CEDH · CASELAW;REPORTS;ENG — 8 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Application No. 12726/87   AUTRONIC AG   against   SWITZERLAND   REPORT OF THE COMMISSION   (adopted on 8 March 1989)   TABLE OF CONTENTS                                                                   Page   I.       INTRODUCTION         (paras. 1-13) .......................................       1           A.       The application                 (paras. 2-4) ................................       1           B.       The proceedings                 (paras. 5-8) ................................       1           C.       The present Report                 (paras. 9-13) ...............................       2     II.      ESTABLISHMENT OF THE FACTS         (paras. 14-44) ......................................       3           A.       The particular circumstances of the case                 (paras. 14-35) ..............................       3           B.       Relevant domestic law                 (paras. 36-41) ..............................       8           C.       Relevant international law                 (paras. 42-44) ..............................       9       III.     OPINION OF THE COMMISSION         (paras. 45-85) ......................................       11           A.       Point at issue                 (para. 45) ..................................       11           B.       Interference with the right to receive                 information under Article 10 para. 1                 of the Convention                 (paras. 46-63) ..............................       11                   a.   Scope of the right under Article 10                     para. 1, first and second sentence                     (paras. 46-56) ..........................       11                   b.   Licensing of broadcasts under Article 10                     para. 1, third sentence                     (paras. 57-63) ..........................       13     12726/87                           - ii -                                                                       Page             C.       Justification under Article 10 para. 2                 of the Convention                 (paras. 64-87) ..............................       14                   a.   Was the interference "prescribed by law"                     (Article 10 para. 2)?                     (paras. 64-74) ..........................       14                   b.   Aim of the interference                     (paras. 75-80) ..........................       16                   c.   Necessity of the interference                     (paras. 81-87) ..........................       17           D.       Conclusion                 (para. 88) ..................................       18   Partly Dissenting Opinion of Mr.   H.G. SCHERMERS ...............     19   Dissenting Opinion of Mrs.   J. LIDDY ............................    20   APPENDIX I:    HISTORY OF THE PROCEEDINGS ........................   22   APPENDIX II:   DECISION ON THE ADMISSIBILITY .....................   23   I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application&_   2.       The applicant company, a stock corporation (Aktiengesell- schaft) registered under Swiss law, has its seat at Dübendorf in Switzerland.   It has specialised in the field of home electronics, inter alia in dish antennae (Parabolspiegel) of 90cm diameter for home use.   Before the Commission the applicant company is represented by Mr R. Gullotti, a lawyer practising in Berne.           The application is directed against Switzerland whose Government are represented by their Agent, Mr.   O. Jacot-Guillarmod, Head of the Division of International Affairs of the Federal Office of Justice.   3.       The application relates to the Swiss authorities' refusal to permit the applicant company to receive Soviet television programmes by means of its dish antennae without the approval of the broadcasting authorities.           In particular, the Radio and Television Department of the Board of Directors (Generaldirektion) of the Swiss Post, Telegraph and Telephone Services (PTT) held on 13 January 1983 that under the relevant provisions of the International Telecommunications Convention and the Radio Regulations the reception of broadcasts transmitted over telecommunications satellites depended on the approval by the transmitting authorities.   On 10 July 1986 the Federal Court dismissed the applicant company's administrative law appeal on the grounds that it had not demonstrated an economic interest worthy of protection.   4.       Before the Commission the applicant company complains that the free reception for private use of satellite transmissions which were not coded and were intended for the general public was made subject to the approval of the broadcasting State.   The applicant company alleges a violation of its right under Article 10 of the Convention to freedom of information.   It submits that there was no legal basis for the requirement of an approval and that such a requirement was also unjustified and disproportionate.   B.     The proceedings&_   5.       The application was introduced on 9 January 1987 and registered on 17 February 1987.           On 15 October 1987 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present before 15 January 1988 their observations in writing on the admissibility and merits of the application.   