BRIND AND OTHERS v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 18714/91

                      by David BRIND and Others

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

9 May 1994 the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

                 F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 12 March 1991 by

David BRIND and Others against the United Kingdom and registered on

22 August 1991 under file No. 18714/91;

      Having regard to :

-     reports provided for in Rule 47 of the Rules of Procedure of the

      Commission;

-     the observations submitted by the respondent Government on

      12 July 1993 and the observations in reply submitted by the

      applicants on 25 November 1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first six applicants are a television producer and five other

broadcast journalists, working as employed or independent television

and radio producers, editors or presenters.  The seventh applicant is

a clerk, who is bringing the application as the holder of a television

licence. A list of the seven applicants is set out in the annex.

      In the proceedings before the Commission the applicants are

represented by Messrs. Stephens Innocent, solicitors practising in

London.  The facts of the case may be summarised as follows.

(a)   The particular circumstances of the case

      On 19 October 1988, the Secretary of State for the Home

Department issued two notices, one addressed to the British

Broadcasting Corporation (BBC), the other to the Independent

Broadcasting Authority (IBA), in the following terms:

"1. ... I hereby require [the BBC] [the IBA] to refrain at all times

from sending any broadcast matter which consists of or includes -

      any words spoken, whether in the course of an interview or

      discussion or otherwise, by a person who appears or is heard on

      the programme in which the matter is broadcast where -

      (a) the person speaking the words represents or purports to

      represent an organisation specified in paragraph 2 below, or

      (b) the words support or solicit or invite support for such an

      organisation,

      other than any matter specified in paragraph 3 below.

2.    The organisations referred to in paragraph 1 above are -

      (a) any organisation which is for the time being a proscribed

      organisation for the purposes of the Prevention of Terrorism

      (Temporary Provisions) Act 1984 or the Northern Ireland

      (Emergency Provisions) Act 1978; and

      (b) Sinn Fein, Republican Sinn Fein and the Ulster Defence

      Association.

3.    The matter excluded from paragraph 1 above is any words spoken -

      (a) in the course of proceedings in Parliament, or

      (b) by or in support of a candidate at a parliamentary, European

      Parliamentary or local election pending that election."

      The Home Secretary explained the reasons for the measure in a

statement to Parliament on 19 October 1988:

      "For some time broadcast coverage of events in Northern Ireland

      has included the occasional appearance of representatives of

      para-military organisations and their political wings, who have

      used these opportunities as an attempt to justify their criminal

      activities. Such appearances have caused widespread offence to

      viewers and listeners throughout the United Kingdom, particularly

      just after a terrorist outrage. The terrorists themselves draw

      support and sustenance from access to radio and television - from

      addressing their views more directly to the population at large

      than is possible through the press. The Government have decided

      that the time has come to deny this easy platform to those who

      use it to propagate terrorism. Accordingly, I have today issued

      to the chairmen of the BBC and the IBA a notice... The

      restrictions will not apply to the broadcast of proceedings in

      Parliament, and in order not to impair the obligation on the

      broadcasters to provide an impartial coverage of elections the

      notices will have a more limited effect during election

      periods... These restrictions follow very closely the lines of

      similar provisions which have been operating in the Republic of

      Ireland for some years... Broadcasters have a dangerous and

      unenviable task in reporting events in Northern Ireland. This

      step is no criticism of them. What concerns us is the use made

      of broadcasting facilities by supporters of terrorism. This is

      not a restriction on reporting. It is a restriction on direct

      appearances by those who use or support violence...".

      By way of an explanatory letter dated 24 October 1988 the Home

Office offered guidance to the BBC on the interpretation of the

notices. The letter, which was copied to the IBA, provided, inter alia,

as follows:

      "It was asked whether the notice applied only to direct

      statements by representatives of the organisations or their

      supporters or whether it applied also to reports of the words

      they had spoken.  We confirmed, as the Home Secretary has made

      clear in Parliament, that the correct interpretation (and that

      which was intended) is that it applies only to direct statements

      and not to reported speech, and that the person caught by the

      notice is the one whose words are reported and not the reporter

      or presenter who reports them.  Thus the notice permits the

      showing of a film or still picture of the initiator speaking the

      words together with a voice-over account of them, whether in

      paraphrase or verbatim.  We confirmed that programmes involving

      the reconstruction of actual events, where actors use the

      verbatim words which had been spoken in actuality, are similarly

      permitted.

