CASE OF SEKMADIENIS LTD. v. LITHUANIA
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Vincent A. De Gaetano;Georges Ravarani
5. The applicant company is a limited liability company established under Lithuanian law with its registered office in Vilnius. 6. In September and October 2012, for about two weeks, the applicant company ran an advertising campaign introducing a clothing line by designer R.K. The campaign featured three visual advertisements which were displayed on twenty advertising hoardings in public areas in Vilnius and on R.K.’s website (hereinafter “the advertisements”). 7. The first of the three advertisements showed a young man with long hair, a headband, a halo around his head and several tattoos wearing a pair of jeans. A caption at the bottom of the image read “Jesus, what trousers!” (Jėzau, kokios tavo kelnės!). 8. The second advertisement showed a young woman wearing a white dress and a headdress with white and red flowers in it. She had a halo around her head and was holding a string of beads. The caption at the bottom of the image read “Dear Mary, what a dress!” (Marija brangi, kokia suknelė!). 9. The third advertisement showed the man and the woman together, wearing the same clothes and accessories as in the previous advertisements. The man was reclining and the woman was standing next to him with one hand placed on his head and the other on his shoulder. The caption at the bottom of the image read “Jesus [and] Mary, what are you wearing!” (Jėzau Marija, kuo čia apsirengę!). 10. On 28 September and 1 October 2012 the State Consumer Rights Protection Authority (Valstybinė vartotojų teisių apsaugos tarnyba – hereinafter “the SCRPA”) received four individual complaints by telephone concerning the advertisements. The individuals complained that the advertisements were unethical and offensive to religious people. 11. After receiving those complaints, the SCRPA asked the Lithuanian Advertising Agency (Lietuvos reklamos biuras – hereinafter “the LAA”), a self-regulation body composed of advertising specialists, to give an opinion on the advertisements. On 2 October 2012 a seven-member commission of the LAA decided by five votes to two that the advertisements breached the General Principles and Articles 1 (Decency) and 13 (Religion) of the Code of Advertising Ethics (see paragraph 37 below). The LAA commission held: “In the commission’s view, the advertisements may lead to dissatisfaction of religious people. [The advertisements might be seen as] humiliating and degrading people because of their faith, convictions or opinions. Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising, so we suggest avoiding the possibility of offending their dignity. In this case the game has gone too far. (Šiuo atveju užsižaista per daug.) Humour is understandable but it can really offend religious people. We suggest finding other characters for communicating the uniqueness of the product. ... It is recommended ... to have regard for the feelings of religious people, to take a more responsible attitude towards religion-related topics in advertising, and to stop the dissemination of the advertisements or change the characters depicted therein.” 12. On 8 October 2012 the SCRPA received a complaint from a law firm in Kaunas concerning the advertisements. The complaint stated that the advertisements degraded religious symbols, offended the feelings of religious people and created “a danger that society might lose the necessary sense of sacredness and basic respect for spirituality” (kyla pavojus visuomenei nustoti būtinos sakralumo pajautos ir elementarios pagarbos dvasingumui). It asked the SCRPA to fine the applicant company and to order it to remove the advertisements as being contrary to public order and public morals. 13. The SCRPA forwarded the aforementioned complaints and the LAA opinion (see paragraphs 10-12 above) to the State Inspectorate of Non-Food Products (Valstybinė ne maisto produktų inspekcija – hereinafter “the Inspectorate”). On 9 October 2012 the Inspectorate informed the applicant company that the advertisements were possibly in violation of Article 4 § 2 (1) of the Law on Advertising as being contrary to public morals (see paragraph 34 below). It stated: “The Inspectorate, having examined the material presented to it, is of the view that the advertisements use religious symbols in a disrespectful and inappropriate manner. Religious people always react very sensitively to any use of religious symbols or religious personalities in advertising. The use of religious symbols for superficial purposes may offend religious people. Advertisements must not include statements or visuals which are offensive to religious feelings or show disrespect for religious people.” 