Three of the four international human rights treaties (UN, American and European) provide a comprehensive list of the grounds upon which freedom of expression may be restricted. Under most international treaties, however, such restrictions must be provided by law, serve a legitimate aim (respect of the rights and reputations of others, protection of national security or of public order, or of public morals or health) and meet a high standard of necessity. The necessity part of the test for restrictions is the most complicated and most thoroughly litigated. It includes a variety of factors in the different international jurisdictions and it is not possible to list all of them here. Two key factors include requirements that any restriction serve a pressing social need and that the reasons for the restriction must be relevant and sufficient.
In its Advisory Opinion No. 5, the Inter-American Court elaborates upon permissible restrictions under the right to freedom of expression.
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism
Inter-American Court of human Rights
Advisory Opinion No. 5
OC-5/85, Opinion of 13 November 1985
Keywords: expression –
36. The Convention itself recognizes that freedom of thought and expression allows the imposition of certain restrictions whose legitimacy must be measured by reference to the requirements of Article 13(2). Just as the right to express and to disseminate ideas is indivisible as a concept, so too must it be recognized that the only restrictions that may be placed on the mass media are those that apply to freedom of expression. It results therefrom that in determining the legitimacy of restrictions and, hence, in judging whether the Convention has been violated, it is necessary in each case to decide whether the terms of Article 13(2) have been respected.
38. Article 13(2) of the Convention defines the means by which permissible limitations to freedom of expression may be established. It stipulates, in the first place, that prior censorship is always incompatible with the full enjoyment of the rights listed in Article 13, but for the exception provided for in subparagraph 4 dealing with public entertainments, even if the alleged purpose of such prior censorship is to prevent abuses of freedom of expression. In this area any preventive measure inevitably amounts to an infringement of the freedom guaranteed by the Convention.
39. Abuse of freedom of information thus cannot be controlled by preventive measures but only through the subsequent imposition of sanctions on those who are guilty of the abuses. But even here, in order for the imposition of such liability to be valid under the Convention, the following requirements must be met:
“a) the existence of previously established grounds for liability;
b) the express and precise definition of these grounds by law;
c) the legitimacy of the ends sought to be achieved;
d) a showing that these grounds of liability are “ necessary to ensure “ the aforementioned ends.”
All of these requirements must be complied with in order to give effect to Article 13(2).
40. Article 13(2) is very precise in specifying that the restrictions on freedom of information must be established by law and only in order to achieve the ends that the Convention itself enumerates. Because the provision deals with restrictions as that concept has been used by the Court [?], the legal definition of the liability must be express and precise.
41. Before analyzing subparagraphs (a) and (b) of Article 13(2) of the Convention, as they relate to the instant request, the Court will now consider the meaning of the expression “necessary to ensure, “ found in the same provision. To do this, the Court must take account of the object and purpose of the treaty, keeping in mind the criteria for its interpretation found in Articles 29(c) and (d, and 32(2), which read as follows:
“Article 29. Restrictions Regarding
No provision of this Convention shall be interpreted as:
c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or
d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.”
“Article 32. Relationship between Duties and Rights
2. The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.”
The Court must also take account of the Preamble of the Convention in which the signatory states reaffirm “ their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man. “
42. These articles define the context within which the restrictions permitted under Article 13(2) must be interpreted. It follows from the repeated reference to “democratic institutions”, “representative democracy” and “democratic society” that the question whether a restriction on freedom of expression imposed by a state is “necessary to ensure” one of the objectives listed in subparagraphs (a) or (b) must be judged by reference to the legitimate needs of democratic societies and institutions.
43. In relation to this point, the Court believes that it is useful to compare Article 13 of the Convention with Article 10 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms ( hereinafter “ the European Convention “ ) and with Article 19 of the International Covenant on Civil and Political Rights ( hereinafter “ the Covenant “ ), which read as follows:
“EUROPEAN CONVENTION - ARTICLE 10
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“COVENANT - ARTICLE 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order ( ordre public ), or of public health or morals.”
44. It is true that the European Convention uses the expression “ necessary in a democratic society, “ while Article 13 of theAmerican Convention omits that phrase. This difference in wording loses its significance, however, once it is recognized that the European Convention contains no clause comparable to Article 29 of the American Convention, which lays down guidelines for the interpretation of the Convention and prohibits the interpretation of any provision of the treaty “ precluding other rights and guarantees? derived from representative democracy as a form of government. “ The Court wishes to emphasize, furthermore, that Article 29(d) bars interpretations of the Convention “ excluding or limiting the effect that the American Declaration of the Rights and Duties of Man ? may have, “ which instrument is recognized as forming part of the normative system for the OAS Member States in Article 1(2) of the Commission’s Statute. Article XXVIII of the American Declaration of the Rights and Duties of Man reads as follows:
“The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy.”
The just demands of democracy must consequently guide the interpretation of the Convention and, in particular, the interpretation of those provisions that bear a critical relationship to the preservation and functioning of democratic institutions.
45. The form in which Article 13 of the American Convention is drafted differs very significantly from Article 10 of the European Convention, which is formulated in very general terms. Without the specific reference in the latter to “ necessary in a democratic society, “ it would have been extremely difficult to delimit the long list of permissible restrictions. As a matter of fact, Article 19 of the Covenant, which served, in part at least, as a model for Article 13 of the American Convention, contains a much shorter list of restrictions than does the European Convention. The Covenant, in turn, is more restrictive than the American Convention, if only because it does not expressly prohibit prior censorship.