      ...

      The BBC also asked whether a member of an organisation or one of

      its elected representatives could be considered as permanently

      representing that organisation so that all his words, whatever

      their character, were covered by the Notice.  We confirmed that

      the Home Office takes the view that this is too narrow an

      interpretation of the word "represents" in paragraph 1(a) of the

      text.  A member of an organisation cannot be held to represent

      that organisation in all his daily activities.  Whether at any

      particular instance he is representing the organisation concerned

      will depend upon the nature of the words spoken and the

      particular context.  Where he is speaking in a personal capacity

      or purely in his capacity as a member of an organisation which

      does not fall under the notice (for example, an elected Council),

      it follows, from that interpretation, that paragraph 1(a) will

      not apply.  Where it is clear, from the context and the words

      that he is speaking as a representative of an organisation

      falling under the notice, his words may not be broadcast

      directly, but (as mentioned above) can be reported.  (He may, of

      course, come within the scope of paragraph 1(b), if his words

      contain support for the organisation.)  Although there may be

      borderline occasions when this distinction will require a careful

      exercise of judgment, we believe that the great majority of

      broadcast material will fall clearly within one case or the

      other."

      On 2 November 1988 the Home Secretary's directions to the BBC and

the IBA were debated in the House of Commons, and approved by 243 votes

to 179.  The House of Lords, also after a debate, took note of the

directions on 8 December 1988.

      The applicants challenged the directions in judicial review

proceedings.  Their application was dismissed by the High Court on

26 May 1989, and their appeal was dismissed by the Court of Appeal on

6 December 1989 and by the House of Lords on 7 February 1991.

      The House of Lords held that for lack of incorporation into

domestic law the Convention rights were incapable of being directly

enforced by the English courts. Applying the Convention either directly

or by reference to the principles developed in the Convention organs'

case-law would amount to a judicial usurpation of the legislative

function. Judicial review was confined to examining whether the Home

Secretary had acted unreasonably in issuing the directions. On this

question, Lord Bridge stated inter alia:

      "Most of the rights spelled out in terms in the Convention,

      including the right to freedom of expression, are less than

      absolute and must in some cases yield to the claims of competing

      public interests. Thus, Article 10 para. 2 of the Convention

      spells out and categorises the competing public interests by

      reference to which the right to freedom of expression may have

      to be curtailed. In exercising the power of judicial review we

      have neither the advantages nor the disadvantages of any

      comparable code to which we may refer or by which we are bound.

      But again, this surely does not mean that in deciding whether the

      Secretary of State, in the exercise of his discretion, could

      reasonably impose the restriction he has imposed on the

      broadcasting organisations, we are not perfectly entitled to

      start from the premise that any restriction of the right to

      freedom of expression requires to be justified and that nothing

      less than an important competing public interest will be

      sufficient to justify it. The primary judgment ... falls to be

      made by the Secretary of State to whom Parliament has entrusted

      the discretion. But we are entitled to exercise a secondary

      judgment by asking whether a reasonable Secretary of State, on

      the material before him, could reasonably make that primary

      judgment.

      Applying these principles to the circumstances of the case, ...

      I find it impossible to say that the Secretary of State exceeded

      the limits of his discretion. In any civilised and law-abiding

      society the defeat of the terrorist is a public interest of the

      first importance. ... The Secretary of State, for the reasons he

      made so clear in Parliament, decided that it was necessary to

      deny to the terrorist and his supporters the opportunity to speak

      directly to the public through the most influential of the media

      of communication and that this justified some interference with

      editorial freedom. I do not see how this judgment can be

      categorised as unreasonable. ..."

      The applicants had invited the Court to apply a test of

proportionality as developed by the European Court of Human Rights for

the purpose of interpreting Article 10 para. 2 of the Convention.

