CASE OF MURPHY v. IRELAND
No violation of Art. 10
Georg Ress
7. The applicant was born in 1949 and lives in Dublin. He is a pastor attached to the Irish Faith Centre, a bible based Christian ministry in Dublin. 8. 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.” 9. The radio station was prepared to broadcast the advertisement. However, 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”). This ruling did not affect the later transmission of the video by satellite. 10. The applicant applied for leave to take judicial review proceedings. He cited the IRTC and the Attorney General as respondents and submitted 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, that provision was unconstitutional. 11. 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 further 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, it found that section 10(3) was a reasonable limitation on the right to communicate and that there were good reasons in the public interest for the ban. 12. 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.” 13. The Supreme Court rejected the applicant's appeal by judgment dated 28 May 1998. The judgment began by noting that: “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.” 14. The Supreme Court considered that religion was a private and a public affair and that the impugned provision was a restriction of the applicant's right freely to communicate and of his right to freedom of expression (Articles 40(3) and 40(6)(1) of the Constitution, respectively) which rights could be limited in the interests of the common good. The court cited with approval previous case-law 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.” 15. The court 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 case-law, 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 is 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.” 16. 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 and the applicant's argument that it would have been possible to introduce a more selective administrative system whereby inoffensive religious advertisements would be permitted, the Supreme Court noted: “No doubt this is true. But [parliament] may well have decided that it would be inappropriate to involve agents of the State in deciding which advertisements, in this sensitive area, would be likely to cause offence and which not.” 17. The Supreme Court went on to conclude that: “It therefore appears to the court that the ban on religious advertising contained in section 10(3) of the 1988 Act is rationally connected to the objective of the legislation and is not arbitrary or unfair or based on irrational considerations. It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation.” 18. In any event, once the impugned provision was broadly within the competence of parliament and parliament had respected the principle of proportionality, the Supreme Court indicated that it was not for it 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. 19. Article 40 of the Constitution 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.” 20. 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.” 21. The 1960 Act was enacted to, inter alia, enable an Authority to be established for the purpose of providing a national television and sound broadcasting service. The national radio and television broadcaster (“RTE”) was also established. Section 20(4) of the 1960 Act provided as follows: “The Authority shall not accept any advertisement which is directed towards any religious or political end or has any relation to any industrial dispute.” 22. When introducing this provision the Minister explained to Seanad Éireann (the Senate) the rationale of this provision: “If advertisements directed towards these ends were permitted the Authority would have to accept advertisements from any religious group, including advertisements which the majority of viewers might consider very objectionable and offensive. Therefore, the only sound policy is not to permit any advertisements directed towards religious ends to be broadcast: otherwise the Authority would be placed in a very difficult position. There will of course be religious programmes as there have been on Radio Eireann, and appeals for funds for charitable purposes, but these are quite different and distinct from paid advertisements directed towards religious ends, and I think the policy enshrined in this subsection is the correct one.” 23. Section 18 of the 1960 Act is entitled “Impartiality” and provides as follows: “(1) It shall be the duty of the Authority to secure that, when it broadcasts any information, news or feature which relates to matters of public controversy or is the subject of current public debate, the information, news or feature is presented objectively and impartially and without any expression of the Authority's own views. (2) Nothing in this section shall prevent the Authority from transmitting political party broadcasts.” 24. The 1988 Act was enacted to establish the Independent Radio and Television Commission (“IRTC”) having the function of entering into contracts for the provision of sound broadcasting and a television programme service additional to the services already provided by the national broadcaster, RTE. 25. Section 9 is entitled “Duty of sound broadcasting contractor in relation to programmes” and provides as follows: “(1) Every sound broadcasting contractor shall ensure that – (a) all news broadcast by him is reported and presented in an objective and impartial manner and without any expression of his own views; (b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of his own views: Provided that should it prove impracticable in relation to a single broadcast to apply this paragraph, two or more related broadcasts may be considered as a whole, if the broadcasts are transmitted within a reasonable period of each other; ... (2) Nothing in subsection (1) (a) or (1) (b) shall prevent a sound broadcasting contractor from transmitting political party broadcasts: Provided that a sound broadcasting contractor shall not, in the allocation of time for such broadcasts, give an unfair preference to any political party.” 26. Section 10(3) of the 1988 Act applied to independent radio and television broadcasters the same prohibition applied to RTE (by section 20(4) of the 1960 Act). Section 10(3) provided 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.” 27. This bill, never passed, proposed amending section 10(3) of the 1988 Act. This proposal was prompted by the Supreme Court's judgment in the present case and a subsequent prohibition of an advertisement by the Irish Catholic newspaper pursuant to that provision. During the parliamentary debate on this Bill, the Minister (for Arts, Heritage, Gaeltacht and the Islands) noted that: “Essentially we are dealing with a provision that is nearly 40 years old. It can be argued that it is timely to reconsider a prohibition such as is contained in these subsections. It can be argued that the blanket ban contained in these provisions is too blunt an instrument to be used in this day and age for what is now a largely well educated society with a sophisticated understanding of the way media, including the very powerful radio and television media, work. It is helpful to our debate that in the recent past the constitutionality of this very provision – that is, the prohibition on advertising directed towards a religious end – was tested in the courts during 1997 and 1998.” 