46. It is important to note that the European Court of Human Rights, in interpreting Article 10 of the European Convention, concluded that “necessary,” while not synonymous with “indispensable,” implied “the existence of a ‘pressing social need’” and that for a restriction to be “necessary” it is not enough to show that it is “useful,” “reasonable” or “desirable.” (Eur. Court H. R., The Sunday Times Case, judgment of 26 April 1979, Series A no. 30, para. 59, pp. 35-36.) This conclusion, which is equally applicable to the American Convention, suggests that the “necessity” and, hence, the legality of restrictions imposed under Article 13(2) on freedom of expression, depend upon a showing that the restrictions are required by a compelling governmental interest. Hence if there are various options to achieve this objective, that which least restricts the right protected must be selected. Given this standard, it is not enough to demonstrate, for example, that a law performs a useful or desirable purpose; to be compatible with the Convention, the restrictions must be justified by reference to governmental objectives which, because of their importance, clearly outweigh the social need for the full enjoyment of the right Article 13 guarantees. Implicit in this standard, furthermore, is the notion that the restriction, even if justified by compelling governmental interests, must be so framed as not to limit the right protected by Article 13 more than is necessary. That is, the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it. (The Sunday Times Case, supra, para. 62, p. 38. See also Eur. Court H. R., Barthold judgment of 25 March 1985, Series A no. 90, para. 59, p. 26. )
47. Article 13(2) must also be interpreted by reference to the provisions of Article 13(3), which is most explicit in prohibiting restrictions on freedom of expression by “ indirect methods and means? tending to impede the communication and circulation of ideas and opinions. “ Neither the European Convention nor the Covenant contains a comparable clause. It is significant that Article 13(3) was placed immediately after a provision -Article 13(2)- which deals with permissible restrictions on the exercise of freedom of expression. This circumstance suggests a desire to ensure that the language of Article 13(2) not be misinterpreted in a way that would limit, except to the extent strictly necessary, the full scope of the right to freedom of expression.
48. Article 13(3) does not only deal with indirect governmental restrictions, it also expressly prohibits “ private controls “ producing the same result. This provision must be read together with the language of Article 1 of the Convention wherein the States Parties “ undertake to respect the rights and freedoms recognized (in the Convention)? and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms?. “ Hence, a violation of the Convention in this area can be the product not only of the fact that the State itself imposes restrictions of an indirect character which tend to impede “ the communication and circulation of ideas and opinions, “ but the State also has an obligation to ensure that the violation does not result from the “ private controls “ referred to in paragraph 3 of Article 13.
50. The foregoing analysis of Article 13 shows the extremely high value that the Convention places on freedom of expression. A comparison of Article 13 with the relevant provisions of the European Convention
(Article 10) and the Covenant (Article 19) indicates clearly that the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas.
Many of the international cases addressed below deal with how to balance the legitimate aim of maintaining public order, national security, public morals or the reputation of others with the importance of protecting freedom of expression.
Public order and national security
Public order is a very vague term that is often given a wide interpretation by governments to protect the public interest. National security is universally recognised as a legitimate ground for restricting freedom of expression, because it is considered that a state under threat cannot guarantee any rights to the people residing in its territory. Both concepts of public order and national security can be easily abused by governments for political reasons and are often invoked to protect the government’s elite position.
In the following case, Kim v. Republic of Korea , the author was a founding member and chair of a political organisation. At its inaugural meeting, documents critical of the government and appealing for national re-unification were distributed and read out. At the end of the meeting the author was arrested. He was tried and sentenced to two years’ imprisonment under a national security law which stated, ‘any person who assists an anti-state organisation by praising or encouraging the activities of the organisation, shall be punished’ and ‘any person who produces or distributed documents, drawings or any other materials to the benefit of an anti-state organisation shall be punished’.
Kim v. Republic of Korea
Human Rights Committee
Communication No. 574/1994
Views of 3 November 1998
Keywords: expression - national security - effective remedy
THE COMMITTEE’S EXAMINATION OF THE MERITS
12.2 The Committee observes that, in accordance with article 19 of the Covenant, any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19 (respect of the rights and reputation of others; protection of national security or of public order, or of public health or morals), and it must be necessary to achieve a legitimate purpose.
12.3 The restriction of the author’s right to freedom of expression was indeed provided by law, namely the National Security Law as it is then stood; it is clear from the courts’ decisions that in this case the author would also be likely to have been convicted if he had been tried under the law as it was amended in 1991, although this is not an issue in this case. The only question before the Committee is whether the restriction on freedom of expression, as invoked against the author, was necessary for one of the purposes set out in article 19, paragraph 3. The need for careful scrutiny by the Committee is emphasised by the broad and unspecific terms in which the offence under the National Security Law is formulated.
12.4 The Committee notes that the author was convicted for having read out and distributed printed material which were seen as coinciding with the policy statements of the DPRK (North Korea), with which country the State party was in a state of war. He was convicted by the courts on the basis of a finding that he had done this with the intention of siding with the activities of the DPRK. The Supreme Court held that the mere knowledge that the activity could be of benefit to North Korea was sufficient to establish guilt. Even taking that matter into account, the Committee has to consider whether the author’s political speech and his distribution of political documents were of a nature to attract the restriction allowed by article 19 (3) namely the protection of national security. It is plain that North Korean policies were well known within the territory of the State party and it is not clear how the (undefined) “benefit” that might arise for the DPRK from the publication of views similar to their own created a risk to national security, nor is it clear what was the nature and extent of any such risk. There is no indication that the courts, at any level, addressed those questions or considered whether the contents of the speech or the documents had any additional effect upon the audience or readers such as to threaten public security, the protection of which would justify restriction within the terms of the Covenant as being necessary.
12.5 The Committee considers, therefore, that the State party has failed to specify the precise nature of the threat allegedly posed by the author’s exercise of freedom of expression, and that the State party has not provided specific justifications as to why over and above prosecuting the author for contraventions of the Law on Assembly and Demonstration and the Law on Punishment of Violent Activities (which forms no part of the author’s complaint), it was necessary for national security, also to prosecute the author for the exercise of his freedom of expression. The Committee considers therefore that the restriction of the author’s right to freedom of expression was not compatible with the requirements of article 19, paragraph 3, of the Covenant.
Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of Article 19 and it must be necessary to achieve a legitimate purpose. Significantly, the restriction was provided by Korean law. The question for the Committee was whether the restriction was necessary for the protection of national security. The Committee found that the state party had failed to explain how the dissemination of the views of the author created a risk to national security or what the nature or extent of such a risk could be. There was no indication that the courts had considered whether the views of the author had had any additional effect which might threaten public security.
Selected additional cases: Park v. Republic of South Korea , Communication No. 628/1995, Views of 20 October 1998 and Sohn v. Republic of South Korea,Communication No. 518/1992, Views of 19 July 1995.