Rejecting this approach as being outside the scope of judicial review,

Lord Ackner said:

      "The European test of whether the "interference" complained of

      corresponds to a "pressing social need" ... must ultimately

      result in the question "Is the particular decision acceptable ?"

      And this must involve a review of the merits of the decision.

      Unless and until Parliament incorporates the Convention into

      domestic law, ... there appears to me to be at present no basis

      upon which the proportionality doctrine applied by the European

      Court can be followed by the courts of this country."

(b)   The relevant domestic law

      The notices made in the present case were authorised under powers

conferred on the Home Secretary in a "Licence and Agreement" of

2 April 1981 in respect of the BBC and under Section 29 of the

Broadcasting Act 1981 in respect of the IBA.

      The BBC is a public corporation governed by a Royal Charter which

defines its objects, powers and obligations, its constitution and the

sources and uses of its revenues. The Licence and Agreement prescribes

the terms and conditions of the corporation's operations.

      Clause 13 (4) of the Licence and Agreement reads as follows:

      "The Secretary of State may from time to time by notice in

      writing require the Corporation to refrain at any specified time

      or at all times from sending any matter or matters of any class

      specified in such notice; and the Secretary of State may at any

      time or times vary or revoke any such notice..."

      Section 29 (3) of the Broadcasting Act 1981 provides that:

      "... the Secretary of State may at any time by notice in writing

      require the Authority to refrain from broadcasting any matter or

      classes of matter specified in the notice; and it shall be the

      duty of the Authority to comply with the notice."

COMPLAINTS

      The applicants complain that as a result of the Home Secretary's

directions there was unjustified interference with their right to

receive and impart information and ideas. They invoke Article 10 of the

Convention.

      They submit that as a result of the directions they have suffered

direct and continuing interference with their right under Article 10

of the Convention to impart and receive information and ideas. By way

of illustration of the impact of the directions on their professional

work as broadcasters and of the "chilling effect" on coverage of issues

in Northern Ireland, they provide the following examples:

  -   an interview with Gerry Adams, President of Sinn Fein and later

      Member of Parliament for West Belfast, which was conducted in

      1982, can no longer be retransmitted;

  -   another interview with Gerry Adams MP conducted by the "World in

      Action" programme cannot be retransmitted, so that the

      half-truths, evasions and hypocrisy of those who excuse terrorist

      atrocities cannot be exposed;

  -   an interview with Ms McGuiness, a Sinn Fein local councillor,

      produced in the week following the Directive, which relates inter

      alia to her campaign over the closure of the local hospital was

      banned by the IBA in consequence of the directives;

  -   an interview with a Sinn Fein spokesman about the SDLP/Sinn Fein

      talks, conducted and transmitted by the BBC in September 1988,

      cannot be retransmitted;

  -   "phone-in" radio programmes require examination of callers'

      political views prior to permitting them access to the airwaves;

  -   historical programmes such as "Ireland - A Television History"

      and "The Troubles" have been refused repeat showings because they

      contain historical documentary footage of notable Irish leaders

      who were in the past members or supporters of the IRA or Sinn

      Fein;

  -   a record made by the Irish folk singing group "The Pogues" was

      banned from air play on radio stations by the IBA on the grounds

      that its lyrics were supportive of the IRA (by suggesting that

      six men convicted of an IRA bombing in Birmingham in 1973, and

      four men convicted of an IRA bombing in Guildford in 1974, were

      not guilty as charged) until the ban was lifted in March 1991

      when the convictions of the ten people were quashed on the

      grounds of miscarriage of justice.

      They further complain that, by limiting judicial review to a test

of unreasonableness, the courts denied them an effective remedy for

their Convention claim, contrary to Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 12 March 1991 and registered

on 22 August 1991.

      On 31 August 1992 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits.

      The Government submitted their observations on 12 July 1993,

after successive extensions of the time-limit in order to enable the

Government to consider video recordings which were finally submitted

by the applicants on 28 May 1993.  The applicants submitted their

observations, after two extensions of the time-limit, on

25 November 1993.

THE LAW

1.    The applicants allege a violation of Article 10 (Art. 10) of the

Convention by virtue of the effect of the notices made by the Home

Secretary on 19 October 1988.

