July 31, 2012
This guest post was written by Gabrielle Guillemin* and is a re-blog from Inforrm’s Blog (original post here).
Earlier this month, the Grand Chamber of the European Court of Human Rights handed down judgment in Mouvement Raelien Suisse v Switzerland (Application no.16354/06). The case concerned the Swiss authorities’ refusal to allow a billboard campaign by the applicant movement on grounds that its activities (including the promotion of human cloning and sensual meditation) were immoral and contrary to public order. By a majority of 9 to 8, the Grand Chamber upheld the earlier Chamber judgment that the Swiss decision was within the margin of appreciation, among other things because the poster campaign was closer in its nature to commercial speech rather than political speech.
The case has a number of unusual features, not the least of which is the Raelian Movement itself, a non-profit organisation that seeks to make contact with extra-terrestrials. The Grand Chamber judgment also has implications for advertising and, in particular, the use of hyperlinks.
The Raelian Movement (sometimes known as the Raelian church) has long attracted controversy. Among its beliefs is the view that various religious figures including Jesus and Buddha were actually space aliens. It actively promotes geniocracy – a form of global political union governed by the most intelligent members of society. It has also courted media attention with its vigorous support for human cloning, including the establishment in 1997 of a company called Clonaid that purports to offer cloning services.
In 2001, the Movement applied to the Neuchatel police for an authorisation to conduct a poster campaign. In addition to promoting “The Message from Extraterrestrials” in large yellow characters above a picture of some extraterrestials, the poster also gave the address for the Movement’s website together with a phone number. The police and subsequently the local authorities consistently refused the request on the basis that the Movement was engaged in activities that were immoral and contrary to public order. These included its advocacy of geniocracy and sensual meditation.
The authorities noted that a court in the Canton of Fribourg had found that the Movement ‘theoretically’ advocated incest and paedophilia. In addition, the Raelien Movement’s website linked to the website of Clonaid, which offered cloning services contrary to Swiss law. Despite this objectionable content, however, the Swiss authorities had made no attempt to block or remove the Movement’s website. The Swiss branch of the Movement itself was lawfully registered in Switzerland.
In 2005, the Swiss courts upheld the authorities’ decision. Among other things, they noted that although the poster itself did not contain anything that was likely to offend the general public, it was nonetheless an invitation to visit the organisation’s website; therefore the content of the website also had to be examined. The court concluded that the refusal was justified because it was necessary to prevent the commission of acts constituting criminal offences under Swiss law, namely human cloning and sexual acts with children. Moreover, it was of great importance that the State should not make public space available which might otherwise give the impression that the State tolerated or approved of such conduct.
In January 2011, a Chamber of the ECtHR held that there had been no violation of Article 10 ECHR on the basis that the authorities had not overstepped their wide margin of appreciation in regulating of the extended use of public space. Indeed, the Chamber took the view that the poster’s advertisement of the Movement’s website would have multiplied the impact of the poster campaign.
Grand Chamber Judgment
By a majority of 9 to 8, the Grand Chamber concluded that there had been no violation of Article 10 ECHR. The Court made the point that the interference with the applicant organisation’s freedom of expression could be viewed both in terms of negative or positive obligations. It was undisputed that the ban on the poster campaign had a legal basis and pursued a legitimate aim. The crux of the matter was whether it was necessary in a democratic society.
The Grand Chamber noted that the case was unusual in that it did not so much concern a ban on the dissemination of certain ideas but rather a ban on the use of regulated facilities in public space, i.e. the use of billboards. It was also distinguishable from the use of private property for the purposes of collecting signatures for a petition (Appleby v United Kingdom, no. 44306/98, 6 May 2003) or the general prohibition on a ship entering the State’s territorial waters for campaigning purposes (Women on Waves v Portugal, no. 31276/05, 3 February 2009).
Next, the Grand Chamber noted that a wider margin of appreciation was generally available in matters liable to offend intimate personal convictions within the sphere of morals, or especially, religion (Murphy v Ireland, no.44179/98, ). It went on to consider that the nature of the speech at issue was more commercial than political. In particular, the Grand Chamber said:
“In the present case, the Court observes that it can be reasonably argued that the poster campaign in question sought mainly to draw the attention of the public to the ideas and activities of a group with a supposedly religious connotation that was conveying a message claimed to be transmitted by extraterrestrials, referring for this purpose to a website address. The applicant association’s website thus refers only incidentally to social or political ideas. The Court takes the view that the type of speech in question is not political because the main aim of the website in question is to draw people to the cause of the applicant association and not to address matters of political debate in Switzerland. Even if the applicant association’s speech falls outside the commercial advertising context – there is no inducement to buy a particular product – it is nevertheless closer to commercial speech than to political speech per se, as it has a certain proselytising function. The State’s margin of appreciation is therefore broader” .