After a prolongation of the time-limit the Government's observations of 7 April 1988 were received on 8 April 1988.   Further submissions of the Government were dated 17 August 1988.   After a prolongation of the time-limit, the applicant company's reply of 30 June 1988 was received on 4 July 1988.   6.       On 11 October 1988 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   7.       The hearing took place on 13 December 1988.   The applicant company was represented by Mr.   R. Gullotti, as its counsel, and by Mr.   W. Streit as assistant counsel.   Mr.   P. Krause, President of the Board of Directors and proprietor of the applicant company was also present.           The respondent Government were represented by their Agent, Mr. O. Jacot-Guillarmod, as well as by Mr.   B. Münger, then the Service of International Affairs of the Federal Office of Justice, Mr.   A. Schmid, Head of the General Law Department of the PTT Board of Directors, and Mr.   H. Kieffer, Head of Section, Administration of frequencies and transmission monopoly (Senderegal) of the Radio and Television Department of the PTT Board of Directors, as advisers.           Following the hearing the Commission declared the application admissible.   8.      After declaring the application admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which such a settlement can be effected.     C.       The present Report&S   9.       The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberation and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL                   C.L. ROZAKIS              Mrs.   J. LIDDY   10.     The text of this Report was adopted on 8 March 1989 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   11.     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   12.       A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   13.       The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.     ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case&S   14.      The application concerns the reception by the applicant company in Switzerland of uncoded Soviet television programmes.   These programmes are prepared and broadcast in the Soviet Union.   They are transmitted to the Soviet satellite G-Horizont from where they are transmitted to receiving stations on the ground which distribute the programmes to users.   The satellite in question is a telecommuni- cations satellite rather than a direct broadcasting satellite.   It constitutes a fixed, i.e. point-to-point, radiocommunications service according to Article 1 para. 22 of the International Radio Regulations, and it employs frequencies which have been allotted to the radiocommunications service (Funkdienst).   Telecommunications satellites transmit, apart from radio and television programmes, also telephone conversations, telex messages and other data.   15.      While today a number of satellites exist retransmitting television broadcasts which could be received by means of dish antennae, in 1982, at the time when the present application originated in Switzerland, such broadcasts could only be received from the Soviet satellite G-Horizont.   16.      In spring 1982 the applicant company filed a request with the Radio and Television Department of the Board of Directors (General- direktion) of the Swiss Post, Telegraph and Telephone Services (PTT). Therein, it applied for permission to show at the Basle trade fair (Mustermesse) from 17 to 26 April 1982 the public Soviet television programme which it received by means of a private dish antenna directly from the Soviet satellite G-Horizont.           The Radio and Television Department of the Board of the PTT then wrote to the Soviet Embassy in Berne and inquired about the permission to receive the Soviet programmes.   This was granted by the Soviet authorities on 21 April 1982 for the Basle trade fair.   The applicant company was then able at the trade fair to demonstrate its dish antennae.   17.      On 7 July 1982 the applicant company again applied for such a permission for the 1982 FERA exhibition in Zurich lasting from 30 August until 6 September 1982.   This exhibition concerns new developments in radio, television and electronics equipment.           The Radio and Television Department of the Board of the PTT then again asked the Soviet authorities for permission, though a reply was never received.   18.      On 14 and 26 July and 6 August 1982 the Radio and Television Department of the Board of the PTT replied that it could not permit the reception of transmissions from the Soviet satellite without the express approval of the Soviet authorities.   As long as this approval had not been granted, the PTT was bound by the Radio Regulations to prevent any such reception.   19.      The applicant company was planning to conduct further such demonstrations.   It therefore applied on 1 November 1982 to the Radio and Television Department of the Board of the PTT for the issue of a declaratory order (Erlass einer Feststellungsverfügung).   The applicant company requested in particular a statement according to which the reception for private use of uncoded transmissions from telecommunications satellites, such as G-Horizont, should not be made     dependent on the approval by the authorities of the broadcasting State.   The applicant company submitted that the use of particular frequencies did not determine whether or not a programme was to be kept confidential, and Article 23 of the Radio Regulations (see para. 43 below) did not indicate which programmes were confidential.   