      Article 10 (Art. 10) of the Convention provides, so far as

relevant, 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."

      The Government submit that the seventh applicant, who is not a

journalist but applies to the Commission as a member of the public who

has paid his television licence fee and who alleges restrictions on his

right "to receive.. information", cannot claim to be a "victim" of a

violation of the Convention within the meaning of Article 25 (Art. 25)

of the Convention.  The applicants point out that the seventh applicant

is adversely affected by the notices as he is unable to receive the

information on the basis of which he could otherwise assess and judge

the personalities and policies of Sinn Fein.

      The Commission is not required to determine this aspect of the

case, as it finds that the application is in any event manifestly

ill-founded in respect of all the applicants, for the reasons set out

below.

      The Government accept that, for the purposes of Article 10

(Art. 10) of the Convention, there has been an interference with the

right of the first to sixth applicants to freedom of expression, but

they point out that the extent of the interference is less than that

resulting from the restrictions applicable in Ireland when the

Commission decided Application No. 15404/89 (Dec. 16.4.91), and in any

event is mitigated by the fact that the notices do not limit the words

which can be spoken on radio and television, but merely require (for

statements falling within the ambit of the notices) an actor's voice

to be used.

      The applicants do not accept the Government's claim that the

extent of the interference is limited.  They point out that the penalty

for non-compliance with the notices - the loss of the right to

broadcast - is so enormous that broadcasters will always err on the

safe side, with the result that a substantial "chilling effect" is

brought about.  They also refer to academic research which indicates

that the notices have had a considerable effect on current affairs

coverage in Northern Ireland.

      The Commission recalls that freedom of the press affords the

public one of the best means of discovering and forming an opinion of

the ideas and attitudes of political leaders, and freedom of political

debate is at the very core of the concept of a democratic society (Eur.

Court H.R., Oberschlick judgment of 23 May 1991, Series A no. 204, p.

25, para. 58).  Whatever view may be formed of the politics of, for

example, Sinn Fein, it is the role of broadcasters and journalists,

such as the first to sixth applicants, subject to the restrictions

imported by the duties and responsibilities referred to in Article 10

para. 2 (Art. 10-2) of the Convention, to channel to the public

information about political movements and their leaders.  Article 10

(Art. 10) rights to convey information can be interfered with by

restrictions on the manner of conveying information, as well as on the

content of the information (Nos. 11553/85 and 11658/85, Dec. 9.3.87,

D.R. 51, p. 136, 144; Eur. Court H.R., Autronic judgment of

22 May 1990, Series A no. 178, p. 23, para. 47).

      The Commission notes that the notices have a real impact on the

way in which the first to sixth applicants undertake their journalistic

functions, and finds that each has been subjected to interference with

his or her rights under Article 10 (Art. 10).

      The interference entails a violation of Article 10 (Art. 10) of

the Convention if it does not fall within one of the exceptions

provided for in paragraph 2.  The Commission must therefore examine

whether the interference was "prescribed by law", whether it had an aim

or aims that is or are legitimate under Article 10 para. 2 (Art. 10-2),

and whether it was "necessary in a democratic society" to achieve that

aim or those aims.

      The Government submit that the Licence and Agreement of 1981 in

the case of the BBC and the Broadcasting Act 1981 in the case of the

IBA provide the necessary regulatory background to the notices, and

that, when taken together with the explanatory letter from the Home

Office, the directions fall within the concept of "law" as defined by

the European Court of Human Rights in the Sunday Times case (Eur. Court

H.R., Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31,

para. 49).  The applicants consider that the directions contained in

the notices are so unclear that it cannot realistically be determined

what they cover.  In particular they point to the gloss put on the

directions by the Home Office explanatory letter of 24 October 1988,

namely that an elected individual may speak as an elected individual

but not, if a member of Sinn Fein, as a member of Sinn Fein.  They

consider that it is impossible to separate the statements of an

individual which are made in his capacity as an elected individual from

those made as a member of the party he was elected to represent, and

conclude that it cannot therefore be said that the notices contain

sufficient precision to enable individuals - journalists and

broadcasters in this case - to regulate their conduct.

