March 13, 2018
This guest post was written by Ingrida Milkaite, Ghent University *
On 30 January 2018 the European Court of Human Rights (the ECtHR, the Court) found a violation of Article 10 of the ECHR in Sekmadienis Ltd. v Lithuania. The main issue at hand was the question whether the national authorities provided ample explanation, consisting of relevant and sufficient reasons, as to why certain advertisements were contrary to public morals.
In autumn 2012, the applicant company Sekmadienis Ltd., an advertising agency (meaning “Sunday” in Lithuanian), ran an advertising campaign for a clothing line created by a Lithuanian designer in order to promote his upcoming fashion show. It consisted of three posters which were displayed in public areas as well as on the designer’s website (§ 6). The advertisements featured Jesus and Mary wearing jeans and a white dress. They also had halos around their heads and some accessories (including tattoos). The posters bore the following captions: “Jesus, what trousers!”, “Dear Mary, what a dress!” and “Jesus [and] Mary, what are you wearing!” (§ 7, 8, 9). At the end of 2012, the State Consumer Rights Protection Authority (SCRPA) received five separate complaints concerning the ads and the lengthy legal proceedings began.
Pictures taken from the Lithuanian Human Rights Monitoring Institute website.
Having received the complaints, the SCRPA first consulted the Lithuanian Advertising Agency (LAA) which decided that “the advertisements were possibly in breach of Article 4 § 2 (1) of the Law on Advertising as violating public morals.” The LAA suggested avoiding the possibility of offending people’s dignity as the advertisements could have led to “dissatisfaction of religious people” and could be seen as “humiliating and degrading” since “religious people always react very sensitively to any use of religious symbols or religious personalities in advertising” (§ 11). Consequently, the SCRPA consulted the State Inspectorate of Non-Food Products which adopted a violation-of-law report stating that the ads infringed the Law on Advertising as they were contrary to public morals – the ads used “religious symbols in a disrespectful and inappropriate manner” (§ 13, 16). Notably, the SCRPA then contacted the Lithuanian Bishops Conference which expressed its opinion that the advertisements encouraged “a frivolous attitude towards the ethical values of the Christian faith” and promoted “a lifestyle which is incompatible with the principles of a religious person.” The Conference also received a letter of complaint from around a hundred religious individuals concerning the advertisements (§ 16, 17). Consequently, the SCRPA found a violation of the Law on Advertising and ordered the applicant company to pay a fine of 2000 Lithuanian litai (around 580 euros).
Sekmadienis Ltd. brought a complaint against the decision before the Vilnius Regional Administrative Court. The company claimed, in short, that the depicted persons were not related to religious symbols; the featured expressions were widely used emotional interjections in spoken Lithuanian and were used as wordplay; the law did not prohibit the use of religious symbols in commercial advertising; the ads were not offensive; the letter of complaint was not sufficient to evaluate whether the majority of religious people were in fact offended; and the advertisements constituted a product of artistic expression (§ 20, 21, 22). Earlier, the company also stressed that there is no state religion in Lithuania and the interests of only one religious group could not be equated to those of the whole society (§ 14).
The court of the first instance dismissed the complaint considering that all the circumstances were evaluated correctly and adding that the advertisements were prohibited since they distorted the main purpose of a religious symbol (§ 23). The Supreme Administrative Court of Lithuania (SACL) dismissed the appeal holding that the advertisements were “clearly contrary to public morals.” It is interesting to note, however, that the President of the SACL invoked an exceptional provision of administrative law allowing for the reopening of proceedings where there is demonstrable evidence that a grave error of law might have occurred (§ 40, 41). This application to reopen proceedings was, however, refused by a different panel of the SACL. It argued that proceedings could only be reopened in cases of a manifest error in the application or implementation of the law and “not when it was merely possible to interpret that law differently” (§ 27).