20.      The applicant company submitted in particular that only a licence (Konzession) under Swiss law should be required for the reception of television and radio broadcasts.   Such a licence could be granted to everybody as long as the programmes were generally accessible and public and not confidential.   There was also no interference with Swiss copyright law since the condition for such protection was the quality of a "work" (Werk).   While individual programmes constituted such a work, an entire broadcasting programme did not.   21.      On 13 January 1983 the Radio and Television Department of the Board of PTT dismissed the applicant company's request for a declaratory order.   It issued an order that the reception at issue could not be permitted without the approval of the broadcasting State. The order informed the applicant company of the possibility of an appeal.   22.      As to the reasons for its order, the Radio and Television Department found that signals from telecommunications satellites could only be received by specially approved ground stations.   According to Article 9 para. 960 of the Radio Regulations each State administration could determine for a point-to-point radiocommunication certain frequencies, provided that these emissions were not intended for direct reception by the general public.   23.      The order of 13 January 1983 found, on the one hand, that the broadcasting satellites transmitted radio and television programmes to an undefined number of receiving stations in a defined area.   They transmitted on frequencies which were expressly reserved for direct reception.   On the other hand, in respect of telecommunications satellites Article 22 of the International Telecommunication Convention obliged all members States to secure the confidentiality of the transmissions.   Article 23 of the Radio Regulations rendered this provision more precise (see paras. 43ff below).   24.      The decision of the Radio and Television Department continues:   <German>   "Somit ist für die Frage, ob eine Sendung für den unmittelbaren Empfang durch die Allgemeinheit bestimmt ist, nicht der Inhalt der übertragenen Funksendung (z.B. ein Fernsehprogrammem) massgebend, sondern die Art und Weise der Übertragung, nämlich ihre Qualifizierung als Fernmelde- verbindung.   Daraus folgt, dass mittels Fernmeldesatelliten übertragene Rundfunkprogramme in einem Land nur empfangen werden dürfen, wenn die Fernmeldeverwaltung des Sendelandes   ... die Fernmeldeverwaltung des Empfangslandes dazu ermächtigt.   Damit wird auch den Bestimmungen betreffend das Fernmeldegeheimnis Rechnung getragen.   Es ist nicht einzusehen, weshalb Fernmeldeverwaltungen bestimmte     Funksendungen nicht sollten geheimhalten können, da sie doch zur Durchsetzung der Vorschriften von Fernmeldevertrag und Radioreglement verpflichtet sind."   <Translation>   "For the question, therefore, whether or not a broadcast is destined for the direct reception by the general public, the content of the transmitted radiocommunication (e.g. a television programme) is not relevant.   Rather, the means of transmitting is important, in particular its qualification as a telecommunication.   It results therefrom that radio and television programmes which have been transmitted over a telecommunications satellite may only be received in a country if the telecommunications administration of the transmitting State ... has given its approval to the telecommunications administration of the receiving State.   Thus, due consideration is taken of telecommunications confidentiality. There are no reasons why telecommunications administrations should not keep certain radiocommunications confidential since they are bound to ensure compliance with the provisions of the International Telecommunications Convention and the Radio Regulations."   25.      The applicant company thereupon filed an appeal (Beschwerde) which was dismissed, on 26 July 1983, by the Board of Directors of the PTT. The Board stated that it was competent to examine the appeal. It continued that the applicant company had an interest worthy of protection in having the contested order quashed within the meaning of Article 48 of the Swiss Administrative Procedure Act.   26.      In the grounds for its decision the Board then found that the protection of the information at issue could not depend, as the applicant company had suggested, on whether the transmissions were intended for the use by the general public since in the case of telecommunications satellites at the moment of transmitting it was not clear or generally known which transmissions were intended for the use of the general public.   The Board also considered that Article 10 of the Convention only granted the right to receive information from generally accessible sources which the telecommu- nications satellite did not constitute.   Moreover, it was irrelevant that the transmissions were later intended for general use since at the time of transmission there was a duty to keep the transmitted data confidential.   27.      Against this decision the applicant filed, on 13 September 1983, an administrative law appeal (Verwaltungsgerichtsbeschwerde) to the Federal Court (Bundesgericht) in which it requested the Court to issue a declaratory order to clarify the legal situation for the future.   