28. Having referred in detail to the High and Supreme Court judgments in the present, the Minister went on: “In dealing with the Bill, we are considering a proposal by the Opposition to amend a legislative provision that was found to be constitutional as recently as May 1998. We are being asked to amend a provision that was found by the Supreme Court not to be arbitrary or unfair and which impairs our constitutional rights as little as possible. The High Court and the Supreme Court acknowledged the sensitivity of the substance of the existing provisions of the section which the Bill is designed to amend. Anyone who reads these judgments must come to the conclusion that any amendment of the section which would give an agent of the State the power or responsibility of deciding which types of religious advertisements are permissible and which are not must be approached with great care if we are not to create considerable and perhaps insurmountable difficulties for the [IRTC] as suggested in the Bill. ... The Bill appears to have as its intention that the [IRTC] should have the scope to determine whether a political or religious newspaper or journal is bona fide. Where the journal or newspaper is bona fide, advertisements promoting the sale, for a cover charge of such publications, will not be prohibited under section 10(3) of the 1988 Act, provided the advertisement is directed to the promotion of the newspaper and is not sectarian or directed towards a political end. If the Bill were to be enacted, the [IRTC] would have a number of decisions to make. ... whether a particular religious journal or newspaper is bona fide ... [and] ... whether the advertisement promotes the publication and is not sectarian or directed towards a political end. I am satisfied that the provisions in the proposed legislation would place the [IRTC] in the position of having to make a value judgment in distinguishing between publications. In order to come to a decision as to whether a particular publication is a bona fide political or religious journal, the [IRTC] would have to assess the goals of any particular publication and possibly the goals of the religious or political organisation itself. Furthermore, the [ITRTC] would have to make an additional value judgment in determining what is or is not sectarian. The Bill provides no guidelines or parameters within which the [IRTC] can make these difficult and sensitive judgments. There is no provision for an appeals mechanism even though the Bill would give the [IRTC] the power to discriminate between one newspaper and another without providing any detailed grounds for doing so. As I indicated earlier, the High Court and Supreme Court judgments indicated the practical and administrative difficulties that would have to be overcome if a selective ban on the type of advertisements covered by section 10(3) of the 1988 Act was to be introduced. The Bill does not provide any means for dealing with the concerns expressed in these judgments. It would be foolhardy to progress without ensuring that we are not making matters worse. Turning to the policy rather than the detail proposed in the Bill, it is legitimate to consider whether a more selective ban on advertising directed towards a religious end might be developed. However, to make the ban selective, the means selected would have to ensure that any system provided for assessing the suitability of advertisements would be applied within the limits of the Constitution and in a constitutional manner. At the very least, the rights contained in Article 44 of the Constitution would have to be respected and fair proceedings for those aggrieved would have to be provided. Making the ban selective could also be seen as a curtailment of the right to free speech and expression provided by Article 40.6.1 of the Constitution. It might be a wiser course to consider providing the [IRTC] with powers to ban a particular advertisement in relation to religious material if it considers that the advertisement in question offends public order or morality rather than possibly discriminating between different publications. However, it is clear that advertising directed towards a religious end is a very special category of advertising. Advertising is to some extent regulated in most countries. Television advertising in particular is regulated throughout the European Union through, at a minimum, the Television without Frontiers Directive. That directive recognises the importance which individual member states attach to the regulation of broadcast advertising in that it provides that a member state may impose stricter regulation on broadcasters operating under its jurisdiction than is provided for in the directive. The regulation of advertising tends to be based on the general provision that all advertising should be legal, honest, decent and truthful. This is provided for in the codes of standards, practice and prohibitions in advertising, sponsorship and other forms of commercial promotion in broadcasting services which were drawn up under the provisions of section 4(1) of the Broadcasting Act, 1990. The same basic principle is provided in the Code of Advertising Standards for Ireland drawn up by the Advertising Standards Authority for Ireland. The Advertising Standards Authority for Ireland is a self-regulatory body, which was established by the advertising industry in 1981, and deals with advertising in most media including newspapers, posters and cinema as well as broadcasting. Understandably, the code drawn up under the [UK] Broadcasting Act 1990, does not deal with advertising directed towards a religious end as there is a blanket ban on such advertising. On the other hand, the [Advertising Standards Authority for Ireland] ASAI code specifically excludes advertisements whose principal purpose is to express the advertisers' position on political, religious, industrial relations, social or aesthetic matters or on an issue of public interest or concern from the scope of its code. It is interesting [503] that the [ASAI] decided not to apply its standards to these sensitive areas even though there is no statutory bar against it so doing. It would be extremely difficult to regulate religious advertising in the same way as advertising for goods and services is regulated. How does one determine if an advertisement directed towards a religious end is truthful? No product or service is being sold. While religious advertisers may hold their beliefs with the utmost conviction, the claims made in such advertisements are matters of belief and are not measurable by any objective standard. While I oppose the Bill, I am