Judgment of the ECtHR
The European Court of Human Rights, first and foremost, referred to the Lithuanian Constitution, the Rulings of the Constitutional Court of Lithuania, the national Law on Advertising, the Code of Advertising Ethics and the Law on Religious Communities and Associations which specifies that Lithuania recognises nine traditional religious communities and associations. The Court also listed the most important international documents in the context of the case – the International Covenant on Civil and Political Rights (articles 19 and 20), the UN Human Rights Committee’s General Comment No. 34, according to which “it would be impermissible for <…> laws to discriminate in favour of or against one or certain religions <…> over another, or religious believers over non-believers” (§ 48). In addition, the Court also referred to a report by the Venice Commission stressing that “it must be possible to criticise religious ideas, even if such criticism may be perceived by some as hurting their religious feelings” (§ 49).
During the proceedings at the ECtHR, the Lithuanian Government stated that, most notably, the interference was in accordance with the law (which, however, was amended during the national proceedings to include an explicit prohibition on the expression of contempt for religious symbols in advertising). It also provided arguments on the proportionality and necessity to protect public morals and the rights of others (namely, the right of religious people not to be insulted on the grounds of their religion), the margin of appreciation and the absence of an international or European consensus on the contents of morality (§ 53-55). The Government representative also stressed that the majority, around 77 percent, of the Lithuanian population indicated themselves as belonging to the Christian faith. With regard to that, the applicant company stated that many Lithuanians considered themselves religious only in a “formal manner” and referred to the country’s constitutional secularism (§ 61).
In terms of the interference being prescribed by law, the Court noted that
“not every use of religious symbols in advertising would violate public morals <…>. [T]he applicant company’s case was the first in which the domestic courts applied the concept of public morals to the use of religious symbols in advertising <…>” (§ 67).
In fact, the Court considered that “the issue with the quality of law [was] secondary to the question of the necessity of the impugned measure” and decided that it was not necessary to establish that the interference was prescribed by law in the present case (§ 68). The Court stated that
“it [had] doubts as to whether the interpretation given by the domestic courts in the present case <…> could reasonably have been expected. The Court [could not] stay blind to the fact that, while the applicant company’s case was still ongoing, the national authorities felt the need to amend the Law on Advertising in order to establish an explicit prohibition on advertising which expressed “contempt for religious symbols” <…>.
It [took] note of the applicant company’s argument that such an amendment would not have been necessary had the prohibition of inappropriate use or contempt for religious symbols been established in [law] with sufficient foreseeability <…>” (§ 67, 68).
The Court agreed that the interference pursued two legitimate aims, that is, the protection of morals arising from the Christian faith and the right of religious people not to be insulted on the grounds of their beliefs (§ 69).
In terms of the margin of appreciation, the Court stressed that there is little scope for the restriction on political speech or on the debate on matters of public interest. Yet, a wider margin of appreciation is generally available to States in cases related to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. Similarly, the States also have a broad margin of appreciation in the regulation of speech in commercial matters or advertising (§ 73). However, while broader, the margin of appreciation in such cases is not unlimited. The Court decided that the advertisement did indeed resemble religious figures, they had a commercial purpose and did not contribute to any public debate on matters of general interest (§ 76). According to the Court, not every use of religious symbols in advertising would violate [Lithuanian law], which [meant] that at least some explanation as to why the particular form of expression chosen by the applicant company was contrary to public morals was required by domestic law as well. However, the Court [could not] accept the reasons provided by the domestic courts and other authorities as relevant and sufficient. The authorities considered that the advertisements were contrary to public morals because they had used religious symbols “for superficial purposes”, had “distort[ed] [their] main purpose” and had been “inappropriate” <…>. In the Court’s view, such statements were declarative and vague, and did not sufficiently explain why the reference to religious symbols in the advertisements was offensive <…> (§ 78, 79).