      The Commission recalls that it has considered orders of a similar

nature to the present notices in the case of Purcell v. Ireland (No.

15404/89, Dec. 16.4.91, to be published in D.R. 70).  In that case the

Commission found that the broadcasting restrictions in Ireland were

"prescribed by law" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.  Although similar, the Commission finds

that the restrictions in the present case cannot be exactly equated

with those in the case of Purcell.  In particular, the orders in the

case of Purcell derived from an express statutory power to make orders

relating to matters "likely to promote, or incite to, crime or [which]

would tend to undermine the authority of the State".  Moreover, the

Irish provisions were brought into effect by a statutory instrument

which had to be laid before both Houses of the Irish parliament, and

could be annulled by either House (see p. 14 of the Commission's

decision).

      The Commission recalls that the European Court of Human Rights

has identified at least three requirements which flow from the phrase

"in accordance with the law" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.  The phrase "prescribed by law" in

Article 10 para. 2 (Art. 10-2) must be given the same interpretation

as the phrase "in accordance with the law" (Eur. Court H.R., Silver

judgment of 25 March 1983, Series A no. 61, p. 33, para. 85).  Thus a

norm must be formulated with sufficient precision; the phrase "in

accordance with the law", or the equivalent phrase "prescribed by law",

does not merely refer back to domestic law, but also relates to the

quality of the law, and a law conferring a discretion is not in itself

inconsistent with the requirement of foreseeability provided that the

scope of the discretion and the manner of its exercise are indicated

with sufficient clarity (Eur. Court H.R., Olsson judgment of 24 March

1988, Series A no. 130, p. 30, para. 61 with further references).

      In the present case the Commission is faced with notices whose

authority derives from statutory sources in the case of the IBA and a

Licence and Agreement in the case of the BBC.  The Government and the

applicants agree that this difference is of no significance.  In any

event, notwithstanding the applicants' criticism of the state of

domestic law, the Commission notes that there is no contention in the

present case that the interference was not in accordance with domestic

law, as the House of Lords ultimately established.  As to whether the

"law" at issue in the present case has the required "quality", the

Commission notes that the authority to make notices is of a general,

blanket nature.  It sets no limits on the type of directions the

minister may give, and does not require the directions to be made for

any particular purpose.  The Commission must, however, look not only

to the source of the authority for the making of the directions, but

also to the directions themselves, as it is the directions which laid

down the restrictions which had, and have, to be complied with by

broadcasters.

      The Commission recalls that accessibility and foreseeability are

two of the requirements inherent in the phrase "prescribed by law" in

Article 10 para. 2 (Art. 10-2) of the Convention (see, for example,

Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A no.

30, p. 31, para. 49).  The accessibility of the directions is not in

question in the present case: the source of the authority for the

respective notices is generally available, and the notices made by the

Home Secretary were announced in Parliament, debated in Parliament, and

the subject of widespread comment in the press.  As to foreseeability,

even if the original notices contained areas of uncertainty, such as

the impact on elected individuals speaking on matters unrelated to

terrorism, the Commission finds that the subsequent clarification by

the Home Office to the broadcasting authorities rendered the extent of

the interference with the applicants' rights apparent to all concerned.

      Accordingly, the Commission finds that the interference was

"prescribed by law" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

      The Commission must next consider whether the interference with

the applicants' rights pursued a "legitimate aim".  The Government

point to the address by the Home Secretary to the House of Commons on

19 October 1988, in which he referred to the restrictions as part of

the campaign against terrorism.  They recall that Lord Templeman in the

House of Lords also recognised this aim.  They see the aim of the

notices as principally the protection of "the interests of national

security" and "the prevention of disorder or crime".  The applicants

accept the importance of securing peace in Northern Ireland, but see

a clear distinction between other measures introduced in 1988 to combat

terrorism and the present restrictions, in that the broadcasting

restrictions do not in fact further the struggle against terrorism in

any way.  They consider that the real aim of the restrictions is to

represent to the public that Sinn Fein, a lawful political party, is

a party which deserves no support.

