppress behaviour directed against objects of religious veneration that is likely to cause “justified indignation”. It follows that their purpose was to protect the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons. Considering also the terms in which the decisions of the Austrian courts were phrased, the Court accepts that the impugned measures pursued a legitimate aim under Article 10 para. 2, namely “the protection of the rights of others”.
D. Whether the seizure and the forfeiture were “necessary in a democratic society”
1. General principles
49. As the Court has consistently held, freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of everyone. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” [?].
However, as is borne out by the wording itself of Article 10 para. 2, whoever exercises the rights and
freedoms enshrined in the first paragraph of that Article undertakes “duties and responsibilities”. Amongst them - in the context of religious opinions and beliefs - may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.
This being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that any “formality”, “condition”, “restriction” or “penalty” imposed be proportionate to the legitimate aim pursued [?].
50. As in the case of “morals” it is not possible to discern throughout Europe a uniform conception of the significance of religion in society [?]; even within a single country such conceptions may vary. For that reason it is not possible to arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others. A certain margin of appreciation is therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference.
The authorities’ margin of appreciation, however, is not unlimited. It goes hand in hand with Convention supervision, the scope of which will vary according to the circumstances. In cases such as the present one, where there has been an interference with the exercise of the freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict because of the importance of the freedoms in question. The necessity for any restriction must be convincingly established [?].
2. Application of the above principles
51. The film which was seized and forfeited by judgments of the Austrian courts was based on a theatre play, but the Court is concerned only with the film production in question.
(a) The seizure
52. The Government defended the seizure of the film in view of its character as an attack on the Christian religion, especially Roman Catholicism. They maintained that the placing of the original play in the setting of its author’s trial in 1895 actually served to reinforce the anti-religious nature of the film, which ended with a violent and abusive denunciation of what was presented as Catholic morality.
Furthermore, they stressed the role of religion in the everyday life of the people of Tyrol. The proportion of Roman Catholic believers among the Austrian population as a whole was already considerable - 78% - but among Tyroleans it was as high as 87%.
Consequently, at the material time at least, there was a pressing social need for the preservation of religious peace; it had been necessary to protect public order against the film and the Innsbruck courts had not overstepped their margin of appreciation in this regard.
53. The applicant association claimed to have acted in a responsible way aimed at preventing unwarranted offence. It noted that it had planned to show the film in its cinema, which was accessible to members of the public only after a fee had been paid; furthermore, its public consisted on the whole of persons with an interest in progressive culture. Finally, pursuant to the relevant Tyrolean legislation in force, persons under seventeen years of age were not to be admitted to the film. There was therefore no real danger of anyone being exposed to objectionable material against their wishes.
The Commission agreed with this position in substance.
54. The Court notes first of all that although access to the cinema to see the film itself was subject to payment of an admission fee and an age-limit, the film was widely advertised. There was sufficient public knowledge of the subject-matter and basic contents of the film to give a clear indication of its nature; for these reasons, the proposed screening of the film must be considered to have been an expression sufficiently “public” to cause offence.
55. The issue before the Court involves weighing up the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, namely the right of the applicant association to impart to the public controversial views and, by implication, the right of interested persons to take cognisance of such views, on the one hand, and the right of other persons to proper respect for their freedom of thought, conscience and religion, on the other hand. In so doing, regard must be had to the margin of appreciation left to the national authorities, whose duty it is in a democratic society also to consider, within the limits of their jurisdiction, the interests of society as a whole.
56. The Austrian courts, ordering the seizure and subsequently the forfeiture of the film, held it to be an abusive attack on the Roman Catholic religion according to the conception of the Tyrolean public
Their judgments show that they had due regard to the freedom of artistic expression, which is guaranteed under Article 10 of the Convention [?] and for which Article 17a of the Austrian Basic Law provides specific protection. They did not consider that its merit as a work of art or as a contribution to public debate in Austrian society outweighed those features which made it essentially offensive to the general public within their jurisdiction. The trial courts, after viewing the film, noted the provocative portrayal of God the Father, the Virgin Mary and Jesus Christ [?]. The content of the film [?] cannot be said to be incapable of grounding the conclusions arrived at by the Austrian courts.
The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time. In all the circumstances of the present case, the Court does not consider that the Austrian authorities can be regarded as having overstepped their margin of appreciation in this respect.
No violation of Article 10 can therefore be found as far as the seizure is concerned.
(b) The forfeiture
57. The foregoing reasoning also applies to the forfeiture, which determined the ultimate legality of the seizure and under Austrian law was the normal sequel thereto.