In the case of The Observer and the Guardian v. The United Kingdom , the applicants were restrained by various injunctions from publishing details of the book Spycatcher, which had been written by a former member of the British Security Service and contained allegations of serious malpractice and illegal conduct by that Service. The information had been obtained from the author of the book. The book had been due to be published in Australia when the British government instituted proceedings there for an injunction on grounds that the author had received the information contained in the book under an obligation of confidence. Whilst the Australian proceedings were still pending, two other newspapers, the Observer and the Guardian (OG), published short articles reporting on the forthcoming hearing in Australia and giving details of some of the contents of Spycatcher. Proceedings were then instituted against the OG for breach of confidence; the Attorney General also sought and was eventually granted injunctions restraining them from making any publication of Spycatcher material. All appeals by the OG failed. The injunction was maintained after the book had been published in other countries and had been available through import in the United Kingdom.
The Observer and the Guardian v. The United Kingdom
European Court of Human Rights
Application No. 13585/88
Judgement of 26 November 1991
Keywords: expression - national security
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
49. The restrictions complained of clearly constituted, as was not disputed, an “interference” with O.G.’s exercise of their freedom of expression, as guaranteed by paragraph 1 of Article 10. Such an interference entails a violation of Article 10 (art. 10) if it does not fall within one of the exceptions provided for in paragraph 2; the Court must therefore examine in turn whether the interference was “prescribed by law”, whether it had an aim or aims that is or are legitimate under Article 10 para. 2 and whether it was “necessary in a democratic society” for the aforesaid aim or aims.
A. Was the interference “prescribed by law”?
51. It is true that the Attorney General’s actions for breach of confidence raised issues of law which were not clarified until judgment had been given on the merits. However, O.G.’s complaint was not directed to this aspect of the case, but solely to the legal principles upon which the injunctions were granted, which principles were, in their submission, neither adequately accessible nor sufficiently foreseeable (see the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31, para. 49).
52. In the Court’s view, no problem arises concerning accessibility, since the relevant guidelines had been enunciated by the House of Lords several years previously, in 1975, in American Cyanamid Co. v. Ethicon Ltd [?].
53. (a) As regards foreseeability, O.G. advanced three specific arguments.
(i) It was not clear whether the American Cyanamid decision had overruled certain earlier rules relating to the grant of injunctions in particular areas of the law. The Court notes, however, that O.G. themselves recognised that the principles laid down in that decision had been expressed to be applicable to all classes of action.
(ii) There had never been a case similar to theirs in which the American Cyanamid principles had been applied. This fact, in the Court’s view, is of little consequence in the present context: since the principles were expressed to be of general application, recourse had perforce to be had to them from time to time in novel situations, so that their utilisation on this occasion involved no more than the application of existing rules to a different set of circumstances.
(iii) It was not until judgment was given on the merits of the Attorney General’s actions [?] that it became clear that an injunction would be granted in a case of this kind only on proof of potential detriment to the public interest. This, however, suggests that there was a greater likelihood of a restriction being imposed under the law as it stood previously.
(b) More generally, having examined the American Cyanamid principles in the light of its above-mentioned Sunday Times judgment (Series A no. 30), and especially paragraph 49 thereof, the Court entertains no doubt that they were formulated with a degree of precision that is sufficient in a matter of this kind. It considers that O.G. must have been able to foresee, to an extent that was reasonable in the circumstances, a risk that the interlocutory injunctions would be imposed.
54. The interference was accordingly “prescribed by law”.
B. Did the interference have aims that are legitimate under Article 10 para. 2?
56. The Court is satisfied that the injunctions had the direct or primary aim of “maintaining the authority of the judiciary”, which phrase includes the protection of the rights of litigants (see the above-mentioned Sunday Times judgment, Series A no. 30, p. 34, para. 56).
It is also incontrovertible that a further purpose of the restrictions complained of was the protection of national security. [?].
57. The interference complained of thus had aims that were legitimate under paragraph 2 of Article 10.
C. Was the interference “necessary in a democratic society”?
58. Argument before the Court was concentrated on the question whether the interference complained of could be regarded as “necessary in a democratic society”. After summarising the relevant general principles that emerge from its case-law, the Court will, like the Commission, examine this issue with regard to two distinct periods, the first running from 11 July 1986 (imposition of the Millett injunctions) to 30 July 1987 (continuation of those measures by the House of Lords), and the second from 30 July 1987 to 13 October 1988 (final decision on the merits of the Attorney General’s actions for breach of confidence).
2. The period from 11 July 1986 to 30 July 1987
61. In assessing the necessity for the interference with O.G.’s freedom of expression during the period from 11 July 1986 to 30 July 1987, it is essential to have a clear picture of the factual situation that obtained when Mr Justice Millett first imposed the injunctions in question.
At that time O.G. had only published two short articles which, in their submission, constituted fair reports concerning the issues in the forthcoming hearing in Australia; contained information that was of legitimate public concern, that is to say allegations of impropriety on the part of officers of the British Security Service; and repeated material which, with little or no action on the part of the Government to prevent this, had for the most part already been made public.
Whilst substantially correct, these submissions do not tell the whole story. They omit, in the first place, O.G.’s acknowledgment, before Mr Justice Millett, that they wished to be free to publish further information deriving directly or indirectly from Mr Wright and disclosing alleged unlawful activity on the part of the Security Service, whether or not it had been previously published. What they also omit is the fact that in July 1986 Spycatcher existed only in manuscript form. It was not then known precisely what the book would contain and, even if the previously-published material furnished some clues in this respect, it might have been expected that the author would seek to say something new. And it was not unreasonable to suppose that where a former senior employee of a security service – an “insider”, such as Mr Wright - proposed to publish, without authorisation, his memoirs, there was at least a risk that they would comprise material the disclosure of which might be detrimental to that service; it has to be borne in mind that in such a context damaging information may be gleaned from an accumulation of what appear at first sight to be unimportant details. What is more, it was improbable in any event that all the contents of the book would raise questions of public concern outweighing the interests of national security.
62. Mr Justice Millett’s decision to grant injunctions - which, in the subsequent stages of the interlocutory proceedings, was accepted as correct not only by the Court of Appeal but also by all the members of the Appellate Committee of the House of Lords - was based on the following line of reasoning. The Attorney General was seeking a permanent ban on the publication of material the disclosure of which would, according to the credible evidence presented on his behalf, be detrimental to the Security Service; to refuse interlocutory injunctions would mean that O.G. would be free to publish that material immediately and before the substantive trial; this would effectively deprive the Attorney General, if successful on the merits, of his right to be granted a permanent injunction, thereby irrevocably destroying the substance of his actions and, with it, the claim to protect national security.