14. The applicant company submitted written explanations to the Inspectorate. It firstly submitted that in the advertisements the word “Jesus” was used not as an address to a religious personality but as an emotional interjection which was common in spoken Lithuanian, similar to “oh my God!”, “oh Lord!”, “God forbid!” (Dievuliau, Viešpatie, gink Dieve) and many others. The applicant company argued that, because of its common use to express one’s emotions, that word had lost its exclusively religious significance. It further submitted that the people depicted in the advertisements could not be unambiguously considered as resembling religious figures, but even if they were, that depiction was aesthetically pleasant and not disrespectful, unlike various kitschy and low-quality religious items typically sold in markets. It further contended that, in the absence of a State religion in Lithuania, the interests of one group – practising Catholics – could not be equated to those of the entire society. It lastly submitted that the LAA opinion had been based on emotional assessment but not on any proven facts, as demonstrated in particular by such phrases as “religious people always react very sensitively to any use of religious symbols or religious personalities in advertising” or “the game has gone too far” (see paragraph 11 above). The applicant company therefore argued that the advertisements had not breached any law and that holding to the contrary would be detrimental to the right to freedom of thought and expression, protected by the Constitution. 15. On 27 November 2012 the Inspectorate drew up a report of a violation of the Law on Advertising against the applicant company. The report essentially repeated the contents of the Inspectorate’s previous letter to the applicant company (see paragraph 13 above), adding that “advertisements of such nature offend[ed] religious feelings” and “the basic respect for spirituality [was] disappearing” (nelieka elementarios pagarbos dvasingumui). It was forwarded to the SCRPA. 16. On 29 January 2013 the SCRPA asked the Lithuanian Bishops Conference (Lietuvos vyskupų konferencija), which is the territorial authority of the Roman Catholic Church in Lithuania, for an opinion on the advertisements. On 5 March 2013 the latter submitted the following opinion: “Religious symbols are not just simple signs, pictures or logos. In the Christian tradition, a religious symbol is a visible sign representing the invisible sacred reality. The advertisements ... make both visual and written references to religious sacred objects, such as a rosary, the names of Jesus and Mary, and the symbol of the Pietà. Christ and Mary, as symbols of faith, represent certain moral values and embody ethical perfection, and for that they are examples of appropriate behaviour and desirable life for the faithful. The inappropriate depiction of Christ and Mary in the advertisements encourages a frivolous attitude towards the ethical values of the Christian faith, and promotes a lifestyle which is incompatible with the principles of a religious person. The persons of Christ and Mary are thereby degraded as symbols of the sacredness of the Christian faith. For that reason, such depiction offends the feelings of religious people. The degrading and distortion of religious symbols by purposely changing their meaning is contrary to public morals, especially when it is done in pursuit of commercial gain, and must therefore not be allowed, in line with Article 4 of the Law on Advertising.” 17. On 21 March 2013 the SCRPA held a meeting in which representatives of the applicant company, the State Inspectorate of NonFood Products and the Lithuanian Bishops Conference participated. A representative of the Bishops Conference repeated its previous position (see paragraph 16 above) and stated that it had received complaints from about a hundred religious individuals concerning the advertisements. Representatives of the applicant company also expressed essentially the same position as in their previous submissions to the Inspectorate (see paragraph 14 above). They in particular argued that the people depicted in the advertisements differed in several aspects from the depiction of Jesus and Mary in religious art, and that an educated and cosmopolitan society would not equate every picture with such art. They further submitted that the advertisements had relied on wordplay and they had been meant to be funny but not to offend anyone. 18. On the same day the SCRPA adopted a decision against the applicant company concerning a violation of Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). It noted that the concept of “public morals” was not defined in any legal instruments, but it necessarily implied respect for the rights and interests of others. It also stated that “advertising must be tasteful and correspond to the highest moral standards” and that “advertising which might humiliate or degrade people because of their faith, convictions or opinions must be considered immoral and unacceptable”. The SCRPA considered that “the elements of the advertisements taken together – the persons, symbols and their positioning – would create an impression for the average consumer that the depicted persons and objects were related to religious symbols”. It further stated: “When determining whether the use of religious symbols in the present case was contrary to public morals, [the SCRPA] notes that religious people react very sensitively to any use of religious symbols or religious persons in advertising, especially when the chosen form of artistic expression