In particular, the Court was requested to declare that the reception for private use of uncoded transmissions of telecommuni- cations satellites intended for the general public should not depend on the approval of the emitting State.     28.      On 7 February 1984, upon request of the Swiss PTT authorities, a member of the direction of the Soviet Gostelradio informed the Swiss PTT by telex that the broadcasts transmitted by the satellite in question were intended for Soviet television viewers and not for other countries.   According to the telex, any international use of such signals would have to be resolved on an international level.   29.      During the ensuing proceedings the Federal Court decided on 9 July 1984 to ask the Board of the PTT a number of questions on the factual and legal situation of the case.   The reply thereto, counting 22 pages, was submitted by the PTT General Direction on 22 August 1984.   On 31 August 1984 the applicant company submitted its own statements on the questions.   On 10 June 1985 the Federal Court Rapporteur informed the applicant company that its administrative court appeal had, for different reasons (umständehalber), so far not been treated and that the applicant company could submit further statements in reply until 16 August 1985.   30.      Meanwhile, on 26 June 1985, the Radio and Television Department of the Board of Directors of the PTT transmitted by telex the following enquiry to the Dutch Telecommunications authorities:   "...   In connection with the judgment of a request, we would like to know on which conditions reception of TV programmes via telecommunications satellites is permitted in the Netherlands.   Please let us also know if the Soviet communications satellite G-Horizont stationar is received in your country (by cable operators)..."   31.      On 1 July 1975 the Dutch authorities replied by telex:   "...   The conditions for reception of TV programmes by cable operators in the Netherlands seem to be quite similar to those in your country.   The Netherlands PTT issues licences to cable operators, separate for each particular TV programme.   With such a licence the operator can install his own TVRO antenna, although it is advisable for him to consult with PTT for frequency coordination purposes in order to avoid interference from terrestrial microwaves. ...   A few years ago some reception of the Ghorizont satellite did indeed take place.   This was considered illegal because of the absence of agreements with the USSR programme provider and satellite operator, and the cable operators were so informed. ..."   32.      The Swiss Radio and Television Department also asked the Finnish Telecomunications authorities about reception of television programmes from satellites.   On 8 July 1985 the latter replied by telex:   "...   We have permission from the Telecommunications Ministry of USSR to receive as an experiment the Ghorisont signal up to 31.12.1985.   Authorisation for distribution has been given in 7 cases so far."   33.      On 10 July 1986 the Federal Court rejected the applicant company's administrative court appeal.   The decision was served on 11 November 1986.   34.      The Federal Court stated in its decision that, while the applicant company had envisaged an abstract determination of the legal situation, it could in fact only complain that it had been unable to receive the transmissions in question at FERA since only such a reception was relevant for the applicant company (kam für sie konkret in Betracht).   The Court nevertheless found it unnecessary to resolve whether for this reason the applicant company's request for a declaratory order was inadmissible since it had in any event also failed to demonstrate an interest worthy of protection (schutzwürdiges Interesse).   35.      The Federal Court observed that at that moment there was over Europe, with the exception of the Soviet G-Horizont satellite, no other satellite the emissions of which could be received by a home dish antenna.   In fact, the applicant company had received signals of the Soviet satellite since it had no possibility to receive other programmes.   As long as this was the case, the Court found that there was hardly a market for such antennae, and only "strange persons" (Sonderlinge) would be inclined to buy such an antenna.   While a German and a French satellite would eventually commence operation it was unclear how these means of transmission should be used, and it could not be estimated how big the interest would be in a direct reception of their programmes, and how many dish antennae would be put into use.   Thus, since the applicant company had not demonstrated a direct economic interest, it had no interest worthy of protection in the issue of a declaratory order and the Federal Court therefore refused to enter into the complaint.     B.       Relevant domestic law&S   36.      The Government have referred to a number of provisions of Swiss law which may be summarised as follows:   37.      Reference is first made to Article 36 para. 4 of the Swiss Constitution which provides for the inviolability of the secrecy of letters and telegrams.   The 1922 Federal Act on telegraph and telephone correspondence provides in Article 1 a State monopoly for establishing and exploiting all installations serving the electrical or radio-electrical transmissions.   