In the Court’s view, these reasons were “relevant” in terms of the aims both of protecting national security and of maintaining the authority of the judiciary. The question remains whether they were “sufficient”.
In forming its own opinion, the Court has borne in mind its observations concerning the nature and contents of Spycatcher and the interests of national security involved; it has also had regard to the potential prejudice to the Attorney General’s breach of confidence actions, this being a point that has to be seen in the context of the central position occupied by Article 6 of the Convention and its guarantee of the right to a fair trial [?]. Particularly in the light of these factors, the Court takes the view that, having regard to their margin of appreciation, the English courts were entitled to consider the grant of injunctive relief to be necessary and that their reasons for so concluding were “sufficient” for the purposes of paragraph 2 of Article 10.
64. It has nevertheless to be examined whether the actual restraints imposed were “proportionate” to the legitimate aims pursued.
In this connection, it is to be noted that the injunctions did not erect a blanket prohibition. Whilst they forbade the publication of information derived from or attributed to Mr Wright in his capacity as a member of the Security Service, they did not prevent O.G. from pursuing their campaign for an independent inquiry into the operation of that service [?]. Moreover, they contained provisos excluding certain material from their scope, notably that which had been previously published in the works of Mr Chapman Pincher and in the Granada Television programmes (see paragraph 19 above). Again, it was open to O.G. at any time to seek - as they in fact did (see paragraphs 23 and 26 above) - variation or discharge of the orders.
It is true that although the injunctions were intended to be no more than temporary measures, they in fact remained in force – as far as the period now under consideration is concerned – for slightly more than a year. And this is a long time where the perishable commodity of news is concerned [?]. As against this, it may be pointed out that the Court of Appeal certified the case as fit for a speedy trial - which O.G. apparently did not seek - and that the news in question, relating as it did to events that had occurred several years previously, could not really be classified as urgent. Furthermore, the Attorney General’s actions raised difficult issues of both fact and law: time was accordingly required for the preparation of the trial, especially since, as Lord Brandon of Oakbrook pointed out, they were issues on which evidence had to be adduced and subjected to cross-examination.
65. Having regard to the foregoing, the Court concludes that, as regards the period from 11 July 1986 to 30 July 1987, the national authorities were entitled to think that the interference complained of was “necessary in a democratic society”.
3. The period from 30 July 1987 to 13 October 1988
66. On 14 July 1987 Spycatcher was published in the United States of America [?]. This changed the situation that had obtained since 11 July 1986. In the first place, the contents of the book ceased to be a matter of speculation and their confidentiality was destroyed. Furthermore, Mr Wright’s memoirs were obtainable from abroad by residents of the United Kingdom, the Government having made no attempt to impose a ban on importation [?].
68. The fact that the further publication of Spycatcher material could have been prejudicial to the trial of the Attorney General’s claims for permanent injunctions was certainly, in terms of the aim of maintaining the authority of the judiciary, a “relevant” reason for continuing the restraints in question. The Court finds, however, that in the circumstances it does not constitute a “sufficient” reason for the purposes of Article 10.
It is true that the House of Lords had regard to the requirements of the Convention, even though it is not incorporated into domestic law. It is also true that there is some difference between the casual importation of copies of Spycatcher into the United Kingdom and mass publication of its contents in the press. On the other hand, even if the Attorney General had succeeded in obtaining permanent injunctions at the substantive trial, they would have borne on material the confidentiality of which had been destroyed in any event - and irrespective of whether any further disclosures were made by O.G. - as a result of the publication in the United States. Seen in terms of the protection of the Attorney General’s rights as a litigant, the interest in maintaining the confidentiality of that material had, for the purposes of the Convention, ceased to exist by 30 July 1987 [?].
Above all, continuation of the restrictions after July 1987 prevented newspapers from exercising their right and duty to purvey information, already available, on a matter of legitimate public concern.
70. Having regard to the foregoing, the Court concludes that the interference complained of was no longer “necessary in a democratic society” after 30 July 1987.
71. To sum up, there was a violation of Article 10 from 30 July 1987 to 13 October 1988, but not from 11 July 1986 to 30 July 1987.
Selected additional cases: Sunday Times v. The United Kingdom (No.2), Application No. 13166/87, Judgement of 26 November 1991 and Aydin v. Turkey, Application No. 42435/98, Judgement of 9 March 2004.
While not providing for derogation clauses, the African Charter contains a number of articles with provisions that limit the reach of these rights, and which have been referred to as ‘clawback clauses’. Article 9(2)ACHPR provides an example of a so-called ‘clawback clause’: ‘every individual shall have the right to express and disseminate his opinions within the law’. The term ‘within the law’ was by many experts interpreted to mean that no domestic legal provision limiting the right in question could be challenged under the African Charter. The Commission has rectified this interpretation in its decisions, finding that the term ‘within the law’ is to be understood to refer to international law, not domestic law. Thus, limitations under domestic law must comply with international standards. This was confirmed by the African Commission in the following case,Media Rights Agenda et al. v. Nigeria . The military government passed a number of decrees after the annulment of the 1993 Presidential elections. These proscribed particular publications and retrospectively required the registration of all newspapers, including the payment of large registration fees, before publication. Since the requirement was retrospective, all owners, publishers and printers of newspapers immediately became liable to arrest. Other decrees ousted the jurisdiction of the courts to challenge these decrees or anything done pursuant to them.
Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda, Constitutional Rights Project v. Nigeria African Commission on Human and Peoples’ Rights
Communication Nos. 105/93, 128/94, 130/94 and 152/96
Twelfth Activity Report 1998-1999, Annex V.
Keywords: expression - property - liberty and security - health
THE COMMISSION’S EXAMINATION OF THE MERITS:
[?]66. According to Article 9.2 of the Charter, dissemination of opinions may be restricted by law. This does not mean that national law can set aside the right to express and disseminate one’s opinions; this would make the protection of the right to express one’s opinions ineffective. To allow national law to have precedence over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.
67. In contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances.
68. The only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27.2, that is that the rights of the Charter “shall be exercised with due regard to the rights of others, collective security, morality and common interest.”
