CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 novembre 2007

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Loucaides , President ,   Mrs   N. Vajić ,   Mr   A. Kovler ,   Mr   K. Hajiyev ,   Mr   D. Spielmann ,   Mr   S.E. Jebens ,   Mr   G. Malinverni, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 12 May 2005, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The first applicant, TV Vest AS (Ltd.), is a television broadcasting company located in Stavanger, Rogaland, on the west coast of Norway. The second applicant, the Rogaland Pensioners Party ( Rogaland Pensjonistparti ), is the regional branch of a political party in Norway, the Pensioners Party. The applicants are represented before the Court by Mr.   K.   Eggen, a lawyer practising in Oslo. The facts of the case, as submitted by the parties, may be summarised as follows. The Pensioners Party is a small political party. With a view to the local and regional elections in 2003, the Party asked to purchase advertising time from TV Vest in order to broadcast political advertisements. In the Spring of 2003 the latter, considering that the broadcast would be lawful, agreed to broadcast 3 different advertisements, of a duration of 15 seconds each, 7 times per day over 8 days during the period from 14 August to 12   September 2003, and against the payment of a fee of NOK 30,000. The short commercials aimed to portray the values of the Pensioners Party and included an invitation to vote for the Party. On 12 August 2003 the first applicant notified the State Media Administration ( Statens medieforvaltning ) of its intention to broadcast the political advertisements and argued that such broadcasting was protected by Article 10 of the Convention. The first applicant broadcasted the political advertisements on 14, 15, 16, 18, 28, 29 and 30 August and 1, 3, 12 and 13 September 2003. According to a public statement by the second applicant dated 30   August   2003, although it had been made aware of the statutory prohibition of political advertising on television, it had nonetheless decided to advertise for the following reasons. “The Pensioners Party in Rogaland has had difficulties in obtaining the attention of the media. We regard this as a ‘golden opportunity’ to highlight the party’s values and political priorities. The bigger parties are given very wide leeway both in connection with debates and with different initiatives in radio, television and news papers. In this regard, the Pensioners Party often feels excluded and has very limited possibilities for being heard. In addition, the Party is never identified either in national or local opinion polls, but is included in the group ‘Others’. We in the Pensioners Party took responsibility for the content of the messages and chose three themes which best reflected the Party’s values and basic attitudes at local level ...”. On 27 August 2003 the Media Administration warned TV Vest that they were considering issuing a fine against TV Vest for violating the prohibition on political advertising on television. TV Vest answered the letter on 4   September 2003. On 10 September 2003 the Media Administration decided to impose a fine of NOK 35,000 on TV Vest , under section 10-3 of the Broadcasting Act 1992 and section 10-2 of the Broadcasting Regulation, for violation of the prohibition on political advertising applied to television broadcasts in section 3-1 (3) of the Act, which read: “Broadcasters cannot transmit advertisements for life philosophy or political opinions through television. This applies also to teletext.” TV Vest appealed against the decision of 10 September 2003 to Oslo City Court ( Oslo tingrett ). TV Vest did not dispute that the content was political advertising and thus fell foul of the above-mentioned prohibition in the Broadcasting Act but submitted that this provision was incompatible with the right to freedom of expression in Article 100 of the Constitution and Article 10 of the Convention. By a judgment of 23 February 2004 the City Court upheld the Media Administration’s decision. TV Vest appealed against the City Court’s judgment to the Supreme Court ( Høyesterett ), challenging its application of the law. The Supreme Court granted leave to appeal under Article 6 (2) of the Code of Civil Procedure. The second applicant acted as a third party intervener ( hjelpeintervenient ). In a judgment of 12 November 2004 the Supreme Court, by 4 votes to 1, upheld the Media Administration’s decision. The majority did not agree with the first applicant’s submission that the case raised an issue at the heart of freedom of expression. The most central aspect of the case was that the legislator had given certain ramifications for democratic processes concerning the limits on the use of television for paid communications made in the course of a political debate. Thus there was stronger reason to emphasise the legislator’s view in this area than issues of protection of the content of expression. The political instances were better placed than the courts to assess what measures were suitable for heightening the level of political debate. The rationale for the prohibition against political advertising through television was the assumption that it was likely to lead to an inappropriate form of political debate. An advert containing a political message could easily give a distorted picture of complex issues. Opening the possibilities for such adverts would mean that financially powerful groups would get greater opportunities for marketing their opinions than less resourceful parties or interest organisations. Thus, the