Sentenza 09 luglio 2002, n.44179/98

Corte Europea dei Diritti dell’Uomo. Sezione terza. Sentenza 9 luglio 2002, n. 44179/98: “Divieto di trasmettere messaggi pubblicitari con fini di propaganda religiosa e diritto alla libertà di espressione”.

Chamber composed of:

Mr G. Ress, President,
Mr I. Cabral Barreto,
Mr L. Caflisch,
Mr P. Kūris,
Mr R. Türmen,
Mr J. Hedigan,
Mrs H.S. Greve, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 31 July 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:

THE FACTS

The applicant, Roy Murphy, is an Irish national. He was born in 1949 and lives in Dublin. He is represented before the Court by F.H. O’Reilly and company, solicitors practising in Dublin.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a pastor attached to the Irish Faith Centre, a bible based Christian ministry in Dublin. In early 1995 the Irish Faith Centre submitted an advertisement to an independent, local and commercial radio station for transmission. The text of the advertisement read as follows:

“What think ye of Christ? Would you, like Peter, only say that he is the son of the living God? Have you ever exposed yourself to the historical facts about Christ? The Irish Faith Centre are presenting for Easter week an hour long video by Dr Jean Scott Phd on the evidence of the resurrection from Monday 10th – Saturday 15th April every night at 8.30 and Easter Sunday at 11.30am and also live by satellite at 7.30pm.”

The radio station was prepared to broadcast the advertisement but in March 1995 the Independent Radio and Television Commission (“IRTC”) stopped the broadcast pursuant to Section 10(3) of the Radio and Television Act 1988 (“the 1988 Act”). The video was however transmitted by satellite.

The applicant took judicial review proceedings citing the IRTC and the Attorney General as respondents submitting that the IRTC had wrongly construed Section 10(3) and, alternatively and mainly, that if the IRTC had correctly applied section 10(3) of the 1988 Act, then that provision was unconstitutional.

By judgment delivered on 25 April 1997, the High Court found that the IRTC had not infringed section 10(3) of the 1988 Act. It also considered that the unspecified right to communicate guaranteed by Article 40(3)(1) of the Constitution was at issue since the advertisement had as its principal purpose the communication of information. However, section 10(3) constituted a reasonable limitation on the right to communicate and there were good reasons in the public interest for the ban. In so concluding the High Court judge stated as follows:

“I think that it would have been reasonable for [Parliament] to take the view that in Irish society religious advertising on commercial radio might be undesirable in the public interest. … It is sufficient, in my view, if there were good reasons in the public interest for the ban. Irish people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising. Religion has been a divisive factor in Northern Ireland and this is something which [Parliament] may well have taken into account. … a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any [Parliament] to have regard to the type of advertisements which might be permitted. The impugned Section enjoys the presumption of constitutionality. It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interest of the common good on this particular form of exercise of the right to communicate.

Of course it has been suggested on behalf of the Applicant that a blanket restriction is not proportional and that even if some restriction would be reasonable it would have to be less draconian. The absolute restriction according to the argument of Counsel for the Applicant infringes the doctrine of proportionality. I cannot accept this view. On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account. But at any rate, I do not think that one could subdivide religious advertising. Once a reasonable view can be put forward that religious advertising might be undesirable in the public interest, it would be impossible in practice to devise a wording that might have the effect of permitting certain alleged categories of innocuous religious advertising. It is the fact that the advertisement is directed towards a religious end and not some particular aspect of a religious end which might be potentially offensive to the public.”

The Supreme Court rejected the applicant’s appeal by judgment dated 28 May 1998. It pointed out at the outset as follows:

“One can best glean the policy of the Act of 1988 by looking at the three kinds of prohibited advertisement collectively. One might get a false impression by singling out one kind of banned advertisement and ignoring the others. All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. [Parliament] was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements, if permitted, might lead to unrest. Moreover, [Parliament] may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals.”

The court considered that religion was a private and a public affair and that the impugned provision was a restriction of the applicant’s right to freely communicate (Article 40(3) of the Constitution) and of his right to freedom of expression (Article 40(6)(1) of the Constitution) which rights could be limited in the interests of the common good. The court cited with approval previous jurisprudence which considered that the balance found by parliament between the individual rights and the common good should prevail:

“unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.”