        The Commission recalls that the restrictions in the present

case refer in terms to proscribed organisations and to named

organisations which, although not prohibited, are known to have

connections with unlawful organisations.  Whilst the effect and

effectiveness of the restrictions must be considered in the context of

the discussion of the "necessity" for the directions, there is no

indication in the present case that the directions were anything other

than part of the measures taken to combat terrorism which were made in

good faith. The Commission accepts that the aim of the restrictions is

legitimate.

      Finally, the Commission must consider the question of the

necessity for the interference with the applicants' Article 10

(Art. 10) rights.  The European Court of Human Rights has summarised

the major principles of its case-law on the "necessity" test in Article

10 (Art. 10) of the Convention as follows:

      "(a) Freedom of expression constitutes one of the essential

      foundations of a democratic society;  subject to paragraph 2 of

      Article 10 (Art. 10), 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.  Freedom of expression, as

      enshrined in Article 10 (Art. 10), is subject to a number of

      exceptions which, however, must be narrowly interpreted and the

      necessity for any restrictions must be convincingly established.

      (b)  These principles are of particular importance as far as the

      press is concerned. While it must not overstep the bounds set,

      inter alia, in the `interests of national security' or for

      `maintaining the authority of the judiciary', it is nevertheless

      incumbent on it to impart information and ideas on matters of

      public interest. Not only does the press have the task of

      imparting such information and ideas: the  public also has a

      right to receive them.  Were it otherwise, the press would be

      unable to play its vital role of `public watchdog'.

      (c) The adjective 'necessary', within the meaning of Article 10

      para. 2 (Art. 10-2), implies the existence of a 'pressing social

      need'.  The Contracting States have a certain margin of

      appreciation in assessing whether such a need exists, but it goes

      hand in hand with a European supervision, embracing both the law

      and the decisions applying it, even those given by independent

      courts.  The [Convention organs] are therefore empowered to give

      the final ruling on whether a 'restriction' is reconcilable with

      freedom of expression as protected by Article 10 (Art. 10).

      (d)  The [Convention organs'] task, in exercising [their]

      supervisory jurisdiction, is not to take the place of the

      competent national authorities but rather to review under

      Article 10 (Art. 10) the decisions they delivered pursuant to

      their power of appreciation.  This does not mean that [their]

      supervision is limited to ascertaining whether the respondent

      State exercised its discretion reasonably, carefully and in good

      faith; what [they have] to do is to look at the interference

      complained of in the light of the case as a whole and determine

      whether it was 'proportionate to the legitimate aim pursued' and

      whether the reasons adduced by the national authorities to

      justify it are 'relevant and sufficient'."

      (Eur. Court H.R., Sunday Times (No. 2) judgment of

      26 November 1991, Series A no. 217, p. 29, para. 50)

      The Government submit that it cannot be right that the applicants

have the right to exercise their professions completely free from

Government interference.  They accept that the directions given to

broadcasting authorities will not directly reduce the number of

terrorist acts in Northern Ireland or in the United Kingdom, but state

that they are intended to reduce the impact and influence of the

advocates and supporters of such acts, and that they correspond to the

need to prevent the giving of overt support for certain organisations.

They refer to the Purcell case, where the Commission found that the

restrictions were designed to "deny representatives of known terrorist

organisations and their political supporters a possibility of using the

broadcast media as a platform for advocating their cause, encouraging

support for their organisation and conveying the impression of their

legitimacy".  They consider that, notwithstanding the compliance by

broadcasters with their various statutory or contractual duties,

interviews were broadcast before the notices were issued which gave

terrorists and their apologists a spurious air of authority.

      The Government regard the extensive experience of the executive

and the legislature of terrorist matters as justifying a greater margin

of appreciation than might be the case in other spheres involving

restrictions on freedom of expression.  They nevertheless point out

that the restrictions on the applicants' freedom of expression are less

onerous than those in the Purcell case, in that they are very precisely

targeted and they do not apply during elections.

      The applicants, in connection with the "necessity" test and

throughout their observations, essentially challenge the

proportionality of the interference.  They underline the enormous

penalty for failure to comply with the restrictions -  loss of the

right to broadcast - and lack of evidence on the part of the Government

to show (i) that Sinn Fein in fact obtained favourable media coverage

before the restrictions; (ii) that interviews with terrorists increase

their "standing", or (iii) that there is any public support for the

restrictions.