69. The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained.
70. Even more important, a limitation may never have as a consequence that the right itself becomes illusory.
73. In the present case, the government has provided no evidence that seizure of the magazine was for any other reason than simple criticism of the government. The article in question might have caused some debate and criticism of the government, but there seems to have been no information threatening to, for example, national security or public order in it. All of the legislation criticized in the article was already known to members of the public information, as laws must be, in order to be effective.
FOR THESE REASONS, THE COMMISSION
Hold a violation of Article [?], 9.1, 9.2 [?] of the African Charter;
Obvious restrictions to protect public morals include legislation against obscenity, the dissemination of pornographic materials and laws providing for prior censorship of films. As with the above-mentioned restrictions, however, no universally applicable standard exists with regard to public morals.
In the following case,Handyside v. The United Kingdom , the applicant, a publishing firm, published the‘Little Red Book’ which was intended for, and made available to, school children of the age of twelve and upwards. The book contained chapters on sex, including sub-sections on issues like masturbation, contraceptives, menstruation, pornography, homosexuality and abortion and addresses for help and advice on sexual matters. The book had first been published in Denmark and subsequently, after translation and with certain adaptations, in Belgium, Finland, the Federal Republic of Germany, Greece, Iceland, Italy, the Netherlands, Norway, Sweden and Switzerland, as well as several non-European countries. It was also circulated freely in Austria and Luxembourg. Following a number of complaints, the applicant’s premises were searched and copies of the books were seized. The applicant was found guilty on two counts of having in his possession obscene books for publication for gain. He was fined and ordered to pay costs. The court also made a forfeiture order for the destruction of the books by the police. The conviction was upheld on appeal, and the books seized were then destroyed. A revised edition of the book was later published after alterations were made to the text and certain offending lines were re-written or eliminated.
Handyside v. The United Kingdom
European Court of Human Rights
Application No. 5493/72
Judgement of 7 December 1976
Keywords: expression - abuse of authority –non-discrimination – property
I. ON THE ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
44. If the “restrictions” and “penalties” complained of by Mr. Handyside are not to infringe Article 10, they must, according to paragraph 2, in the first place have been “prescribed by law”. The Court finds that this was the case. In the United Kingdom legal system, the basis in law for the measures in question was the 1959/1964 Acts [?]. Besides, this was not contested by the applicant who further admitted that the competent authorities had correctly applied those Acts.
45. Having thus ascertained that the interferences complained of satisfied the first of the conditions in paragraph 2 of Article 10, the Court then investigated whether they also complied with the others. According to the Government and the majority of the
Commission, the interferences were “necessary in a democratic society”, “for the protection of ? morals”.
47. The Court must also investigate whether the protection of morals in a democratic society necessitated the various measures taken against the applicant and the Schoolbook [?].
48. The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights [?] The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted (Article 26) [?]. These observations apply, notably, to Article 10 para. 2. In particular, it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them. The Court notes at this juncture that, whilst the adjective “necessary”, within the meaning of Article 10 para. 2, is not synonymous with “indispensable”[?] the words “absolutely necessary” and “strictly necessary” and, in Article 15 para. 1, the phrase “to the extent strictly required by the exigencies of the situation”, neither has it the flexibility of such expressions as “admissible”, “ordinary” [?], “useful” [?], “reasonable”[?] or “desirable”.
Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of “necessity” in this context.
Consequently, Article 10 para. 2 leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force [?].
49. Nevertheless, Article 10 para. 2 does not give the Contracting States an unlimited power of appreciation. The Court [?] is empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10. [?].
The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”.
Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. 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 offend, shock 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”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued. From another standpoint, whoever exercises his freedom of expression undertakes “duties and responsibilities” the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person’s “duties” and “responsibilities” when it enquires, as in this case, whether “restrictions” or “penalties” were conducive to the “protection of morals” which made them “necessary” in a “democratic society”.
52. The Court attaches particular importance to a factor to which the judgment of 29 October 1971 did not fail to draw attention, that is, the intended readership of the Schoolbook. It was aimed above all at children and adolescents aged from twelve to eighteen. Being direct, factual and reduced to essentials in style, it was easily within the comprehension of even the youngest of such readers. The applicant had made it clear that he planned a widespread circulation. He had sent the book, with a press release, to numerous daily papers and periodicals for review or for advertising purposes. What is more, he had set a modest sale price (thirty pence), arranged for a reprint of 50,000 copies shortly after the first impression of 20,000 and chosen a title suggesting that the work was some kind of handbook for use in schools.
Basically the book contained purely factual information that was generally correct and often useful, as the Quarter Sessions recognised. However, it also included, above all in the section on sex and in the passage headed “Be yourself” in the chapter on pupils [?], sentences or paragraphs that young people at a critical stage of their development could have interpreted as an encouragement to indulge in precocious activities harmful for them or even to commit certain criminal offences. In these circumstances, despite the variety and the constant evolution in the United Kingdom of views on ethics and education, the competent English judges were entitled, in the exercise of their discretion, to think at the relevant time that the Schoolbook would have pernicious effects on the morals of many of the children and adolescents who would read it.
The Court thus allows that the fundamental aim of the judgment of 29 October 1971, applying the 1959/1964 Acts, was the protection of the morals of the young, a legitimate purpose under Article 10 para. 2. Consequently, the seizures effected on 31 March and 1 April 1971, pending the outcome of the proceedings that were about to open, also had this aim.
53. It remains to examine the “necessity” of the measures in dispute, beginning with the said seizures. If the applicant is right, their object should have been at the most one or a few copies of the book to be used as exhibits in the criminal proceedings. The Court does not share this view since the police had good reasons for trying to lay their hands on all the stock as a temporary means of protecting the young against a danger to morals on whose existence it was for the trial court to decide. The legislation of many Contracting States provides for a seizure analogous to that envisaged by section 3 of the English 1959/1964 Acts.
In the Court’s view, the absence of proceedings against the revised edition, which differed fairly extensively from the original edition on the points at issue [?], rather suggests that the competent authorities wished to limit themselves to what was strictly necessary, an attitude in conformity with Article 10 of the Convention.
59. On the strength of the data before it, the Court thus reaches the conclusion that no breach of the requirements of Article 10 (art. 10) has been established in the circumstances of the present case.