is not acceptable to society – for example, the bodies of Jesus and Mary are adorned with tattoos. [The SCRPA] also agrees with the Lithuanian Bishops Conference that the use of religious symbols for commercial gain in the present case exceeds the limits of tolerance. [The SCRPA] considers that using the name of God for commercial purpose is not in line with public morals. With that in mind, [the SCRPA] notes that the inappropriate depiction of Christ and Mary in the advertisements in question encourages a frivolous attitude towards the ethical values of the Christian faith, promotes a lifestyle which is incompatible with the principles of a religious person, and that way the persons of Christ and Mary are degraded as the sacred symbols of Christianity ... In addition, the inappropriate depiction of Christ and Mary in the advertisements was not only likely to offend the feelings of religious people but actually offended them because [the SCRPA] has received complaints about them ... and the Lithuanian Bishops Conference has received a letter expressing dissatisfaction of the [nearly a hundred] religious individuals, which demonstrates that the feelings of religious people have been offended. It must be emphasised that respect for religion is undoubtedly a moral value. Accordingly, disrespecting religion breaches public morals.” 19. Accordingly, the SCRPA concluded that the advertisements had breached Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). When determining the penalty, it took into account several circumstances: the advertisements had been displayed in public places and must have reached a wide audience, and there had been complaints about them; at the same time, the advertisements had only been displayed for a few weeks and only in the city of Vilnius; the applicant company had stopped displaying them after it had been warned by the authorities, and it had cooperated with the SCRPA; it had been the first such violation committed by the applicant company. As a result, the applicant company was given a fine of 2,000 Lithuanian litai (LTL – approximately 580 euros (EUR); see paragraph 36 below). 20. The applicant company brought a complaint concerning the SCRPA’s decision (see paragraphs 18 and 19 above) before an administrative court. It argued that the persons and objects shown in the advertisements were not related to religious symbols: neither the characters themselves nor their clothes, positions or facial expressions were similar to the depiction of Jesus Christ and the Virgin Mary in religious art; the only physical similarity was the long hair of the man but every man with long hair could not be presumed to be a depiction of Jesus. The applicant company also submitted that the expressions “Jesus!”, “Dear Mary!” and “Jesus [and] Mary!” were widely used in spoken language as emotional interjections, and the advertisements had used them for the purpose of wordplay, not as a reference to religion. 21. The applicant company further argued that the Law on Advertising did not explicitly prohibit all use of religious symbols in advertising but only when such use may offend the sentiments of others or incite hatred (see paragraph 34 below). It submitted that the advertisements were not offensive or disrespectful in any way, and that the SCRPA had not justified why they “exceeded the limits of tolerance” or why “using the name of God for commercial purposes [was] not in line with public morals” (see paragraph 18 above). The applicant company also submitted that complaints by a hundred individuals (see paragraphs 10, 12 and 17 above) were not sufficient to find that the majority of religious people in Lithuania had been offended by the advertisements. 22. Lastly, the applicant company submitted that the advertisements were a product of artistic activity and were therefore protected freedom of expression, guaranteed by the Constitution. 23. On 12 November 2013 the Vilnius Regional Administrative Court dismissed the applicant company’s complaint. The court considered that the SCRPA had correctly assessed all the relevant circumstances (see paragraphs 18 and 19 above), and concluded that “the form of advertising used by [the applicant company was] prohibited because it distort[ed] the main purpose of a religious symbol (an object of religion) respected by a religious community – that purpose being to refer to a deity or to holiness”. 24. The applicant company appealed against that decision. In its appeal it repeated the arguments raised in its initial complaint (see paragraphs 2022 above). It also provided four examples of other advertisements for various products which had depicted religious figures, religious symbols and Catholic priests – one of those was an advertisement for beer depicting a wooden figure of Jesus, common in the Lithuanian folk art (Rūpintojėlis). The applicant company argued that such examples strengthened its argument that the use of religious symbols in advertising was not prohibited as such, unless it was offensive or hateful – and it submitted that its advertisements did not fall into either of those categories, as they did not include any slogans or visuals directly degrading religious people or inciting religious hatred. 