Article 3 of the 1922 Act provides for licences by the competent authority for the establishment and exploitation of installations destined for the transmission of electrical and radio-electrical signals.   Article 46 para. 2 empowers the Federal Council (Bundesrat) to enact further legislation.   38.      On the basis of Article 46 para. 2 of the 1922 Federal Act the Federal Council enacted on 10 December 1973 Ordonnance No. 1 on Telegraph and Telephone Correspondence.   A revised version of this Ordonnance was enacted on 17 August 1983 and entered into force on 1 January 1984.   39.      Article 50 para. 4 of Ordonnance No. 1 in the version of 1973 requires a licence for the exercise of the monopoly rights, in particular to demonstrate the functioning of radio reception installations.   Article 66 para. 4 requires a licence in particular to demonstrate the functioning of television reception installations.     40.      Ordonnance No. 1 of 17 August 1983 defines in Article 57 the content of a concession to receive radio broadcasts.   In particular, the holder of such a concession may receive Swiss or foreign, private or public radio broadcasts.   Article 78 para. 1 defines the scope of a licence for a collective antenna whereby its subpara. (a) expressly refers to the framework of the 1973 International Telecommunications Convention (see below para. 43).   Subpara. (f) states that the owner of a collective antenna is entitled to broadcast programmes and provide individual radio broadcasting services received from telecommunications satellites with the authorisation of the PTT which themselves require permission from the Department of Transport, Telecommunications and Energy.   Reference is also made to Article 79 para 2 of this Ordonnance No. 1 which states:   "The authorisation envisaged in Article 78 para. 1 (f) shall be granted if the competent telecommunications authorities have given their agreement and if none of the reasons for refusal laid down in Article 19 are present."           Article 19 of the 1983 Ordonnance No. 1 states that a licence may be refused if there are serious reasons for supposing that the telecommunications equipment will be used for purposes which are illegal, immoral or contrary to public policy, or are harmful to the overriding interests of the country, of the PTT or of radio broadcasting.   41.      Under Article 28 of Federal Decree on Satellite Broadcasting of 18 December 1987, permission from the relevant Federal Department is required for the retransmission of foreign programmes broadcast by satellite under a foreign licence.   Such permission is granted only if the PTT is satisfied that the requirements of Swiss and international telecommunications law are met.     C.       Relevant international law&S   42.      In the domestic proceedings in which the applicant company was involved, the Swiss authorities referred to various provisions under international law, which may be summarised as follows:   43.      Article 22 of the International Telecommunications Convention of 1973 states:   "Secrecy of Telecommunications.         1.   Members agree to take all possible measures, compatible with the system of telecommunication used, with a view to ensuring the secrecy of international correspondence.         2.   Nevertheless, they reserve the right to communicate such correspondence to the competent authorities in order to ensure the application of their internal laws or the execution of international conventions to which they are parties."           Article 42 of the Convention envisages further Administrative Regulations which shall be binding on the parties.   Under Article 44 Members are bound to abide by the Convention and the Administrative Regulations in all telecommunications offices and stations established or operated by them which engage in international services or which are capable of causing harmful interference with radio services of other countries.   Finally, Article 82 states that the Convention is completed inter alia by the Radio Regulations.   44.      Article 1 para. 37 of the Radio Regulations, adopted in the framework of the International Telecommunications Union (ITU), states that signals transmitted via broadcasting satellite in outer space may be directly received by the general public, either individually or collectively.   Article 9 para. 960 of the Radio Regulations states:   "Any administration may assign a frequency in a band allocated to the fixed service or allocated to the fixed-satellite service to a station authorized to transmit, unilaterally, from one specified fixed point to one or more specified fixed points provided that such transmissions are not intended to be received directly by the general public."           According to Article 23 of the Radio Regulations, States members of the ITU are bound to prevent reception by the general public of certain emissions:   "In the application of the appropriate provisions of the Convention, administrations bind themselves to take the necessary measures to prohibit and prevent:           (a) the unauthorised interception of radiocommunications             not intended for the general use of the public;           (b) the divulgence of the contents, simple disclosure of             the existence, publication or any use whatever, without             authorisation, of information of any nature whatever             obtained by the interception of the radiocommunications             mentioned in (lit. a above)."   