FOR THESE REASONS, THE COURT
Holds by thirteen votes to one that there has been no breach of Article 10 (art. 10) of the Convention.
In the above case, the European Court held that the state’s actions were properly justified under the restrictions in paragraph 2, and specifically under the ‘protection of morals’ clause. The Court, noting that the target audience of the publication at issue was adolescent children and dismissing the applicant’s argument that the publication was in free circulation in the majority of Council of Europe member states, allowed the state a very broad margin of appreciation. (See also Murphy v. Ireland , reproduced below).
In the Handyside case, the European Court also deals with the principle that it should scrutinise, ‘the particular situation of the person exercising freedom of expression and the duties and responsibilities attaching to that situation.’ The Court noted the age of the target audience for the publication at issue and its possible effects on the morals of young readers as important factors in the case. In this case, the Court held that the state was justified in restraining the publisher. The Court arrived at the opposite conclusion in the Sunday Times case, as there the newspaper’s role was to inform the public about an important matter of current general interest (The Sunday Times v. United Kingdom (No.2), Application No. 13166/87, Judgement of 26 November 1991). The duties and responsibilities of journalists were also at issue in Jersild v. Denmark (Application No. 15890/89, Judgement of 23 September 1994), in which a Danish television journalist had been fined for aiding and abetting the dissemination of racist remarks through his broadcasting of an interview with several Danish youths belonging to a group espousing racist and anti-immigration views.
Selected additional cases: Müller et al. v. Switzerland , Application No. 10737/84, Judgement of 24 May 1988.
In the following case the Cinematographic Classification Council of Chile (CCC) refused to allow The Last Temptation of Christ to be shown as it was considered to be blasphemous. The decision was upheld on appeal. Following a further petition by United International Pictures Ltd., the CCC reviewed its prohibition and it was decided to licence the film for an audience of 18 years and over. A complaint resulted in the Supreme Court annulling the original decision. Subsequently, constitutional reforms were introduced to eliminate cinematographic censorship, replacing it with a classification system.
Olmedo Bustos et al. v. Chile (“The Last Temptation of Christ” Case)
Inter-American Court of Human Rights
Series C No. 73
Judgement of 5 February 2001
VIII ARTICLE 13 FREEDOM OF THOUGHT AND EXPRESSION
CONSIDERATIONS OF THE COURT
63. Article 13 of the American Convention establishes that:
1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. Respect for the rights or reputation of others;
b. The protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or nay another means tending to impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial or religious hatred that constitute incitements to lawless violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, colour, religion, language, or national origin shall be considered as offences punishable by law.
69. The European Court of Human Rights has indicated that:
[The] supervisory function [of the Court] signifies that [it] must pay great attention to the principles inherent in a’ democratic society’. Freedom of expression constitutes one of the essential bases of such a society, one of the primordial conditions for its progress and for the development of man. Article 10.2 [of the European Convention on Human Rights] is valid not only for the information or ideas that are favourably received or considered inoffensive or indifferent, but also for those that shock, concern or offend the State or any sector of the population. Such are the requirements of pluralism, tolerance and the spirit of openness, without which no ‘democratic society’ can exist. This means that any formality, condition, restriction or sanction imposed in that respect, should be proportionate to the legitimate end sought.
Also, those who exercise their freedom of expression assume’ obligations and responsibilities’, the scope of which depends on the context and the technical procedure used.
70. It is important to mention that Article 13.4 of the Convention establishes an exception to prior censorship, since it allows it in the case of public entertainment, but only in order to regulate access for the moral protection of children and adolescents. In all other cases, any preventive measure implies the impairment of freedom of thought and expression.
71. In the instant case, it has been proved that, in Chile, there is a system of prior censorship for the exhibition and publicity of cinematographic films and that, in principle, the Cinematographic Classification Council prohibited exhibition of the film “The Last Temptation of Christ” and, reclassifying it, permitted it to be exhibited to persons over 18 years of age [?]. Subsequently, the Court of Appeal of Santiago decided to annul the November 1996 decision of the Cinematographic Classification Council, owing to a remedy for protection filed by Sergio García Valdés, Vicente Torres Irarrázabal, Francisco Javier Donoso Barriga, Matías PérezCruz, Jorge Reyes Zapata, Cristian Heerwagen Guzmán and Joel González Castillo, “for and in the name of [º] Jesus Christ, the Catholic Church and themselves”; a decision that was confirmed by the Supreme Court of Justice of Chile. Therefore, this Court considers that the prohibition of the exhibition of the film “The Last Temptation of Christ” constitutes prior censorship in violation of Article 13 of the Convention.
72. This Court understands that the international responsibility of the State may be engaged by acts or omissions of any power or organ of the State, whatsoever its rank, that violate the American Convention. That is, any act or omission that may be attributed to the State, in violation of the norms of international human rights law engages the international responsibility of the State. In this case, it was engaged because article 19.12 of the Constitution establishes prior censorship of cinematographic films and, therefore, determines the acts of the Executive, the Legislature and the Judiciary.
73. In the light of the foregoing considerations, the Court declares that the State violated the right to freedom of thought and expression embodied in Article 13 of the American Convention, to the detriment of Juan Pablo Olmedo Bustos, Ciro Colombara López, Claudio Márquez Vidal, Alex Muñoz Wilson, Matías Insunza Tagle and Hernán Aguirre Fuentes.
1. Finds that the State violated the right to freedom of thought and expression embodied in Article 13 of the American Convention on Human Rights [?].
The Inter-American Court noted that under the system established by the American Convention some prior censorship is allowed in the case of public entertainment, but only insofar as this is necessary for the moral protection of children and adolescents. In all other cases, prior censorship implies a violation of the right to freedom of thought and expression. The present case concerned prior censorship of a film on the grounds that it was blasphemous. This fell outside the category of ‘moral protection of the young’ for which prior censorship was allowed, and the Court therefore found a violation of the right to freedom of expression.
Reputation or rights of others
The right to freedom of expression under most human rights treaties recognises that the right to freedom of expression of one person can clash with another’s person’s equally important rights. The freedom of expression can therefore be limited in cases of defamation or with regard to the abuse of power of the media. The permissible limitation of freedom of expression to protect the reputation and rights of others has not been defined yet and could potentially be very broad, as has been demonstrated in the case-law of the different supervisory bodies.