Moreover, the Court took particular issue with the reasoning provided by the national authorities when adopting the challenged decisions:
The SCRPA held that the advertisements “promot[ed] a lifestyle which [was] incompatible with the principles of a religious person” <…>, without explaining what that lifestyle was and how the advertisements were promoting it, nor why a lifestyle which is “incompatible with the principles of a religious person” would necessarily be incompatible with public morals. The Court observed that even though all the domestic decisions referred to “religious people”, the only religious group which had been consulted in the domestic proceedings had been the Roman Catholic Church <…>, despite the presence of various other Christian and non-Christian religious communities in Lithuania <…>. In this connection, the Court note[d] that the Constitutional Court of Lithuania [had] held that “no views or ideology may be declared mandatory and thrust on an individual” and that the State “does not have any right to establish a mandatory system of views” <…>. It also [drew] attention to the position of the [UN] Human Rights Committee that limitations of rights for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition <…> (§ 80).
The Court also noted that the authorities “gave significant weight” to the letter written by approximately a hundred religious people complaining about the advertisements. The Court “reiterate[d] that freedom of expression also extends to ideas which offend, shock or disturb <…>. It also reiterate[d] that in a pluralist democratic society those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith” (§ 81). Accordingly, the Court concluded that “the domestic authorities failed to strike a fair balance between, on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression” (§ 83).
Judge Vincent A. De Gaetano (Malta) expressed a concurring opinion mainly stressing “the very narrow ground on which this violation [was] based.” According to the Judge, the main issue of the case was the reasoning of the national courts and authorities but “[t]his judgment does not give carte blanche to the use of religious symbols, whatever the medium, context or message intended or tending to be conveyed, whether directly or otherwise” (§ 1). Judge De Gaetano also noted that the advertisements were clearly inoffensive and did not represent religious figures at all since the man and the woman depicted in the ads were wearing tattoos which “should have been indicative that those figures could not be considered as representations of the historical Jesus Christ or the Virgin Mary – see Leviticus 19:28” (§ 1).
The right to protection of religious feelings as an aspect of religious freedom is protected by Article 9 ECHR. In cases such as the present one, the national authorities should balance the right to freedom of expression and the right to have one’s religious feelings protected very diligently and provide relevant and sufficient reasons as to why one right is favoured over the other. Such balancing becomes especially complex in the context of commercial advertising. However, irrespective of the context, one of the duties and responsibilities, that the exercise of one’s freedom of expression carries with it, is
“the general requirement to ensure the peaceful enjoyment of the rights guaranteed under article 9 ECHR to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane” (§ 74).
This has been previously established by the Court in such cases as Otto Preminger-Institut v. Austria, § 49, Murphy v. Ireland, § 65; İ.A. v. Turkey, § 24, Wingrove v. the United Kingdom, § 52, Giniewski v. France, § 43 and Klein v. Slovakia, § 47. Therefore, it may be considered necessary to punish improper attacks on objects of religious veneration (İ.A. v. Turkey, § 24).
Having regard to this particular case, it is quite difficult to disagree with Judge De Gaetano’s statement that the reasons provided for the final support of the national decision were “totally detached from reality” (§ 2, Concurring Opinion). This case, as “text-book” as it seems, is a strong reminder of the persisting need for the Court’s guidance in the context of challenging balancing cases. The judgement clarifies the very complex relationship between the protection of freedom of expression and public morals in cases where the national authorities have a broader margin of appreciation, especially in the context of religion, advertising and commercial matters. The ruling provides more clarity to the undefined notion of “public morals” and once again stresses the need for well-reasoned balancing. As emphasised by Judge De Gaetano, this judgement does not mean that religious symbols can always be used in commercial advertising – it is crucial that public authorities evaluating their “morality” give proper and sufficient reasons explaining whether and how exactly certain use of religious symbols offends religious people, and especially the public morals which rarely derive from just one (religious) tradition. In conclusion, the Court, yet again, reminds the Contracting States of the approach already adopted in 1976:
Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. <…> [I]t 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” (§70, Handyside v. United Kingdom, § 49).
* Ingrida Milkaite is a doctoral student in the research group Law & Technology at Ghent University. She is working on the research project “A children’s rights perspective on privacy and data protection in the digital age: a critical and forward-looking analysis of the General Data Protection Regulation and its implementation with respect to children and youth” (Ghent University, Special Research Fund).