Freedom of Expression and the Restrictions on Advertising regarding Cruel Treatment of Animals

Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) [2009] ECHR 32772/02 (30 June 2009) In VgT v Switzerland (No 2) the Grand Chamber of the European Court of Human Rights held that not only should the State refrain from interfering with an individual’s rights under the European Convention on Human Rights, but in some circumstances there is a positive obligation on the State to ensure that an individual is afforded guarantees under the Convention.  In this case, the State was required to ensure the full and proper execution of a judgment of the European Court to remedy a breach of the Convention and the failure to adequately do so constituted a fresh breach of the Convention.

Facts

Verein Gegen Tierfabriken Schweiz (‘VgT’) is an animal protection association, which produced a television commercial critical of battery pig farming.  Permission to broadcast the commercial was refused on the basis of a prohibition on political advertising.  The Federal Court of Switzerland upheld the refusal. 

VgT lodged an application appealing the decision of the Federal Court to the European Court of Human Rights.  The European Court held that the refusal to broadcast the commercial was in breach of the protection of the freedom of expression under art 10 of the Convention.  It was held that VgT had simply intended to participate in an ongoing general debate on the protection of animals and was unlawfully prevented from doing so.

On the basis of the European Court’s judgment, VgT applied to the Federal Court to re-open the domestic proceedings.  On 29 April 2002 the Federal Court dismissed VgT’s application, finding, inter alia, that there was no remaining purpose in broadcasting the commercial as more than 8 years had elapsed since VgT first sought permission to air the commercial.

The Committee of Ministers of the Council of Europe, which is responsible for supervising the execution of the European Court’s judgments, was not informed that the Federal Court had dismissed VgT’s application.  In July 2003 the Committee noted the possibility of applying to the Federal Court to re-open the proceedings.

In the meantime, on 25 July 2002 VgT lodged an application with the European Court challenging the Federal Court’s decision to refuse to re-open the proceedings and allow the continued prohibition on broadcasting the commercial.

In a Chamber judgment, the European Court held that there had been a further violation of article10 in preventing the commercial from being aired.  The matter was referred to the Grand Chamber, where VgT argued that the continued prohibition on broadcasting the commercial, after the Court had found a breach of its freedom of expression, constituted a fresh violation of article 10. 

The Swiss government argued that the application was inadmissible because VgT had not exhausted the domestic remedies available to it and also because the execution of the Court’s judgment was within the exclusive jurisdiction of the Committee.

Decision

Admissibility of the application

The European Court held that the domestic remedies available to VgT had been exhausted following the decision of the Federal Court on 29 April 2002.  Further, the European Court found that although its findings as to a violation of the Convention were essentially declaratory and the Committee was to supervise execution of the judgment, measurers taken by a State to remedy a violation could raise a new issue and form the subject matter of a new application.  In this case, the Federal Court’s judgment of 29 April 2002 refusing VgT’s application was a new decision of which the Committee had not been informed and which would escape all scrutiny under the Convention if the Court were unable to examine it. 

Accordingly, VgT was permitted to make an application to the European Court alleging a fresh breach of art 10.

Merits of the application

The European Court opined that the freedom of expression is a precondition of a functioning democracy and it 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.’  Significantly, it was held that that the protection of the right of freedom of expression may impose positive duties on the part of the State.  In determining whether a positive obligation existed, the European Court considered the balance between the general interests of the community and the interests of the individual. 

As to whether the protection of the freedom of expression under art 10 had been breached, it was held the Swiss authorities were under an obligation to execute the 2001 judgment of the European Court in good faith, abiding by its conclusions and spirit.  In the absence of any new grounds that could justify continuing the prohibition, the Swiss authorities were under an obligation to authorise the broadcasting of the commercial without taking the place of VgT in judging whether the debate in question was still a matter of public interest.  Accordingly, it was held by 11 votes to 6 that there had been a fresh violation of art 10 of the Convention.

Relevance to the Victorian Charter

Section 15 of the Victorian Charter of Human Rights and Responsibilities provides a corresponding safeguard to that under art 10 of the Convention in protecting an individual’s freedom of expression.  Accordingly, the decision may have direct relevance to restrictions placed on any political advertising in Victoria. 

Further, in light of the decision of the European Court, the Victorian government should ensure that it has sufficient mechanisms in place to ensure compliance with the Charter.  In particular, in finding that the State will in some circumstances have positive obligations to protect an individual’s rights, the decision should assist and stimulate the Victorian government in giving further content and meaning to the right of freedom of expression and other guarantees provided by the Charter.  This may include the implementation of education programmes, policies and campaigns to ensure that human rights are appropriately protected. 

Guy Donovan is a lawyer with the Public Interest Law Clearing House (Vic) and Holding Redlich