In the following case, Faurisson v. France , the applicant was convicted for the offence of holocaust denial for arguing that there had been no gas extermination chambers in Nazi death camps. He was convicted under a law which criminalised contesting the existence of the category of crimes against humanity (generally regarded as making up the ‘holocaust’) defined in the London Charter of 1945. The Human Rights Committee found in favour of France that the restrictions imposed on the applicant’s freedom of expression were necessary in order to protect the rights of others.
Faurisson v. France
Human Rights Committee
Communication No. 550/1993
Views of 8 November 1996
Keywords: expression - revisionism (denial of the holocaust) - reputation or rights of others
THE COMMITTEE’S EXAMINATION OF THE MERITS
9.4 Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19, and must be necessary to achieve a legitimate purpose.
9.5 The restriction on the author’s freedom of expression was indeed provided by law i.e. the Act of 13 July 1990. It is the constant jurisprudence of the Committee that the restrictive law itself must be in compliance with the provisions of the Covenant. In this regard the Committee concludes, on the basis of the reading of the judgment of the 17th Chambre correctionnelle du Tribunal de grande instance de Paris that the finding of the author’s guilt was based on his following two statements: “? I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers ? I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication”. His conviction therefore did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author’s case by the French courts, is in compliance with the provisions of the Covenant.
9.6 To assess whether the restrictions placed on the author’s freedom of expression by his criminal conviction were applied for the purposes provided for by the Covenant, the Committee begins by noting, as it did in its General Comment 10 that the rights for the protection of which restrictions on the freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. The Committee therefore concludes that the restriction of the author’s freedom of expression was permissible under article 19, paragraph 3 (a), of the Covenant.
9.7 Lastly the Committee needs to consider whether the restriction of the author’s freedom of expression was necessary. The Committee noted the State party’s argument contending that the introduction of the Gayssot Act was intended to serve the struggle against racism and anti-semitism. It also noted the statement of a member of the French Government, the then Minister of Justice, which characterized the denial of the existence of the Holocaust as the principal vehicle for anti-semitism. In the absence in the material before it of any argument undermining the validity of the State party’s position as to the necessity of the restriction, the Committee is satisfied that the restriction of Mr. Faurisson’s freedom of expression was necessary within the meaning of article 19, paragraph 3, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee do not reveal a violation by France of article 19, paragraph 3, of the Covenant.
The statements made by the applicant were of a nature that raised or strengthened anti-Semitic feeling and accordingly the restriction served to respect the right of the Jewish Community to live free from the fear of anti-Semitism. The restriction was therefore permissible under Article 19(3). The restriction was also necessary to serve the struggle against racism since holocaust denial was one of the principle contemporary vehicles for anti-Semitism. In this case, the Committee only relied on Article 19 and not on Article 20 of the Covenant, as it did in a later related case of Ross v. Canada , Communication No. 736/1997, Views of 18 October 2000).
The European Court dealt with a similar issue in its decision regarding the admissibility of the case of Garaudy v. France (Application No. 65831/01, Admissibility Decision of 7 July 2003). With regard to Mr Garaudy’s convictions for disputing the existence of crimes against humanity, the Court referred to Article 17 (prohibition of abuse of rights), which was intended to prevent people from inferring from the Convention any right to engage in activities or perform acts aimed at the destruction of any of the rights and freedoms set forth in the Convention. Thus, no one could rely on the Convention as a basis for engaging in any act that was contrary to its provisions. Having analysed the book concerned, the Court found that, as the domestic courts had shown, the applicant had adopted revisionist theories and systematically disputed the existence of the crimes against humanity that the Nazis had committed against the Jewish community. There could be no doubt that disputing the existence of clearly established historical events, such as the Holocaust, did not constitute historical research akin to a quest for the truth. The real purpose of such a work was to rehabilitate the National-Socialist regime and, as a consequence, to accuse the victims of the Holocaust of falsifying history. The Court found that, since the applicant’s book, taken as a whole, displayed a marked tendency to revisionism, it ran counter to the fundamental values of the Convention, namely justice and peace. The applicant had sought to deflect Article 10 of the Convention from its intended purpose by using his right to freedom of expression to fulfil ends that were contrary to the Convention. Consequently, the Court held that he could not rely on Article 10 and declared his complaint incompatible with the Convention.
As regards Mr Garaudy’s convictions for racial defamation and incitement to racial hatred, the Court found that they could constitute an interference with his right to freedom of expression. The interference was prescribed by the Act of 29 July 1881 and had at least two legitimate aims: ‘the prevention of disorder or crime’ and ‘the protection of the reputation or rights of others’. However, for the same reasons as those set out above and in view of the overall revisionist tone of the work, the Court had serious doubts as to whether the passages on which his convictions were based could qualify for protection under Article 10. While criticism of state policy, whether of Israel or any other state, indisputably came within that Article, the Court noted that the applicant had not confined himself to such criticism: his writings had a clear racist objective. However, the Court did not consider it necessary to decide that issue, as it found that the reasons given by the domestic courts for convicting the applicant were relevant and sufficient and the interference with his right to respect for his freedom of expression was ‘necessary in a democratic society’, in accordance with Article 10(2) of the Convention. Accordingly, the Court declared this complaint ill-founded.
In the following case, Murphy v. Ireland, Ireland stopped a religious advertisement in order to ensure respect for the religious beliefs of others. When deciding on the case, the European Court of Human Rights took into consideration the margin of appreciation accorded to states in questions relating to morals and ‘reputations of others’ and which medium was going to be used for advertisement.
Murphy v. Ireland
European Court of Human Rights
Application No. 44179/98
Judgement of 10 July 2003
Keywords: expression - democratic society
B. THE COURT’S ASSESSMENT
2. “Prescribed by law”
62. The parties did not dispute, and the Court considers it clear, that the prohibition applied to the applicant was set out in a clear and accessible manner in section 10(3) of the 1988 Act.
3. Legitimate aim
63. The Government maintained that the prohibition sought to ensure respect for the religious doctrines and beliefs of others so that the aims of the impugned provision were public order and safety together with the protection of the rights and freedoms of others.
64. The Court does not see any reason to doubt that these were indeed the aims of the impugned legislation and considers that they constituted legitimate aims for the purposes of Article 10§ 2 of the Convention [?].