Article 10 cannot be interpreted as prohibiting the forfeiture in the public interest of items whose use has lawfully been adjudged illicit [?]. Although the forfeiture made it permanently impossible to show the film anywhere in Austria, the Court considers that the means employed were not disproportionate to the legitimate aim pursued and that therefore the national authorities did not exceed their margin of appreciation in this respect.
There has accordingly been no violation of Article 10 as regards the forfeiture either.
FOR THESE REASONS, THE COURT
3. Holds, by six votes to three, that there has been no violation of Article 10 (art. 10) of the Convention as regards either the seizure or the forfeiture of the film.
Selected additional cases: Vgt Verein gegen Tierfabriken v. Switzerland , Application No. 24699/94, Judgement of 28 June 2001, Jersild v. Denmark , Application No. 15890/89, Judgement of 23 September 1994 and Murphy v. Ireland , Application No. 44179/98, Judgement of 10 July 2003.
The European Court has ruled in many cases concerning broadcasting that ‘[The right to freedom of expression] applies not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information.’ (see, i.e.Autronic v. Switzerland, , Application No. 12726/87, Judgement of 22 May 1990, para. 47). Thus not only the information but also the means used to broadcast the information have implications for the right to freedom of expression.
In the following case, the five authors complained that the Finnish Penal Code forbidding the depiction or encouragement of indecent behaviour between persons of the same sex violated their rights. The first author, a lawyer, gave a radio interview in which he alleged that job discrimination existed in Finland on the ground of sexual orientation, which was to the detriment of homosexuals. The editor was charged and acquitted under the Penal Code. Although the first author was not the subject of any criminal proceedings, he claimed that through the editor’s criminal proceedings his own right under Article 19 was curtailed. The remaining four authors prepared radio and television programmes concerning the problems faced by homosexuals. The state-controlled Finnish Broadcasting Authority censored the programmes. The authors complained that all attempts at addressing the subject in an objective manner by the broadcast media were impossible.
Hertzberg et al. v. Finland
Human Rights Committee
Communication No. 61/79
Views of 02 April 1982
Keywords: expression –homosexuality - public morals
THE COMMITTEE’S EXAMINATION OF THE MERIT
10.1 Concerning Leo Rafael Hertzberg, the Committee observes that he cannot validly claim to be a victim or a breach by the State party of his right under article 19 (2) of the Covenant. The programme in which he took part was actually broadcast in 1976. No sanctions were imposed against him. Nor has the author claimed that the programme restrictions as applied by FBC would in any way personally affect him. The sole fact that the author takes a personal interest in the dissemination of information about homosexuality does not make him a victim in the sense required by the Optional Protocol.
10.2 With regard to the two censored programmes of Mrs. Nikula and of Marko and Tuovi Putkonen, the Committee accepts the contention of the authors that their rights under article 19 (2). of the Covenant have been restricted While not every individual can be deemed to hold a right to express himself through a medium like TV, whose available time is limited, the situation may be different when a programme has been produced for transmission within the framework if a broadcasting organization with the general approval of the responsible authorities. On the other hand, article 19 (3) permits certain restrictions on the exercise of the rights protected by article 19 (2), as are provided by law and are necessary for the protection of public order or of public health or morals. In the context of the present communication, the Finnish Government has specifically invoked public morals as justifying the actions complained of. The Committee has considered whether, in order to assess the necessity of those actions, it should invite the parties to submit the full text of the censored programmes. In fact, only on the basis of these texts could it be possible to determine whether the censored programmes were mainly or exclusively made up of factual information about issues related to homosexuality.
10.3 The Committee feels, however, that the information before it is sufficient to formulate its views on the communication. It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion oust be accorded to the responsible national authorities.
10.4 The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and TV are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. According to article 19 (3), the exercise of the rights provided for in article 19 (2) carries with it special duties and responsibilities for those organs. As far as radio and TV programmes are concerned, the audience cannot be controlled, In particular, harmful effects on minors cannot be excluded.
11. Accordingly, the Human Rights Committee is of the view that there has been no violation of the rights of the authors of the communication under article 19 (2) of the Covenant.
Finland argued that the restrictions on freedom of expression were for the protection of morals. The Committee found that, since there was no universally prevailing moral standard, states parties are to be given a certain margin of discretion in matters of this nature. The Committee stated that it could not question the view of the state party that TV and radio were not appropriate fora for discussion of homosexuality, especially given that the audiences cannot be controlled and harm to minors could not be excluded.
Since this case was adopted, the Human Rights Committee has adopted views in support of homosexuals’ rights (see, i.e.Toonen v. Australia , Communication No. 488/1992, Views of 31 March 1994). Moreover, this is the only case where the Committee applies the doctrine of margin of appreciation. In later cases, the Committee has explicitly rejected the doctrine (see, i.e. Lansman v. Finland , Communication No. 511/1992, Judgement of 26 October 1994, para. 9.4).