The Grand Chamber further stressed that it could not
“interfere with the choices of the national and local authorities, which are closer to the realities of their country, for it would thereby lose sight of the subsidiary nature of the Convention system.”
The Grand Chamber agreed with the domestic authorities that since the poster clearly aimed at promoting the organisation’s website, it had to have regard to its content. The Grand Chamber then went on to endorse their conclusions, noting in particular that they had given detailed reasons for their decisions.
The Grand Chamber further rejected the applicant’s argument that the Chamber’s position was contradictory since the organisation was prohibited from disseminating its views using posters on the ground that it contained the address of its website, whereas the site itself had not been banned. While the Grand Chamber conceded that “it might perhaps have been disproportionate to ban the association itself or its website”, it considered that the restriction was proportionate since it was limited to the display of posters in public places. The organisation still had other means available to it to disseminate its views, including its website or the distribution of leaflets in the street .
The Grand Chamber concluded that there was “no serious reason” to substitute its own assessmentfor that of the domestic authorities, which had examined the question at issue “with care and in line with the principles laid down by the Court’s case-law”.
The decision of the Grand Chamber is a rather unfortunate precedent for freedom of expression in several respects, as is made clear by the powerful dissenting opinions of the 8 judges in the minority: Judges Tulkens, Sajo, Lazarova-Trajkovska, Bianku, Power-Forde, Vucinic, Yudkivska and Albuquerque.
One of the most striking aspects of this case is that the Court considered that the speech at issue was not political. The reason for this was that the main purpose of having the Movement’s website on the poster was to draw attention to the Movement’s cause rather than address matters of political debate in Switzerland. It was also closer to commercial speech because it had “a certain proselytising function”.
As is well-known, the margin of appreciation afforded to the domestic authorities is much wider in commercial matters than it is for political speech. The Court was quite right to consider that one of the purposes of the poster was to invite its viewers to visit its website. However, it was wrong to infer, as a consequence of this, that the speech at issue was not therefore political. Simply because an organisation seeks to promote its ideas through advertising or other non-commercial means of communication, does not necessarily entail that its purpose and message are commercial.
It would have been more logical for the Court to justify a wide margin of appreciation on the ground that the ideas promoted by the poster were contrary to Swiss morals and public order. Moreover, to say that the speech at issue was more commercial in nature ran counter the Swiss authorities’ finding that the Movement defended a certain global vision of the world, especially as regards its creation and the origin of various religions.
The Court’s finding that the ban on the poster campaign was proportionate because the Movement had other means of expressing its views, including its website, still fails to address the basic objection that the content of the organisation’s website and its links to other sites was the very reason for the ban on the poster in the first place. Ironically, if the poster had not contained the link to the website, it would not have been possible for the authorities to rely on its content as grounds to prohibit the poster.
Although the Court’s suggestion that a ban on the organisation’s website may have been a disproportionate is of some comfort, it remains deeply unsatisfactory that an organisation may be denied access to public billboards simply because its otherwise innocuous poster features the address of its website. It also seems out-of-touch with modern ways of advertising.
Even more disappointing was the Court didn’t seem to consider it necessary for the State to remain neutral when making a decision as to whether or not a particular entity should be given access to certain public facilities in order to disseminate its views. The fact that the State did not want to be seen to endorse the Movement’s views was beside the point and indeed, contrary to the protection of freedom expression from state censorship.
Finally, it is hard not to view the Court’s approach in this case as being influenced, at least to some degree, by the recent Brighton Declaration, in which the Court was encouraged to give “great prominence “ to the principles of subsidiarity and the margin of appreciation. Fortunately, the robust dissenting opinions show that the apparent sentiment of deference to the decisions of the domestic authorities is not shared by all members of the Court. As the dissenters point out, the fact that the reasons put forward by the domestic courts were ‘relevant’ does not necessarily mean that they were ‘sufficient’. Indeed, if all it took to comply with the Convention was a ‘detailed judicial review’ by the highest court in the land, it is hard to imagine any such case that would fail to comply with this requirement.
Showing respect for the margin of appreciation of the domestic authorities is an important feature of the Convention system. However, for the Court to remain the true guardian of the Convention, it must also tell the domestic courts when they get it wrong. Mouvement Raelien Suisse v Switzerland should have been such case.