III.     OPINION OF THE COMMISSION     A.       Point at issue&S   45.      The point at issue in the present case is whether the Swiss authorities' refusal to permit the applicant company to receive television broadcasts by a dish antenna from a telecommunications satellite constitutes a violation of Article 10 (Art. 10) of the Convention.     B.       Interference with the right to receive information         under Article 10 para. 1 (Art. 10-1) of the Convention&S           a. Scope of the right under Article 10 para. 1 (Art. 10-1) , first and           second sentence   46.      The applicant company submits that Article 10 (Art. 10) of the Convention includes the right to receive information from accessible sources.   In its opinion, Article 10 (Art. 10) includes the right to receive television broadcasts which are transmitted over a telecommunications satellite, since these broadcasts are destined for the general public.   Article 10 (Art. 10) of the Convention provides:   "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.   This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.   2.   The exercise of these freedoms, since it carries with it duties and responsibiities, 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".   47.      The Government submit that there are inherent limitations to the rights to receive information under Article 10 para. 1 (Art. 10-1) of the Convention.   In particular, Article 22 (Art. 22) of the International Tele- communications Convention and Article 23 of the Radio Regulations which govern all telecommunications transmitted over a telecommu- nications satellite provide for the secrecy of such telecommuni- cations.   The Government contend that Article 10 (Art. 10) of the Convention does not include the right to receive telecommunications intended to be secret.     48.      The Commission in declaring the present application admissible on 13 December 1988, left open whether or not the applicant company can claim a right under Article 10 (Art. 10) of the Convention to receive broadcasts from a telecommunications satellite, as opposed to a direct broadcasting satellite.   49.      Furthermore, according to the Commission's case-law, Article 10 (Art. 10) of the Convention, in particular the first and second sentence of its para. 1, must be seen in principle to include the right that the reception of broadcasts is not interfered with (see No. 10799/84, Radio X and others v.   Switzerland, Dec. 17.5.84, DR 37 p. 236; No. 10248/83, A. v.   Switzerland, Dec. 5.3.85, DR 41 p. 141).   50.      The Commission considers that Article 22 of the International Telecommunications Convention and Article 23 of the Radio Regulations primarily protect the secrecy of fixed, i.e. point-to-point, radio communications.   An issue arises whether these rules also refer to signals transmitted over a telecommunications satellite which are destined for the general public although they are generally considered point-to-point communications.   51.      In this respect the Commission observes that at present only telecommunications satellites are in operation over Europe.   These satellites transmit broadcasts for the general public though they are picked up primarily by receiving stations which then transmit them to the public.   However, it is clear that these broadcasts are also directly received by individual private antennae or by collective antennae.           It appears from the documents submitted by the applicant company, the content of which has not been contested in substance by the Government, that legal regulations have been enacted in France and Britain under which private individuals may obtain a normal licence to receive transmission from telecommunications satellites (see Arrêté du 22 octobre 1986 prévoyant les conditions d'exploitation des stations terriennes de réception de signaux de télévision transmis point à point dans les bandes 10,7-11,7 GHz et 12,5-12,75 GHz pour la France métropolitaine; the United Kingdom Wireless Telegraphy Act 1949, Amended, Part I, Article 1, and the concomitant Note of the Department of Trade and Industry concerning the Application for a licence for Television Receive Only Satellite Receiving Equipment).           In this context the Commission further takes note of the 26th Report by the International Telecommunication Union on telecommun- ication and the peaceful uses of outer space of 1987.   Therein reference is made to a new experimental telecommunication satellite system, TELE-X.   In this programme Finland, Norway and Sweden are engaged.   The Tele-X mission centres on experiments, inter alia, of direct television and sound broadcasting to home receivers and cable television networks.           The practice of some States therefore appears to accept that the provisions of the International Telecommunications Convention and the Radio Regulations do not exclude direct reception of signals transmitted over telecommunications satellites if they are destined for the general public.   52.      It is true that in 1982, when the present application originated, the applicant company could only receive broadcasts transmitted over the Soviet telecommunications satellite G-Horizont. However, the Commission finds that this fact does not affect its above consideration.   