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Wednesday, 31 January 2018

Can ‘public morals’ prevent the use of religious symbols and motifs in advertising? No, says the European Court of Human Rights

The first ad
Is the prohibition to use in advertising the image of Jesus and Mary on grounds of public morals an undue compression of one’s own freedom of expression?

This is essentially the issue that the European Court of Human Rights (ECtHR) had to address in Sekmadienis v Lithuania (Appl No 69317/14).

In yesterday’s judgment the Court answered … in the affirmative.

The decision is interesting because the ECtHR reviewed the application of freedom of expression within Article 10 of the European Convention on Human Rights (ECHR) in the context of commercial advertising and in light of the vague concept of ‘public morals’.

Background

The applicant, Sekmadienis, is a Lithuanian clothing company that in 2012 ran an advertising campaign featuring three advertisements:

1.    The first 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!).
2.    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!).
3.    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!).

In 2013, further to a number of complaints, the State Consumer Rights Protection Authority  (SCRPA) – having consulted the Lithuanian Advertising Agency and the Lithuanian Bishops Conference – held that the applicant’s advertising campaign was contrary to ‘public morals’ within Article 4 §2(1) of the Lithuanian Law on Advertising.

This provision states that “[a]dvertising shall be banned if … it violates public morals”.

Although the concept of ‘public morals’ is not defined in any legal instrument, according to the SCRPA it implies in any case the respect for the rights and interests of others. That would not be the case of the applicant’s campaign, which would be instead distasteful and offensive to religious people. Furthermore, “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”.

The SCRPA imposed a fine of approx EUR 580 on Sekmadienis. This appealed the decision, but all attempts were unsuccessful.

Having exhausted all internal legal remedies, the clothing company decided to sue Lithuania before the ECtHR, claiming that the interference with its own freedom of expression within the Lithuanian law was not justifiable in light of Article 10 ECHR, and went beyond the limitations allowed under paragraph 2 thereof. The applicant claimed that the restriction had not taken place in accordance with the law (when the advertisements were issued, the Law on Advertisement did not any include any reference to the use of religious symbols or motifs), did not pursue a legitimate, and was not necessary in a democratic society.

The Lithuanian Government submitted that the applicant’s freedom of expression had been compressed, but such restriction was compliant with Article 10(2) ECHR. As regards the notion of ‘public morals’, according to the Government this must be understood as broad: although the relevant provision in the Law on Advertising did not ban the use of religious symbols or motifs in advertising per se (at least at the time when the restriction was imposed, because later on the law was amended), morals could be based on religious views, especially taking into account the historic importance of Christianity in Lithuania (eg, in the context of anti-Soviet resistance), and the number of Christians among the population (nearly 80% of population is believed to be Catholic).

The judgment

As is clear from Article 10(2) ECHR, an interference with one’s own freedom of expression is allowed insofar as it:

·       Is prescribed by law;
·       Pursues a legitimate aim; and
·       Is necessary in a democratic society.

Prescribed by law: not really foreseeable but the point is not this

The first requirement, as also clarified in Delfi, entails that the law in question should be accessible, ie formulated with sufficient precision, to the person concerned and foreseeable as to its effects.

The assessment of foreseeability of course depends on the law considered, as well the field it is designed to cover and the number and status of those to whom it is addressed. If the addressees are those carrying on a professional activity who must exercise special care, then a special care in assessing the risks that such activity entails should be also expected.

The second ad
In the case at issue, the ECtHR agreed with the Lithuanian Government that it would not be possible to provide a precise legal definition of ‘public morals’, which accordingly must be intended in a broad sense.

Although the fact that this case was the first in Lithuania addressing the issue of use of religious symbols and motifs in advertising did not exclude the foreseeability of how the concept of ‘public morals’ would be intended in such instance, the fact that the advertisements were found to be contrary public morals because the use of religious symbols in them was “inappropriate” and “distorted the meaning” of those symbols was not foreseeable.

Nonetheless, the ECtHR noted that the real point would not be the foreseeability of such understanding of ‘public morals’, but rather whether the interference pursued a legitimate aim and was necessary in a democratic society.

Pursued a legitimate aim: yes

According to the ECtHR the aim of protecting morals arising from the Christian faith and shared by a substantial part of the Lithuanian population, along with the protection of the right of religious people not to be insulted on the grounds of their beliefs, is a legitimate aim.

Necessary in a democratic society: not really

The Court noted at the outset that the understanding of ‘democratic society’ entails that freedom of expression also includes information and ideas that offend, shock and disturb. Also, the meaning of ‘necessary’ implies that any restrictions to freedom of expression require the existence of a “pressing social need”, in relation to which Contracting States have a certain margin of appreciation. The Court’s task, in this sense, is to exercise a supervisory jurisdiction, not to replace competent national authorities.

The Court further noted that different types of expression may be subject to different degrees of protection. When it comes to religious beliefs, Article 10 freedom must be balanced against “the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 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”.

The Court held that the expressions at issue - although they had a commercial purpose and were not intended to contribute to any public debate concerning religion or any other matters of general interest – “at the outset … do not appear to be gratuitously offensive or profane, nor do they incite hatred on the grounds of religious belief or attack a religion in an unwarranted or abusive manner”.

The third ad
In this sense, the Lithuanian authorities had failed to explain “why the reference to religious symbols in the advertisements was offensive, other than for the very fact that it had been done for non-religious purposes”.

Furthermore none of the authorities had addressed the applicant’ argument that “the names of Jesus and Mary in the advertisements had been used not as religious references but as emotional interjections common in spoken Lithuanian, thereby creating a comic effect”.

The Court also noted that the Lithuanian Constitutional Court has 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”.

In conclusion

The ECtHR ruled that the Lithuanian authorities had 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.”

The analysis of the ECtHR is very interesting, in that it enlightens the relationship between freedom of commercial expression and the vague notion of ‘public morals’.

In this sense – in addition to providing guidance in the context of advertisement law - the judgment may also serve to elucidate how the absolute ground for refusal of registration of a trade mark on grounds of public policy or morality [Article 7(1)(f) of Regulation 2017/1001 and Article 4(1)(f) of Directive 2015/2424] should be intended, especially considering the frequent occasions in which this ground is relied upon by relevant authorities (for instance, only a few days ago the General Court confirmed that the sign ‘Fack Ju Göhte’ could not be registered as trade mark [here]).

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