majority observed, concerns about quality and pluralism in political debate were central and formed the basis for the courts’ assessment. It was not the content but the form and medium of the expression that was being regulated and the Pensioners party, like other parties, had many other means for addressing the electorate. There was hardly any reason for considering that the prohibition in section 3-1 (3) of the Broadcasting Act was incompatible with the freedom of expression as protected by Article 100 of the Constitution either in its version as applicable at the material time or in its amended version as of 30   September   2004. As regards the issue of necessity under Article 10 § 2 of the Convention the majority had particular regard to the Court’s judgments in Vgt Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001 ‑ VI) and Murphy v. Ireland (no. 44179/98, ECHR 2003 ‑ IX (extracts)), concerning restrictions on broadcasting of political advertising relating respectively to animal protection and the rearing of animals (on television) and the promotion of religious gatherings (on radio). Neither case was considered entirely parallel to the present case, but there were considerable similarities between this and the Murphy case. In the latter, unlike in the former, the Court had acknowledged a wide margin of appreciation for the Contracting States. In this connection the Supreme Court noted that there were great differences in the domestic laws of the Contracting States. In one group of States, including, inter alia , Norway, Sweden, Denmark, France, Germany and Ireland, restrictions applied to different degrees. In other States, including Hungary, Lithuania, Poland, Romania, the Netherlands and Finland, there were in principle no such restrictions. A further dimension to this was that in many States, the rules were under revision. In a number of States, the tendency was to liberalise, whereas in some States, for instance Denmark, the tendency was to tighten the restrictions. Also the kind of interference at issue in the case suggested a wide margin of appreciation. The regulation of political advertising was less a matter of individual freedom of speech and far more an issue of how best to promote political debate and secure good framework for the electoral process. The considerations relied on by the political bodies – that political advertising on television led to undue simplification of political issues and favoured financially powerful political groupings - concerned the need to preserve the quality of the political process. In this area it was essential that democratically elected institutions be given a wide margin of appreciation in making their assessment in the light of national conditions. Parliament’s assessments in this respect ought to prevail unless they appeared unfounded or based on slender foundations. It could not be said that Parliament, by enacting the disputed provision in the Broadcasting Act, had transgressed their margin of appreciation in determining the conditions for political debate. It would be for courts to review whether the arrangement was discriminatory. In the present instance the reasons given by Parliament had not been of a discriminatory character. Quite the contrary, political advertising would give the large and well to do political parties yet another advantage to the detriment of the small ones. As to the Pensioners Party’s argument that it was far from having the financial strength to abuse advertising and on the contrary needed it in the run-up to the elections, the Supreme Court observed that there was no democratic possibility for differentiating between the different political parties, especially just before elections. Having regard also to the variety of means available to political parties for getting their message across to a wide segment of the public, the interference occasioned by the prohibition on political television advertising was a limited one which was not disproportionate to the legitimate aims to be achieved. The justifications for the provision in section 3-1(3) of the Broadcasting Act were both relevant and sufficient. COMPLAINT The applicants complain that the fine imposed by the Media Administration on 10 September 2003, upheld by the Supreme Court in the final resort on 12 November 2004, constituted an interference with their right to freedom of expression as guaranteed by Article 10 § 1 of the Convention that was not justified for the purposes of Article 10 § 2; in particular it was not “necessary in a democratic society”. THE LAW In so far as is relevant, Article 10 of the Convention reads: “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, ... for the protection of the reputation or rights of others, ... or for maintaining the authority and impartiality of the judiciary.” A.     Submissions of the parties The parties shared the view that the impugned measure amounted to an interference with the applicants’ right to freedom of expression as guaranteed by paragraph 1 of Article 10 of the Convention. They further agreed that the measure was prescribed by law and pursued one or more legitimate aims in the sense of paragraph 2 of this Article. On the other hand, they were in disagreement as to whether the interference was necessary in a democratic society. 1.     