      Both parties discuss at some length the position of the

"proportionality" test in domestic law.  The Government submit in

essence that the judgments of the House of Lords in the present case

indicate that the domestic courts take broadly the same approach to

freedom of expression as the Convention organs.  The applicants submit

that the House of Lords merely pay lip service to freedom of expression

whilst in fact failing signally to undertake any serious examination

of the conflicting interests involved.

      The Commission notes that the extent of the interference in the

present case is limited.  Whilst the applicants are affected by the

directions in the way they perform their functions (see above), the

directions given on 19 October 1988 do not have any impact on the words

that can be spoken or the images that can be shown on television or the

radio.  The Commission accepts that it must be inconvenient for

journalists to have to use the voice of an actor for the broadcasting

of certain interviews, and appreciates that the logic of the

continuation of the directions is not readily apparent when they appear

to have very little real impact on the information available to the

public.  The very absence of such impact is, however, a matter the

Commission must bear in mind in determining the proportionality of the

interference to the aim pursued.

      The Commission further notes that although the Government do not

contend that the interference with the applicants' rights is a prime

element in the struggle against terrorism, it can be regarded as one

aspect of a very important area of domestic policy.  The European Court

of Human Rights has referred to the special problems involved in

combating terrorism (Eur. Court H.R., Brogan and others judgment of

29 November 1988, Series A no. 145, p. 33, para. 61; p. 27, para. 48;

Brannigan and McBride judgment of 26 May 1993, Series A no. 258, p. 50,

para. 47, with further references), and the Commission has no doubt as

to the difficulties involved in striking a fair balance between the

requirements of protecting freedom of information - especially the free

flow of information from the media - and the need to protect the State

and the public against armed conspiracies seeking to overthrow the

democratic order which guarantees this freedom and other human rights.

      The Commission finds, in the circumstances of the present case

and bearing in mind the margin of appreciation permitted to States, the

limited extent of the interference with the first to sixth applicants'

rights and the importance of measures to combat terrorism, that it

cannot be said that the interference with the first to sixth

applicants' freedom of expression was disproportionate to the aim

sought to be pursued.  The interference in the case of the seventh

applicant is of an even more limited nature, and the Commission finds

that the above reasoning applies, mutatis mutandis, to him.

      It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicants also allege a violation of Article 13 (Art. 13)

of the Convention.  Article 13 (Art. 13) provides as follows.

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy before a

      national authority notwithstanding that the violation has been

      committed by persons acting in an official capacity."

      The Commission recalls Article 13 (Art. 13) cannot be interpreted

so as to require a remedy in domestic law in respect of any supposed

grievance under the Convention: the grievance must be an arguable one

in terms of the Convention.  Moreover, the European Court of Human

Rights has pointed to the link between the notion of "arguable claim"

in its own case-law and the notion of "manifestly ill-founded" in

Article 27 (Art. 27) of the Convention (Eur. Court H.R., Boyle and Rice

judgment of 27 April 1988, Series A no. 131, p. 23, paras. 52 and 54).

The Commission has found the applicants' claims under Article 10

(Art. 10) to be manifestly ill-founded.  It also finds the claims under

Article 13 (Art. 13) to be not arguable.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission                 President of the Commission

      (H.C. Krüger)                                (C.A. Nørgaard)

                               A N N E X

                          List of applicants

1.    BRIND, Donald Malcolm, British, born in 1947, television producer

      for the BBC, resident in London

2.    EMERY, Fred Albert, British, born in 1933, television journalist

      for the BBC, resident in London

3.    GRAHAM, Alexander, British, born in 1953, independent television

      producer and editor, resident in London

4.    LEONARD, Victoria, British, independent radio producer, resident

      in London

5.    McGWIRE, Scarlett, British, born in 1954, broadcast journalist,

      resident in London

6.    PILGER, John Richard, Australian, television and radio presenter

      and journalist, resident in London

7.    NASH, Thomas Edward, British, born in 1933, clerk, resident in

      London

 

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