It went on to point out that the real question was whether the limitation imposed upon the various constitutional rights was proportionate to the purpose which parliament wished to achieve. Again quoting with approval previous jurisprudence, it described the principle of proportionality as follows:

“In considering whether a restriction on the exercise of rights is permitted by the Constitution the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraints on the exercise of protected rights and the exigencies of the common good in a democratic society. This a test frequently adopted by the European Court of Human Rights and by the Supreme Court of Canada in the following terms. ‘The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible; and (c) be such that the effects on the rights are proportional to the objective.”

The Supreme Court found that section 10(3) of the 1988 Act complied with this test – the restriction was minimalist, the applicant had the right to advance his views in speech or writing or by holding assemblies or associating with persons of like mind as himself; he had no lesser right than any other citizen to appear on radio or television; and the only restriction placed upon his activities was that he could not advance his views by a paid advertisement on radio or television. As regards the blanket nature of the ban, the court noted that parliament may well have decided that it would be inappropriate to involve agents of the State in deciding which advertisements in such a sensitive area would be likely to cause offence. In any event, once the impugned provision was broadly within the competence of parliament and parliament had respected the principle of proportionality, it is not for that court to interfere simply because it might have made a different decision. The presumption of constitutionality of the legislation had not therefore been rebutted and the applicant’s appeal could not be allowed.

B. Relevant domestic law and practice

Article 40 of the Constitution of Ireland provides, in so far as relevant, as follows:

“3(1) The State guarantees in its laws to respect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen. …

6(1) The State guarantees liberty for the exercise of the following rights, subject to public order and morality:–

(i) the right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with the law.”

Article 44, in so far as relevant reads as follows:

“2(1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. …

(3) The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”

Section 10 (3) of the Radio and Television Act 1988 (“the 1988 Act”) provides as follows:

“No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.”

COMPLAINT

The applicant complains under Articles 9 and 10 of the Convention about Section 10(3) of the 1988 Act pursuant to which he was banned from advertising a forthcoming religious meeting.

THE LAW

The applicant complains about section 10(3) of the 1988 Act and he invokes Articles 9 and 10 of the Convention.

Article 9 reads as follows:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom …, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society …, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 10 reads as follows:

“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 … public safety, for the prevention of disorder or crime, for the protection of health or morals, …”

A. Exhaustion of domestic remedies

The Government argue that the applicant failed to exhaust domestic remedies in that he did not pursue before the Supreme Court the argument concerning the correct construction of section 10(3) of the 1988 Act and the alleged incorrect interpretation by the IRTC of the nature of the advertisement or of the relevant section of the 1988 Act.

The applicant points out that, shortly after the appeal commenced, the Supreme Court had indicated to his counsel that it did not think that there was much merit in this argument and invited counsel to concentrate on the constitutional argument. Counsel complied, but did not formally concede the argument concerning the correct construction and application of the relevant section. In any event, the Supreme Court would not, in accordance with established practice, rule on the constitutionality of the relevant section unless it was absolutely satisfied that the section was in fact applicable.

The Court recalls that an applicant is required to make normal use of domestic remedies which are effective, sufficient and accessible. In a legal system which provides constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation. Nevertheless, the burden of proving the existence of effective and sufficient remedies lies upon the State invoking the rule (Croke v. Ireland, (dec.), no. 33267/96, 15 June 1999, and Quinn v. Ireland, (dec.), no. 36887/97, 21 September 1999, both unpublished).

The Court notes that the applicant argues before this Court, not that the relevant provision of domestic law was wrongly applied to him, but rather that it interferes in an unjustifiable manner with his rights of expression and religious belief. The argument pursued to the final court of appeal by him was that the relevant statutory provision violated his constitutional rights to freedom of expression and religion. Accordingly, even if he did abandon the argument concerning the correct construction and application of the relevant section, he can be considered to have quite reasonably chosen to have exhausted an effective and relevant domestic remedy which reflected his essential grievance before this Court (application no. 24196/94, decision of 22 January 1996, Decisions and Report (DR) 84, p. 72, and Airey v. Ireland judgment of 9 October 1979, Series A no. 32, § 23).

His complaint cannot therefore be rejected on the basis that he has not exhausted domestic remedies.

B. Compatibility ratione materiae with the provisions of the Convention

The Government also maintain that neither Article 9 nor Article 10 guarantee the right to have the proposed advertisement broadcast by a commercial radio station. The applicant responds that his complaint is not that he wants the State to compel private stations to transmit the advertisement or that the failure by the station to so transmit constitutes a violation of Article 9 and 10 of the Convention. His complaint is rather that, relying on section 10(3) of the 1988 Act, the IRTC intervened and prevented the transmission of an advertisement that a radio station was willing to transmit.