The Government’s arguments The present case concerned political advertisements in the strict sense; adverts from a political party during the election period aiming at influencing the outcome of the elections. It struck at the core of the prohibition in section 3-1(3) of the Broadcasting Act. The impugned prohibition was limited to television advertising due to the powerful and pervasive impact of this type of media. Since no such restrictions applied with regard to other media, the prohibition had limited consequences for the freedom of expression. A number of much used and effective alternatives for political advertising were available, such as the print media, radio, the internet, billboards, leaflets and so on. The prohibition on political advertising on television was not in any way aimed at restricting political speech or debate on questions of public interest. Its purpose was to guarantee political expression by ensuring fairness and equality as well as preserving the quality of political debate. A possibility to advertise on television would clearly benefit the wealthier and/or established interests in society. There was thus a need to avoid de facto discrimination distorting democratic processes in favour of the wealthy and powerful. The issue in the present case was not whether it was legally feasible to regulate political advertising on television in other ways than through a prohibition or whether it was strictly necessary to prohibit such advertisements due to the democratic process in the Contracting States. The test was whether the interference was justified by a pressing social need – the assumption being that it was necessary unless the applicants could prove otherwise. The prohibition secured the political impartiality of television broadcasting. It also had the effect of limiting the total amount of money spent on election campaigns by political parties and interest groups, reducing their dependence on wealthy donors. The prohibition was aimed at supporting the integrity of the democratic process, to obtain a fair framework for political and public debate, and to avoid that those who were well endowed obtained an undesirable advantage by using the most potent and pervasive medium. The right to freedom of expression must therefore be considered in the light of the right to free elections provided by Article 3 of Protocol No. 1 to the Convention. The Norwegian prohibition, as those in several other Contracting States, was aimed at securing the “free expression of the opinion of the people in the choice of the legislature”. The prohibition thus achieved a very important aim for democracy. The question at issue was inevitably interlocked with the framework for the Norwegian democratic electoral process. A negative outcome of this case would affect important aspects of the Norwegian democratic society, such as the structure and size of political parties, political parties’ financing and how the election campaigns are carried out. This also militated in favour of a wider margin of appreciation, as held by the Court in inter alia Bowman v. United Kingdom , § 43. In Norway the elected representatives had only seen it highly necessary to prohibit political advertising on television, which undoubtedly, was a unique medium, both with regard to its pervasiveness and due the amount of resources necessary to purchase advertising-time. As pointed out by the Court in Murphy , cited above, § 69 the potential impact of the medium of expression concerned was an important factor in the consideration of the proportionality of an interference. The Court had acknowledged that account ought to be taken of the fact that the audio-visual media had a more immediate and powerful effect than the print media. Reference could also be made to the Council of Europe’s recommendation No. R (99) 15 with regard to “Measures concerning media coverage of election campaigns”, where the Committee of Ministers had emphasised “the need to take into account the significant differences which exist between the print and the broadcast media”. Hence, based on this commonly acknowledged premise, the question before the Court was whether there was a pressing social need to prohibit political advertisements on television in Norway. The general existence of such a pressing social need was clearly illustrated by the fact that numerous Contracting States had found it necessary to ban all political advertisements on television. In the view of the Government, the national elected, representative bodies were better equipped than national courts to evaluate the relevant pressing social needs, particularly as the aim of the prohibition was to secure the integrity of the national democratic process. This was even more so with regard to an international court with further distance from and less knowledge of the functioning of the democracy in the State in question. National parliaments were in direct and continuous contact with the vital forces in their countries in this respect. What was more, securing and promoting democracy was a core responsibility for the elected representatives in the Contracting States. The Norwegian prohibition had been thoroughly assessed on several occasions, most recently in May 2006, by the Government and by Parliament, which had found it to be a necessary measure for preserving central elements of the Norwegian democracy. This assessment would of course not be one that could be based on proof. It had been based on the representatives’ knowledge of the political system, the media, the developments in the Norwegian society etc. Moreover, as pointed out by the Court in Mathieu-Mohin and Clerfayt v. Belgium (judgment of 2   March   1987, Series   A no.   113) in relation to Article 3 of Protocol No. 1, any electoral system ought to be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the "free expression of the opinion of the people in the choice