Information Note on the Court’s case-law 47
November 2002
Demuth v. Switzerland - 38743/97
Judgment 5.11.2002 [Section II]
Article 10
Article 10-1
Licensing of broadcasting enterprises
Refusal of licence to broadcast programme on cars via cable television: no violation
Facts: The applicant requested a licence for his company to broadcast a television programme about cars via cable television. The request was refused by the Federal Council, which considered that the programme was not able to offer “the required valuable contribution to comply with the general instructions for radio and television” as it focused mainly on “entertainment or on reports about the automobile”. The Radio and Television Act provides, inter alia, that radio and television must contribute to “general, varied and objective information to the public.”
Law: Article 10 – The third sentence of this provision permits States to regulate, by means of a licensing system, the way in which broadcasting is organised on their territories. While technical aspects are important in this respect, the granting of a licence may also be made conditional on other considerations, such as the nature and object of a proposed station, its potential audience at national, regional or local level, the rights and needs of a specific audience and international obligations. The licensing system in Switzerland, which includes instructions as to the purposes, functions and contents of television programmes, is capable of contributing to the quality and balance of programmes and is therefore consistent with the third sentence of Article 10 § 1. In the present case, it was not disputed that the interference had a legal basis. Moreover, it had the legitimate aim of contributing to the quality and balance of programmes, even if this aim did not correspond directly to any of the aims set out in Article 10 § 2. As to the necessity of the interference, the extent of the domestic authorities margin of appreciation had to be assessed in the light of the company's objectives. In that respect, while it could not be excluded that certain aspects of the proposed broadcast would have contributed to the public debate on the various aspects of a motorised society, the company's purpose was, the Court's opinion, primarily commercial. The margin of appreciation is broader in the field of commercial broadcasting and in view of the strong impact of audio-visual media on the public domestic authorities may aim at preventing a one-sided range of commercial programmes on offer. The particular political and cultural structure of Switzerland, a federal State, necessitated the application of sensitive political criteria such as cultural and linguistic pluralism, balance between lowland and mountain regions and a balanced federal policy and such such factors, encouraging pluralism in broadcasting, could legitimately be taken into account when authorising radio and television broadcasts. It did not appear unreasonable for the Federal Council to find that the conditions set out in the legislation had not been met. Furthermore, the decision was not categorical and did not exclude a broadcasting licence once and for all, the Federal Council having indicated that a licence could be granted if the content of the programme further contributed to the aims set out in the legislation. Consequently, it could not be said that the decision exceeded the domestic authorities' margin of appreciation.
Conclusion: no violation (6 votes to 1).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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