prepared to look at the policy which it attempts to put in place, that is, a more selective ban on advertising directed towards a religious end. If an appropriate amendment can be developed, I would hope to introduce it on Committee Stage during the passage of the Broadcasting Bill, which I hope to publish in the immediate future... . In considering an amendment, I will have to have regard for many of the issues raised in the judgments which I quoted earlier. These issues include in particular in relation to matters of such sensitivity, that rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals; the provisions of Article 40 of the Constitution conferring a right to communicate and the right of citizens to express freely their convictions and opinions will be clearly respected, and the provisions of Article 44 of the Constitution which guarantee freedom of conscience and the free profession of and practice of religion to every citizen subject to public order and morality and which prohibit any imposition by the State of any disabilities or the making of any discrimination on the grounds of religious profession, belief or status will also be respected. To achieve these aims it will be necessary to give consideration to devising fair procedures and natural justice measures to ensure that the body charged with regulating such advertisements will uphold and be seen to uphold these rights. It may be that if we are to consider relaxing the existing total ban on broadcast advertising directed towards a religious end, we must inevitably consider the removal of the prohibition of the ban in its entirety rather than the introduction of a more selective prohibition. Given the concerns which I have already mentioned, it may be the only safe way to proceed. However such a step cannot be taken lightly. To proceed to a more selective prohibition or to the removal of the prohibition without qualification will need considerable thought and consultation. Broadcasting, both television and radio, is recognised as the most powerful mass communications medium ever developed. Audiences for certain programmes are measured in millions. Radio is a secondary medium in that it can be present while other activities in the workplace, the home or the car are being carried out. Unlike a newspaper or magazine where a page can be turned quickly after a brief scan, a person is compelled to listen to, or at least hear, a radio advertisement if the listener wishes to ensure that her or his enjoyment of the programme is not interrupted. Children and young people are constantly exposed to the images, messages and attitudes which are promulgated on radio and television. Parents might quite properly wish to ensure that their children are exposed only to the religious profession of their choosing. It is possible that many such people would find advertising directed towards a religious end offensive simply because of the particular religious organisation which is making the advertisement. While it might be possible to prevent the broadcast of advertising directed towards a religious end during the hours of broadcasting devoted to children's programming, we all know that children and young people watch prime time television and listen to the radio at all hours so such a measure would only offer limited protection. I will not deal here with the alleged problems surrounding various cults and sects that have caused anxiety to families and whose activities could be interpreted as being directed towards a religious end. We must proceed very cautiously in this sensitive area. Perhaps in an era of ever increasing numbers of broadcast services becoming available via satellite, which is outside the legislative regime which applies to indigenous broadcasters, the total prohibition on advertising directed towards a religious end is an anachronism. It may be time to rely on our broadcasters not to offend or alienate their audiences through unacceptable advertising in this area. However, any change to the present position must be brought about through careful consideration and consultation with bodies such as the churches, the [IRTC] and broadcasters and the public generally. The Bill before the House does not address any of the concerns which I have mentioned. There are no definitions or parameters within which the [IRTC] would exercise the powers which the Bill seeks to confer on it. There are no safeguards or recourse provided for those who are aggrieved by the decisions which the [IRTC] might take if this Bill were enacted. The prohibitions in the Broadcasting Authority Acts relating to RTE are not addressed. While I accept that it is appropriate for the House to consider the policy proposed ... we cannot proceed without considerably more thought than is evidenced by the provisions of the Bill. The enactment of the Bill is likely to cause far more problems than it would resolve. This is a sensitive issue and I commend the Deputies opposite for giving us an opportunity to discuss it at length. While I understand the laudable motives of the Deputies in publishing this Bill, it is important that further consideration is given to the matter. There will be an opportunity to discuss the whole issue of broadcasting when I publish my broadcasting Bill. I will consider this issue and could be in a position to look at the overall problem in that context. If wording can be found we can easily bring that into the Bill by way of an amendment on Committee Stage.” 29. The 2001 Act was mainly designed to facilitate the introduction of digital terrestrial broadcasting in Ireland. The IRTC became the Broadcasting Commission of Ireland and was given expanded functions and powers in relation to digital broadcasting. 30. Section 18 of the 2001 Act applied section 10(3) of the 1988 Act to digital and other broadcasting services. However, section 65 of the 2001 Act relaxed the prohibition of the broadcasting of religious advertising as follows: “65. Nothing in section 20(4) of the Act of 1960 or section 10(3) of the Act of 1988 (including either of those sections as applied by this Act) shall be construed as preventing the broadcasting of a notice of the fact - (a) that a particular religious newspaper, magazine or periodical is available for sale or supply, or (b) that any event or ceremony associated with any particular religion will take place, if the contents of the notice do not address the issue of the merits or otherwise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation.” 31. This section was proposed by the Minister at the Committee stage on 30 November 2000 as an added section to the Bill already published. The Committee accepted the proposal without debate. 32. The Directive co-ordinates certain provisions of Member States of the European Community on television broadcasting. Article 12 of the Directive provides, inter alia, that television advertising shall not prejudice respect for human dignity, include any discrimination on grounds of race, sex or nationality or be offensive to religious or political beliefs.