of the legislature". Thus the permissible spectrum in choice of how to regulate political advertisements must be wide. The highly limited restriction on political advertising in Norway – which only related to paid advertisements on television – must undoubtedly be within this spectrum. There was no uniform European conception of the requirements of the protection of the rights of others in relation to television broadcasting of political advertisements. Nor was there any legislative consensus as to the need to single out broadcast, as distinct from non-broadcast, political advertising for special regulating, whether within or outside an election period. According to the Court’s case law, the Contracting States thus had a wider margin of appreciation when regulating such advertisements. As at present, at least 12 Contracting States were of the view that their democracy was best preserved by prohibiting political advertisements on television and radio. In some of these political parties were to varying degrees given free airtime. In other states, such as Norway, one accepted such advertisements on radio. Which approach to political advertising would be optimal for preserving the democracy in the Contracting States was impossible to determine in the abstract and was best left to be assessed by the elected, representative bodies of the Contracting States, with due regard to developments in their political systems and media. 2.     The applicants’ arguments The applicants maintained that the existence of an absolute prohibition of political advertising on television combined with the absence of rules securing party political broadcast had had the effect that the Pensioners Party had been prevented from communicating directly with its electorate on television. The absolute prohibition was neither supported by sufficient reasons nor proportionate to the aims pursued. The applicants emphasised that the instant case concerned political speech for a political party published before a political election. Such speech fell within the core protection area of Article 10 of the Convention. Whereas the Court applied in the above cited VgT Verien gegen Tierfabriken judgment a strict margin of appreciation relating to speech of “general interest”, an even stricter standard should be applied to political speech emanating from political parties. Furthermore there were no country specific sensitivities in the instant case that could justify a special margin of appreciation. In asserting a wide margin of appreciation, the majority of the Supreme Court had only made reference to general circumstances that prevailed in any of the Contracting States. The Supreme Court held that considerable weight should be given to the Norwegian parliament’s decision to prohibit political advertising. It was wrong to consider that a political majority at any given time should be given a wide margin of appreciation when it came to regulations to secure the political process. The dissenting member of the Supreme Court had rightly stressed that the core idea behind the fundamental protection of free speech was to protect a political minority against being subjected to free speech restrictions imposed by the majority. The applicants further disputed the approach followed by the Supreme Court that Parliament’s considerations of the appropriateness of the prohibition should prevail unless those considerations appear unfounded or to lack objectivity. As a result of this erroneous approach, the Supreme Court had failed to examine the necessity in the concrete circumstances of the case of prohibition on the advertisements that the Pensioners Party had sought to publish. In Norway political advertisements were allowed without any limitation in all other media than television. The applicants submitted that there were no weighty reasons that could support a different treatment of the television media. The Pensioners Party was a small political party, without powerful financial mans or support from strong financial groups. It seldom got any focus in editorial television broadcasting and thus had a real need to establish direct communication between itself and the electorate. This need had been especially pressing, since, unlike in many other European States, there were no rules in Norway regulating party political broadcasts. Norway was thus one of very few Contracting States that not only prohibited political advertising on television but also failed to regulate party political broadcasts. This in effect meant that political speech on television was canalised through broadcasters’ editorial staff. Such a regulation favoured established political parties and established politicians, while small political parties such as Pensioners Party suffered. The broadcasted advertisements had focussed on the Pensioners Party’s core values and did not contain any statements that could reasonably be viewed as distorting or reducing the quality of the political debate. In light of the above, the applicants submitted that the reasons relied on by the Supreme Court were not sufficient, nor proportionate, to justify the interference as necessary in a democratic society. B.     Assessment by the Court The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35   §   3 of the Convention. No other ground for declaring it inadmissible has been established.   For these reasons, the Court unanimously   Decides to discontinue the application of Article 29 § 3 of the Convention;   Declares the application admissible, without prejudging the merits of the case.   Søren Nielsen   Loukis Loucaides   Registrar   President