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Freedom of Expression: Defining the Limits for Broadcasters

Published online by Cambridge University Press:  31 July 2008

Mark Hill
Mark Hill
Affiliation:
Honorary Fellow of the Centre for Law and Religion, Cardiff University, and Chancellor of the Diocese of Chichester
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Extract

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On 10 July 2003, the European Court of Human Rights in Strasbourg delivered a significant judgment concerning the qualified nature of the right of freedom of expression enunciated in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The previous May saw the House of Lords deliver a judgment on a similar matter. The former related to the resurrection; the latter was about video footage of unborn fœtuses. Each is illuminating and may prove of wider application.

Type
Comment
Information
Ecclesiastical Law Journal , Volume 7 , Issue 35 , July 2004 , pp. 466 - 470
Copyright
Copyright © Ecclesiastical Law Society 2004

References

1 Murphy v Ireland 10 July 2003 (Application No 44179/98)Google Scholar

2 R (on the application of ProLife Alliance) v British Broadcasting Corporation [2003] 2 All ER 977, HL.Google Scholar

3 This comment piece is based upon an earlier paper commissioned from the author by the Austrian Archive for Law & Religion.Google Scholar

4 Since the court considered that the issue primarily concerned the regulation of Mr Murphy's means of expression and not his profession or manifestation of his religion, the engagement of Article 9 was not also considered.Google Scholar

5 This principle was recently reiterated in the English Court of Appeal in Redmond Bate v Director of Public Prosecutions (2000) 7 BHRC 375, CA.Google Scholar

6 This includes in the context of religious beliefs the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is gratuitously offensive and profane in regard to objects of veneration: see Otto-Preminger Institut v Austria (20 September 1994), (1995) 19 EHRR 34.Google Scholar

7 See Wingrove v United Kingdom (25 November 1996). There is 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 advertisement considered offensive (Spain) and certain have no legislative restriction (the Netherlands).Google Scholar

8 The court stated, ‘What is likely to cause substantial offence to persons of a particular religious persuasion will vary significantly from time to time and from place to place, especially in an era characterised by an ever growing array of faiths and denominations. 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 with regard to the rights of others as well as on the “necessity” of a “restriction” intended to protect from such material those whose deepest feelings and convictions would be seriously offended’. This margin of appreciation distinguished the present case from Vgt Verein gegen Tierfabriken v Switzerland (2001) 10 BHRC 473.Google Scholar

9 Acknowledged by the court as having a more immediate, invasive and powerful impact than the print media on the passive recipient: Jersild v Denmark (23 September 1994).Google Scholar

10 For example documentaries, debates, films, discussions, and live coverage of religious events and occasions.Google Scholar

11 Note the duty of objectivity and impartiality under section 18 of the Broadcasting Authority Act 1960.Google Scholar

12 R (on the application of ProLife Alliance) v British Broadcasting Corporation [2003] 2 All ER 977, HL.Google Scholar

13 R (on the application of ProLife Alliance) v British Broadcasting Corporation [2002] 3 WLR 1080; [2002] 2 All ER 756, CA (Simon Brown, Laws and Jonathan Parker LJJ).Google Scholar

14 There is no right to broadcast per se. See the manner in which the European Court of Human Rights rejected as manifestly unfounded complaints of an Austrian that he had not been afforded enough time on television: Haider v Austria (1995) 83 DR 66.Google Scholar

15 At paragraph 8.Google Scholar

16 It was therefore unnecessary to consider the problematic decision of the European Court of Human Rights in Vgt Verein gegen Tierfabriken v Switzerland (2001) 10 BHRC 473 in an action brought by an animal rights association.Google Scholar

17 Court of Appeal at paragraph 37.Google Scholar

18 To borrow from Lord Hoffmann at paragraph 80.Google Scholar

19 This concept was the subject of detailed academic study by the European American Law and Religion Consortium at its conference ‘The Permissible Scope of Legal Limitations on the Freedom of Religion and Belief’ held in Budapest. Hungary on 4–8 December 2003, reported at p 474 in this Issue.Google Scholar