Grand Chamber of the European Court outlines the scope of the right to freedom of expression

Mouvement Raelien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012)

Summary

This is a decision of the Grand Chamber of the European Court of Human Rights regarding the scope of the right to freedom of expression.

It involves an allegation by the Mouvement Raelien Suisse (Association) that the refusal by the Swiss authorities of the request for the Association to publish its posters in the Neuchatel municipality breached its rights to freedom of religion and freedom of expression, as protected by articles 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Facts

The Association is a non-profit organisation which aims to make first contacts and establish good relations with extraterrestrials. It promotes cloning, geniocracy (a doctrine where power is entrusted only to the individuals with the highest level of intellect) and sensual meditation.

The Association had requested authorisation from the police administration in the city of Neuchatel in Switzerland to conduct a poster campaign using a poster which said “the message from extraterrestrials” and “science at last replaces religion” and referred to the Association’s website and a French contact number. The Association’s website also contained a link to the website of Clonaid, a company established by the Association which provides human cloning services.

The police administration denied authorisation on the basis that the Raelian Movement engaged in activities that were contrary to the public order and immoral.

The Association appealed this decision to the municipal council of Neuchatel, who dismissed the appeal on the basis that the Association could not rely on the protection of religious freedom because it was regarded as a dangerous sect and the interference with the freedom of expression was based on article 19 of the Administrative Regulations for the City of Neuchatel which aimed to protect the public interest. It stated that this interference was proportionate as the organisation advocated human cloning, geniocracy and sensual meditation, which were against the public interest and could encourage criminal activity.

The Association then brought appeals to the Neuchatel Land Management Directorate, followed by the Administrative Court and the Federal Court. Each of these appeals was dismissed on similar grounds.

The original decision and each of the appeals assessed the application on the basis of the content on the Association’s website as well as the content of the poster in question.

On application to the Chamber of the European Court of Human Rights, the Government claimed that the application should be declared inadmissible as manifestly ill-founded, because the complaint had been examined in substance by national bodies in proceedings that met all conditions of fairness and were not arbitrary. This position was rejected by the Chamber.

The Chamber found that the prohibition of the posters did constitute an interference with the Association’s freedom of expression, but that the interference was prescribed by law and pursued the legitimate aims of prevention of crime, protection of health and morals and protection of the rights of others. The Chamber held that it was within the authorities’ rights to prohibit the poster in the regulation of the use of public space and that there was not a violation of article 10 of the Convention.

The Association then appealed to the Grand Chamber of the European Court of Human Rights.

Legislative Framework

The right to freedom of religion is protected under article 9 of the Convention, which reads as follows:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The right to freedom of expression is protected under article 10 of the Convention, which reads as follows:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 119 of the Swiss Federal Constitution of 18 April 1999 provides protection against the misuse of reproductive medicine and gene technology, and bans cloning.

The Administrative Regulations regulate the installation of billboards and advertising panels in public areas. The police may prohibit posters if they are unlawful or immoral, pursuant to article 19 of the Administrative Regulations.

The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of Human Beings with regard to the Application of Biology and Medicine prohibits human cloning.

Decision

The Grand Chamber:

  • dismissed unanimously the Government’s claim that the application should be declared inadmissible as manifestly ill-founded;
  • held by 9–8 majority that there was no violation of article 10 of the Convention; and
  • held unanimously that it was not required to examine the complaint under article 9 of the Convention.

It was accepted that the ban constituted an interference with the Association’s right to freedom of speech under article 10 of the Convention. The key issue for the Grand Chamber was to consider whether or not this interference was justified under paragraph 2 of article 10.

The majority of the Grand Chamber:

  • noted that to be justified, the interference must be prescribed by law, have one or more legitimate aims and be necessary in a democratic society;
  • accepted that the restriction in this case pursued the legitimate aims of preventing crime, protecting health or morals and protecting the rights of others;
  • found that the restriction was appropriate, given the regulations governing the publication of posters in public areas;
  • found that the intention of the poster was to direct people’s attention to the Association’s website, so the Grand Chamber needed to look at the website itself rather than just the content of the poster;
  • found that the combination of issues promoted on the website justified the prohibition of the posters in order to protect health and morals, protect the rights of others and prevent crime; and
  • concluded that the Government did not overstep its discretion and the reasons given to justify its decision were relevant and sufficient and met a pressing social need.

As such, the Grand Chamber did not consider it appropriate to substitute its own assessment for that of the Federal Court. It therefore held that there was no violation of Article 10 of the Convention.

Relevance to the Victorian Charter

This case provides some guidance to Victorian courts in interpreting the right to freedom of expression under section 15 of the Victorian Charter of Human Rights and Responsibilities Act 2006, which is similar to the provision in the Convention. This case indicates that the right to freedom of expression can be limited in circumstances where the limitation is considered necessary in the public interest.

The Victorian Charter, at section 7(1), also contains a similar provision to the Convention, requiring that human rights only be subject to limitations by laws to the extent these limitations can be “demonstrably justified in a free and democratic society”. As such, a restriction such as the one imposed in the current case may also be permitted under Victorian law.

It is relevant to note that under the Victorian Charter, the Association would not itself be entitled to human rights as section 6(1) of the Victorian Charter states that only natural persons, and not corporations, have human rights. However, an individual member of the Association would have their human rights protected by the Victorian Charter, so could argue an infringement of their right to freedom of expression in a similar way to the Association.

The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/1598.html

Amanda Lister is a lawyer at Maddocks.

MichelleBennettDemocratic Freedoms