In particular, in the domestic proceedings the applicant company did not limit its application to the specific situation of the Soviet satellite.   Rather it extended its argument generally to any broadcast transmitted over a telecommunications satellite.   Moreover, the Government have confirmed that today the Swiss PTT authorities would again decide in the same manner as they did in 1983, if the applicant company were again to file the same request.   53.      As a result, the Commission does not find it possible to base its examination on a purely formal distinction between signals, destined for the general public, which are transmitted over a direct broadcasting satellite and signals which, uncoded and also destined for the general public, are transmitted over a telecommunications satellite.   54.      Consequently, under Article 10 para. 1 (Art. 10-1) of the Convention, the Commission finds that an interference with the right under para. 1 of this provision to receive the broadcasts at issue cannot be made dependent on the formal criterion that the secrecy must be protected of all signals which have been transmitted over a telecommunications satellite as opposed to those transmitted over a direct broadcasting satellite.   55.      Rather, where no issue arises as to the secrecy of telecom- munications, because they are intended for the general public, and where, furthermore, technical developments enable an individual, with his equipment, to receive these broadcasts, the right to do so is included in the right, protected by the first and second sentence of Article 10 para. 1 (Art. 10-1) of the Convention, to receive information.   56.      The applicant company therefore enjoys the right under Article 10 (Art. 10) to receive the broadcasts at issue.   Since the Swiss authorities have refused to grant permission to the applicant company to receive these broadcasts, there has been an interference with its rights under Article 10 para. 1 (Art. 10-1) of the Convention.           b. Licensing of broadcasts under Article 10 para. 1 (Art. 10-1),            third sentence   57.      The Government submit that under international telecommuni- cations law all telecommunications transmitted over a telecommunications satellite are secret, and that all States are obliged to maintain their secrecy.   Such secrecy requires also for the reception of broadcasts a licensing system which, in the Government's view, finds its basis in Article 10 para. 1 (Art. 10-1), third sentence.           This provision provides in particular that Article 10 (Art. 10) "shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."   58.      The applicant company submit that, under the provisions of the International Telecommunications Convention and the Radio Regulations, the reception for private purposes of uncoded satellite broadcasts   does not require the consent of the transmitting authorities, for which reason Article 10 para. 1 (Art. 10-1), third sentence, is inapplicable in the present case.   59.      The Commission has already found that it cannot proceed from a formal distinction between signals which are transmitted over a direct broadcasting satellite and signals, destined for the general public, which are transmitted over a telecommunications satellite (see para. 53 above).   60.      In the Commission's opinion, the Government's argument would imply that, whenever a State declares that its broadcasts destined for its own general public are not destined for the general public of another State, this would restrict the rights under Article 10 para. 1 (Art. 10-1).   However, such an interpretation would render meaningless an important principle of Article 10 para. 1 (Art. 10-1), namely that the rights are enshrined "regardless of frontiers".   This principle implies that States Parties to the Convention may only restrict information received from abroad within the confines provided for by the grounds of justification of Article 10 para. 2 (Art. 10-2).   61.      The Commission further notes that the third sentence of Article 10 para. 1 (Art. 10-1) refers to the licensing of "broadcasting". However, in the present case the equipment of the applicant company was clearly employed as a means for receiving the broadcasts at issue. For this reason, Article 10 para. 1 (Art. 10-1), third sentence cannot apply in the present case.   62.      As a result, the licensing clause of the third sentence of Article 10 para. 1 (Art. 10-1) does not remove the interference with the applicant company's right under Article 10 para. 1 (Art. 10-1), first and second sentence, of the Convention to receive the broadcasts at issue.   63.      The Commission must therefore examine whether this interference satisfied the conditions laid down in Article 10 para. 2 (Art. 10-2) of the Convention.     C.     Justification under Article 10 para. 2 (Art. 10-2) of the Convention&S           a. Was the interference "prescribed by law"            (Article 10 para. 2 (Art. 10-2) )?   64.      The first question under Article 10 para. 2 (Art. 10-2) of the Convention is whether the interference was "prescribed by law" within the meaning of this provision.   65.      The Government submit that, in the light of various provisions of Swiss domestic law and international telecommunications law (see paras. 36 ff above), the interference complained of was "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.   The Gov