4. “Necessary in a democratic society”
69. [?] it is recalled that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference. The Court has acknowledged that account must be taken of the fact that the audio-visual media have a more immediate and powerful effect than the print media [?].
(b) The application of those principles to the present case
70. The Court notes at the outset that the nature and purpose of the expression contained in the relevant advertisement accords with it being treated as religious, as opposed to commercial, expression even if the applicant purchased the relevant broadcasting time [?].
73. Turning therefore to the country-specific religious sensitivities relied on by the Government, the Court has noted that the Minister identified, during the debate on the introduction of section 20(4) of the 1960 Act, the potential impact on religious sensitivities as justifying prudence in the context of the broadcasting of religious advertising and he drew a distinction between advertising time which was purchased and programming [?]. Section 20(4) was then applied to independent broadcasters through section 10(3) of the 1988 Act, the provision at issue in the present case. The Court has noted that, during the detailed debate on a proposed dilution of section 10(3) in April 1999, the Minister emphasised at some length the extreme sensitivity of the question of broadcasting of religious advertising in Ireland and the consequent necessity to proceed towards any proposed amendment of section 10(3) with care and on the basis of a full consideration of the issues and options [?].
Moreover, the domestic courts found that the Government were entitled to be prudent in this context. In particular, the High Court considered relevant the fact that religion had been a divisive issue in Northern Ireland. It further considered that Irish people with religious beliefs tended to belong to a particular church so that religious advertising from a different church might be considered offensive and open to the interpretation of proselytism. Indeed, the High Court pointed out that it was the very fact that an advertisement was directed towards a religious end which might have been potentially offensive to the public. The Supreme Court also emphasised that the three subjects highlighted by section 10(3) of the 1988 Act concerned subjects which had proven “extremely divisive in Irish society in the past” and it also agreed that the Government had been entitled to take the view that Irish citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements could lead to unrest.
74. The Court has also observed that the impugned provision was designed to correspond, and was indeed limited, to these particular concerns and that the bounds of the prohibition are an important consideration in the assessment of its proportionality [?].
The prohibition concerned only the audio-visual media. The State was, in the Court’s view, entitled to be particularly wary of the potential for offence in the broadcasting context, such media being accepted by this Court (see paragraph 69) and acknowledged by the applicant, as having a more immediate, invasive and powerful impact including, as the Government and the High Court noted, on the passive recipient. He was consequently free to advertise the same matter in any of the print media (including local and national newspapers) and during public meetings and other assemblies.
Moreover, the prohibition related only to advertising. This Court considers that this limitation reflects a reasonable distinction made by the State between, on the one hand, purchasing broadcasting time to advertise and, on the other, coverage of religious matters through programming (including documentaries, debates, films, discussions and live coverage of religious events and occasions). Programming is not broadcast because a party has purchased airtime and, as outlined by the Government, must be impartial, neutral and balanced, the objective value of which obligation the parties did not dispute. The applicant retained the same right as any other citizen to participate in programmes on religious matters and to have services of his church broadcast in the audio-visual media. Advertising, however, tends to have a distinctly partial objective: it cannot be, and is not, therefore subject to the above-outlined principle of impartiality and the fact that advertising time is purchased would lean in favour of unbalanced usage by religious groups with larger resources and advertising.
Consequently, other than advertisements in the broadcast media, the applicant’s religious expression was not otherwise restricted.
75. Such considerations provide, in the Court’s view, highly “relevant reasons” justifying the Irish State’s prohibition of the broadcasting of religious advertisements.
The applicant suggested that such a filtering process is already applied through the application of the principle of neutrality to programmes and programming. However, and as the Court has noted above, the distinct nature of advertising and programming means that the regulatory tools employed for programming are not directly applicable to advertising. The applicant also referred to the fact that advertisements (other than those prohibited by the impugned provision) are already subjected to advertising standards control. The Court does not, however, consider that the same public sensitivities and issues of neutrality arise in the case of religious advertisements and those concerning, for example, commercial services, goods or products.
78. Secondly, the Court considers it reasonable for the State to consider it likely that even a limited freedom to advertise would benefit a dominant religion more than those religions with significantly less adherents and resources. Such a result would jar with the objective of promoting neutrality in broadcasting and, in particular, of ensuring a “level playing field” for all religions in the medium considered to have the most powerful impact.
79. Thirdly, the applicant did not dispute the Government’s concern that allowing limited religious advertising would result in unequal consequences for the national and independent broadcasters.
80. Fourthly, while the State has, subsequent to the facts of the present case, diluted section 10(3) of the 1988 Act (through section 65 of the 2001 Act), the Minister’s comments in April 1999 together with the limited nature of the 2001 amendment do not undermine, and indeed are consistent with, the State’s view of the religious sensitivities in Ireland in 1988 and its understanding of the consequent necessity for full reflection and prudence when considering any evolution including a relaxation of the provisions of section 10(3) of the 1988 Act. In addition, the nature of the assessment required by section 65 of the 2001 Act (whether or not the advertisement amounted only to an announcement of the fact that a religious publication is for sale or that a religious event will take place) has been clearly chosen for its relatively objective and, consequently, uncontroversial nature.
81. Finally, and as to the parties’ submissions concerning the existence of similar prohibitions on the broadcasting of religious advertising in other countries, the Court observes that there appears to be no clear consensus between the Contracting States as to the manner in which to legislate for the broadcasting of religious advertisements. Certain States have similar prohibitions (for example, Greece, Switzerland and Portugal), certain prohibit religious advertisements considered offensive (for example, Spain and see also Council Directive 89/552/EEC) and certain have no legislative restriction (the Netherlands). There appears to be no “uniform conception of the requirements of the protection of the rights of others” in the context of the legislative regulation of the broadcasting of religious advertising [?].
82. In the circumstances, and given the margin of appreciation accorded to the State in such matters, the Court considers that the State has demonstrated that there were “relevant and sufficient” reasons justifying the interference with the applicant’s freedom of expression within the meaning of Article 10 of the Convention.
In consequence, it concludes that there has been no violation of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 10 of the Convention, under which Article the Court found the complaint was most appropriately considered.
Selected additional cases: Barfod v. Denmark , Application No. 11508/85, Judgement of 22 February 1989 and von Hannover v. Germany , Application No. 59320/00, Judgement of 24 June 2004.