25. On 25 April 2014 the Supreme Administrative Court dismissed the applicant company’s appeal. The court held: “The entirety of the evidence in the present case gives grounds to conclude that the advertisements displayed by [the applicant company] are clearly contrary to public morals, because religion, as a certain type of world view, unavoidably contributes to the moral development of the society; symbols of a religious nature occupy a significant place in the system of spiritual values of individuals and the society, and their inappropriate use demeans them [and] is contrary to universally accepted moral and ethical norms. The form of advertising [chosen by the applicant company] does not conform to good morals and to the principles of respecting the values of the Christian faith and its sacred symbols, and [the advertisements] therefore breach Article 4 § 2 (1) of the Law on Advertising. ... In its appeal [the applicant company] alleges that there are no objective grounds to find that the advertisements offended the feelings of religious people ... It must be noted that the case file includes a letter by almost one hundred religious individuals, sent to the Lithuanian Bishops Conference, expressing dissatisfaction with the advertisements in question. This refutes [the applicant company’s] arguments and they are thereby dismissed as unfounded.” 26. On 21 August 2014 the President of the Supreme Administrative Court asked that court to examine whether there were grounds for reopening the proceedings in the applicant company’s case (see paragraphs 40 and 41 below). He considered that it was necessary to assess whether the decision of 25 April 2014 (see paragraph 25 above) had adequately addressed the applicant company’s arguments related to the permissible restrictions of freedom of expression, guaranteed by the Constitution and various international legal instruments, and whether it had properly examined the necessity and proportionality of restricting that freedom, in line with the relevant case-law of the European Court of Human Rights. The President submitted that if any such shortcomings were identified, that would give grounds to believe that the Supreme Administrative Court had incorrectly applied the substantive law and that its case-law was developing in an erroneous direction. 27. On 20 November 2014 a different panel of the Supreme Administrative Court refused to reopen the proceedings in the applicant company’s case. It emphasised that proceedings which had been concluded by a final court decision could be reopened only when there had been a manifest error in the interpretation or application of the law, and not when it was merely possible to interpret that law differently. 28. The court observed that the freedom of expression, guaranteed by the Constitution, was not absolute and could be restricted (see paragraphs 31 and 42-44 below), and one of the permissible restrictions was provided in Article 4 § 2 (1) of the Law on Advertising (see paragraph 34 below). It stated that the decision of 25 April 2014 (see paragraph 25 above) had not denied the applicant company’s right to freedom of expression, but it had sought to balance that right against public morals, and the latter had been given priority. The court considered that the decision of 25 April 2014 had not denied the essence of the applicant company’s right and had not been manifestly disproportionate because the fine had been close to the minimum provided in law (see paragraph 36 below), so there were no grounds to find that the law had been interpreted or applied incorrectly. 29. The court further observed that the advertisements had had a purely commercial purpose and had not been intended to contribute to any public debate concerning religion or religious symbols. Referring to the judgments of the European Court of Human Rights in Müller and Others v. Switzerland (24 May 1988, § 35, Series A no. 133) and OttoPremingerInstitut v. Austria (20 September 1994, § 50, Series A no. 295A), it stated that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society and that even within a single country such conceptions might vary; for that reason it was not possible to arrive at a comprehensive definition of what constituted a permissible interference with the exercise of the right to freedom of expression where such expression was directed against the religious feelings of others, and a certain margin of appreciation was therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference. The Supreme Administrative Court considered that the panel which had adopted the decision of 25 April 2014 had taken into account the fact that Catholicism was the religion of a very big part of the Lithuanian population and that the use of its most important symbols in the advertisements, which distorted their meaning, offended the feelings of religious people. 30. The Supreme Administrative Court thus concluded that the decision of 25 April 2014 had adequately justified the restriction of the applicant company’s freedom of expression and had correctly applied Article 4 § 2 (1) of the Law on Advertising.