The Court notes that it is not disputed that an organ of the State (IRTC) applied a statutory provision to prevent the transmission on a radio station, which otherwise would have taken place, of the applicant’s advertisement. He therefore complains about a restriction by the State on his expression of matters of a religious nature, a complaint falling within the scope of both Article 9 (Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, § 31) and of Article 10 (Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, § 55).

His complaint cannot therefore be rejected as being incompatible ratione materiae with the provisions of the Convention.

C. Merits

The Government maintain that the applicant’s complaints under Article 9 and 10 are both manifestly ill-founded or, alternatively, do not disclose a violation of those Articles of the Convention.

In the first place, they argue that the limitation on the applicant’s rights guaranteed by Articles 9 and 10 was so minimal as not to constitute an interference within the meaning of those Articles. They refer, inter alia, to the fact that the applicant could advance his views orally, in writing and in assembly, that he could appear on radio and television and that he could transmit the relevant video by satellite and other means.

Secondly, and if is considered that there was such an interference, the Government contend that it was prescribed by law (by section 10(3) of the 1988 Act) and that it was justified as proportionate to the legitimate aims of public order and safety and of the rights and freedoms of others.

In this latter respect, the Government point out that the State can, consistently with this Court’s jurisprudence, regulate by a licensing system the manner in which broadcasting is organised in its territory. Relevant considerations include the nature and objectives of the proposed station, its potential audience and the rights and interests of a specific audience. Such limitations must, while finding their source in Article 10 § 1, be justified for one of the reasons included in Article 10 § 2 of the Convention. They point out that broadcasting is considered more compelling and intrusive than the print media, a difference which explains why the former is subjected to a licensing regime and the latter is not.

The Government also note that the Irish broadcast media is subject to a principle of impartiality which would be undermined if a station was obliged, or even free, to accept advertising that was partisan on sensitive issues and, in this respect, the Government refer to the reasoning of the High Court quoted above concerning the undesirability of religious advertising on Irish radio.

They further observe that the vast majority of the Irish population adhere to a faith and consider that, consequently, they might take offence to religious advertisement on radio. Historically those of different religions have not always lived harmoniously in Ireland. Accordingly, some restrictions on the expression of matters of religion are necessary in order to reconcile the interests of various religious groups and ensure that everyone’s beliefs are respected. The Government relies on the views expressed by the Supreme Court about the State’s choice to prohibit broadcasting advertisements on three matters which had proved to be extremely divisive in Irish society.

Moreover, the Government maintain that the State is accorded a large margin of appreciation in deciding on the appropriate measure to meet the legitimate aims sought to be achieved since the domestic authorities are best placed to decide on the necessity of the particular measure and since the assessment in this case concerns morals and the religious sensibilities of others. The High and Supreme Courts correctly applied the above principles in deciding that the relevant statutory provision was a proportionate response.

The applicant considers that his being prevented from using his method of choice to advertise a religious event is clearly an interference with his Article 9 and 10 rights. He notes that the protection of Article 10 extends to ideas that “offend, shock or disturb” (Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, § 49).

As to the Government’s argument that the necessary neutrality of the broadcast media justified the statutory provision, the applicant points out that that argument presumes that any system of licensing broadcast media can control that media and impose conditions regarding the content of broadcasts which would not be compatible with the Convention if they were imposed on the print media. Such a principle would be, however, inconsistent with the principles laid down in Informationsverein Lentia and Others v. Austria judgment (of 24 November 1993, Series A no. 276).

The applicant argues that, in any event, it does not follow that the neutrality of the broadcast media would be undermined by the transmission of religious advertising. Much of the advertising broadcast is not commercial and the applicant gives some examples including advertising about smoking, alcohol consumption, the importance of voting and about referenda (of the Referendum Commission, whose adverts are excluded from the scope of section 10(3) of the 1988 Act) which have related to particularly sensitive issues.

As to the protection of the rights and sensitivities of others, the applicant points out that Ireland is religiously homogeneous being over 95% Roman Catholic and, unlike in Northern Ireland, there is no history of religious disharmony. In addition, he points out that broadcasts frequently relate to material dealing with controversial religious themes and the suggestion that listeners to a local radio would take offence at this innocuous advertisement stretches credulity. The applicant adds that, indeed, that local radio station knows its audience and would hardly willingly transmit an advertisement which it considered would be likely to offend its listeners.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under Articles 9 and 10 the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible.