THE FACTS
The facts of the case, as submitted by the applicant, may be summarised
as follows:
The applicant, a Netherlands Company with its seat in Amsterdam, is
represented by Mr. S. K. Martens a lawyer practising in The Hague.
The applicant company is a publisher of "General Interest Magazines"
in the Netherlands and also a member of the "Groep Publicksbladen"
consisting of such publishers. It claims to be a victim of an
oppressive legal and factual situation arising from a combination of
the interpretation placed upon Article 10 of the 1912 Netherlands
Copyright Act (Auteurswet) by the Supreme Court (Hoge Raad) of the
Netherlands in its judgment of 1 March 1976 (Omroepwet) together with
the Royal Decree of 1 April 1969 (Omroep Besluit).
The applicant company submits that its present application is, in some
respects, a sequel to Application No 2690/65 (1) N. V. Televizier v.
the Netherlands. It will be recalled that, in that case, the applicant
company, publisher of a weekly magazine containing details of
forthcoming broadcasts, was sued for breach of copyright by an
organisation called the Centraal Bureau voor den Omroep in Nederland
and various broadcasting corporations. The applicant company finally
brought the case before the Commission which decided on 15 December
1966, that the application was admissible under Articles 10 and 14 of
the Convention. However, subsequently, on 3 October 1968, the
Commission struck the case off the list after the applicant company had
withdrawn the application and the respondent Government had indicated
its agreement. It appeared that the relevant provisions of the 1912
Copyright Act, on which the proceedings against the applicant company
were based, had been replaced by the Broadcasting Act of 1967 and the
Royal Decree of 1969, that the proceedings against the applicant
company were discontinued, and that the magazine "Televizier" was
absorbed into one of the five major broadcasting companies on
advantageous terms.
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(1) Collection of Decisions No 21, p. 90
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In support of its present application, the applicant company first
gives an outline of the broadcasting legislation which entered into
force on 29 May 1969.
Articles 13 and 14 of the Broadcasting Act specify certain criteria by
which a " broadcasting organisation" (omroeporganisatie) might be
recognised. In addition, Article 39 of the Act creates a national
corporation, the Netherlands Broadcasting Corporation (Nederlandse
Omroep Stichting = N.O.S.) as an "organ for co-operation of the
broadcasting organisations". Under Article 27 of that Act these various
organisations fall into one of three classes for the purpose of
allocating broadcasting time depending on the size of their registered
membership. Article 23 of the 1967 Act and Article 13 of the Royal
Decree prescribe that any broadcasting organisation to which time has
been allocated must send the relevant data concerning their programmes
to the N.O.S. Article 23 also provides that the N.O.S. may only make
available the "complete programme data" for publication to broadcasting
organisations to which broadcasting time has been allocated. When the
"complete programme data" have been approved by the NOS and forwarded
to the broadcasting organisations, Article 14 of the Decree specifies
that the said organisations may publish the data in their Programme
Magazines which Article 14 (3) defines as being "a weekly, that is
edited by or under instructions of a broadcasting organisation or
applicant broadcasting organisation and that in principle is only
intended for its members or contributors ..." Article 15 of the Decree
makes provision for the programme data to be summarised by the NOS once
a week and for this summary to be made available to daily papers and
newspapers which appear at least three times a week in the Netherlands.
Article 16 of the Decree provides for such summaries also to be made
available to foreign broadcasting organisations and to editors of
foreign papers. Finally, Article 22 of the 1967 Broadcasting Act
provides that any "reproduction or publication of lists or other
statements of those programmes otherwise than on behalf of or with
authorization of the Corporation" constitutes a breach of copyright and
entails civil liability.
The applicant company submits that, on 28 October 1969 it petitioned
the NOS with a request that either all programme data be made available
for publication in its "General Interest Magazine" or, alternatively,
that NOS should negotiate to permit the applicant to publish a
"Programme Magazine" on behalf of NOS. By a letter of 9 December 1969
NOS rejected the first request on the basis of Articles 22 and 23 of
the 1967 Act and dismissed the alternative as contrary to the spirit
of Article 23 of the Act in conjunction with Article 14 the Royal
Decree.
The applicant company, regarding the NOS as "an administrative organ
of the central Government" for the purpose of Articles 1 and 2 of the
Act for Appeal from Administrative Decrees (Wet Beroep Administratieve
Beschikkingen), lodged an appeal in conformity with the above Appeals
act to the Queen. The appeal alleged that Article 23 of the
Broadcasting Act should not be construed as forbidding NOS to make
available programme data to "General Interest Magazines", and that the
provisions of the broadcasting legislation violated Articles 10 and 14
of the European Convention on Human Rights. The appeal was declared
inadmissible by a Royal Decree dated 8 April 1971 on the grounds that
the NOS could not be deemed to be "an administrative organ of the
central Government" as it was not vested with any public authority but
was the co-operation body of the broadcasting organisations which are
independent private-law legal persons.
Complaints
The applicant company now complains to the Commission that both the
Supreme Court's interpretation of Article 10 of the Netherlands
Copyright Act in its judgment of 25 June 1965 and particularly the
legislation regarding the publication of radio and television programme
data is inconsistent with Article 10 of the Convention and amounts to
discrimination within the meaning of Article 14 of the Convention.
The applicant company maintains above that Article 22 of the 1967
Broadcasting Act has created, in favour of the Broadcasting
organisations, an absolute right or monopoly regarding the publication
of programme data. This clearly violates their right freely to receive
an impart information as well as the right of the public to be advised
on the oncoming programmes by impartial publications.
The applicant company further alleges that in any event the law
regarding copyright has been changed greatly to the disadvantage of
publishers of "General Interest Magazines" in several ways. For
instance, under Article 10 of the Copyright Act copyright existed for
programme writings only and not for programme data, and by the judgment
of the Netherlands Supreme Court of 25 June 1965 only "... with respect
to writings without distinctive or personal character ... if they have
been published or if they are meant to be published". However, the new
legislation has, inter alia, removed these qualifications in the 1965
judgment and thus even the "avant-programme" data of the broadcasting
organisations, which are never used for publication, may now be covered
by copyright. Furthermore, prior to the 1967 Act and the Royal Decree
the burden of proof lay upon those broadcasting organisations seeking
to prove an infringement of copyright. The Broadcasting Act has
reversed this burden, thus imposing the obligation on those who publish
to prove that their material does not breach another's copyright.
In the applicant company's submission the general effect of this
legislation on the publishers of General Interest Magazines has been
severe. The broadcasting organisations have developed their Programme
Magazines into attractive publications of a "general interest" format,
offering precisely the same reading as the "General Interest
Magazines", including topical information and comment, sports,
amusements, stories, puzzles etc., in addition to the complete radio
and television programmes which have considerable "news value". It was
true that Article 20 of the NOS Statute seeks to prevent this very
trend, and the applicant company has allegedly complained to the
Minister responsible, concerning observance of Article 20, but without
success. In consequence the circulation figures of the "General
Interest Magazines" are dwindling. In addition, advertisers, noticing
the increasing popularity of the "Programme Magazines" which now enjoy,
in effect, a monopoly of broadcasting data, are shifting their orders
away from "General Interest Magazines" thus causing a further threat
to such publications.
The applicant company's allegations can thus be summarised as follows:
1. The interpretation placed upon Article 10 of the 1912 Copyright
Act by the Netherlands Supreme Court in its judgment of 25 June 1965
concerning programme writings "without distinctive or personal
character" constitutes a violation of Articles 10 and 14 of the
Convention. In this connection the applicant refers to the submissions
of the applicant in Application No 2690/65, N. V. Televizier v. the
Netherlands, which it fully endorses.
2. The absolute right to publish "complete programme data" conferred
on the broadcasting organisations by the NOS in its interpretation of
the Broadcasting Act and the Decree of 1969 constitutes a breach of
Article 10 of the Convention. It imposes a restriction on the free
circulation of impartial information concerning news and other
broadcasting programmes which is unjustifiable in a democratic society.
Furthermore, the exceptions provided for in Article 10 (2) of the
Convention are inapplicable in this case for the following reasons:
neither the Broadcasting Act nor the Royal Decree are intended as a law
within the meaning of that provision; furthermore the phrase "rights
of others" in that paragraph may only refer to rights protected by the
Convention and the monopoly of programme data cannot be regarded as
such a right; finally, and in the alternative, the national legislator
is not at liberty to create "rights of others" which are not "necessary
in a democratic society" and granting an absolute right to publish such
information as programme data to a restricted group is certainly
contrary to the principles of a democratic society.
3. The aforementioned inequality in the competitive positions of the
"Programme Magazines" and the "General Interest Magazines", arising
from the broadcasting legislation, violates Article 14 of the
Convention.
4. The distinction in Article 15 of the Royal Decree of 1969 between
publishers of daily and three-times-weekly papers and the "General
Interest Magazines", such that the former are permitted to publish a
summary of programme data whereas the latter are not, is discriminatory
and violates Article s 10 and 14 of the Convention.
5. The permission granted by Article 16 of the Royal Decree of 1969
to "General Interest Magazines" abroad to publish summaries of the
programme data is discriminatory and violates Articles 10 and 14 of the
Convention.
The applicant company finally submits that no further domestic remedies
are available to it in the Netherlands but proposes to elaborate
further on this point if this should be required.
It requests the Commission to accept the present application and to
ensure that the respondent Government stop the alleged violations of
the Convention by taking such measures as will make available the
complete programme data to the applicant company for publication in its
"General Interest Magazines" and/or in such other magazines as it may
deem fit, possibly against payment of a fair and reasonable
remuneration.
PROCEEDINGS
A group of three members of the Commission considered the application
on 2 October 1972 and was unanimously of the opinion that, in the
present state of the file, it appeared to be admissible. Consequently,
the President of the Commission on the same date made an order in
accordance with Rule 45, 2 of the Commission's Rules of Procedure that
notice of the application should be given to the Netherlands Government
who should be invited to submit to the Commission their observations
in writing on its admissibility.
The Government submitted such observations on 21 February 1973 and the
applicant company's lawyer replied on 15 June 1973.
SUBMISSIONS OF THE PARTIES
1. The respondent Government first submitted that, insofar as the
applicant company referred to arguments put forward in Application No
2690/65 (Televizier v. the Netherlands), without repeating them in this
application, they could not be discussed here. Moreover, the present
case was different insofar as, contrary to the Televizier Case, the
present applicant sought to force the Netherlands Government to take
measures whereby the broadcasting organisations and the NOS should be
compelled to release data which they possessed.
The Government then outlined the history and the present state of the
broadcasting legislation as well as the actual situation in the
Netherlands.
Thus, under the Telecommunication Act (Telegraf- en Telefoonwet) 1904,
as amended in 1928, the existence of broadcasting organisations, whose
object was the transmission of wireless broadcasts and who were
established in the 1920's, was formally accepted. Transmission time was
allocated to these broadcasting organisations if they could show that
their aim was to satisfy the cultural or religious needs felt among the
people to such an extent that their transmissions would, on that
account, be deemed as serving the common good.
During World War II the occupation authorities set up a State-owned
enterprise, but after the war the private broadcasting organisations
returned and resumed their transmission. Under temporary regulations
the transmissions were financed by levying a radio-licence fee. All
other expenses of the broadcasting organisations were covered by
contributions from their members, either in the form of subscriptions
to the organisation's weekly magazines or as simple contributions. This
system was incorporated in the Broadcasting Act 1967 which came into
effect on 29 May 1969.
The respondent Government next turned to the two basic ideas on which
the Netherlands broadcasting system was founded namely the principle
of openness of the system and the requirement of co-operation within
the system. As regards the principle of openness the Government
explained that the number of members of or contributors to a particular
broadcasting organisation, as established by means of periodic surveys,
determined both the question of whether or not transmission time was
at all to be allocated to that organisation and the amount of its
transmission time. Using such criterion of numbers was fully in
conformity with the principles of a democratic society and should be
viewed within the context of the requirement laid down by Article 13
(2) (iii) in conjunction with Article 35 (2) of the Broadcasting Act,
that for broadcasting organisations to receive a licence they should
transmit a complete programme which should include at least elements
of a cultural, informative, educational and entertaining nature in
reasonable proportion.
There were presently operating in the Netherlands seven such
broadcasting organisations, two of which had only recently been granted
transmission time. Dutch law also provided for so-called "prospective
broadcasting organisations" who were allocated transmission time for
a period not exceeding two years during which period they had the
opportunity of developing into full-fledged broadcasting organisations.
In addition, transmission time might also be granted to religious
bodies, associations founded on ethical principles, political parties
or other institutions who aimed at satisfying certain cultural,
religious or spiritual needs felt among the people and not otherwise
provided for by existing programmes (Articles 16-19 of the Broadcasting
Act).
The second requirement, that of co-operation, was satisfied in
particular by the existence of the NOS, the Netherlands Broadcasting
Foundation, being a body within which all broadcasting organisations
having obtained transmission time co-operated. The NOS acted as a
coordinating body with the provision that it should not concern itself
in any way with the preparation and composition of the programmes of
the various organisations. Nevertheless, the NOS was responsible for
featuring joint programmes for which it was granted transmission time
of its own.
Under Article 23 of the Broadcasting Act, the broadcasting
organisations were required to make available to the NOS lists of the
programmes which they proposed to broadcast. Such lists were normally
sent about three weeks prior to the date of the broadcasts in question.
The NOS added its own programme lists and sent the compilation to each
of the broadcasting organisations.
Furthermore, the NOS prepared a short summary of the lists submitted
to it and sent it to the Netherlands Daily Newspaper Publishers'
Association (Nederlandse Dagbladpers) and to the Netherlands Newspaper
Publishers' Association (Nederlandse Niewsbladpers) for publication in
the daily and other newspapers appearing in the Netherlands. A similar
summary was also sent to a number of foreign broadcasting
organisations, on a basis of reciprocity, for publication in their
programme magazines.
The Government submitted that the programme magazines published by the
broadcasting organisations played an important part in the Netherlands
broadcasting system. The seven organisations represented the various
sections of society such as Liberals, Conservatives, Socialists,
Protestants (both orthodox and liberal), Roman Catholics and
Independents, and the number of the members of each broadcasting
organisation determined its position within the system. The link
between the organisations and their members was magazines, which thus
also yielded the funds necessary for the organisation's broadcasting
activities. Furthermore, such link was a natural one, as a person would
choose a programme magazine published by the broadcasting organisation
whose transmissions represented his own religious or ideological
thoughts and objectives.
After having thus described the system prevailing in the Netherlands,
the respondent Government turned to the question of the admissibility
of the present application.
The Government noted that the applicant company not only requested the
Commission to put an end to alleged violations of the Convention but
also to require the Government to take such measures as would ensure
that the complete programme data would become available to the
applicant company for publication.
Dealing first with the applicant's latter request, the Government
maintained that such result was not contemplated by Article 10 (1) of
the Convention. It was true that the right to freedom of expression
included the freedom "to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers". This meant that, where information was
offered or ideas were expressed, public authority might not prevent a
person from receiving that information or taking cognisance of those
ideas. However, the Convention did not give a person access to
information or ideas which the holder wished to keep for himself or to
make accessible only to certain persons of his choice and on his own
conditions.
As regards the applicant company's complaint under Article 10 as such
the Government submitted that it was manifestly ill-founded. Indeed,
the broadcasting organisations were fully entitled to refuse the
disclosure of information concerning their programme to persons whom
they did not wish to profit from their exertions, the more so as such
programmes constituted the principal means by which the organisations
could expound their message and give expression to their character.
It was true that the law made special provision requiring that the
complete programmes should be made available, via the NOS, to all
broadcasting organisations who should be permitted to publish these
programmes in their respective magazines. Nevertheless, under Article
23 of the Broadcasting Act and Article 14 of the Broadcasting Decree
each organisation had the right itself to determine when, how, and to
what extent its programmes should be published, and this right was
protected under Article 22 of the said Act. The argument, that this
protection might overstep the limits of copyright as it was generally
understood was irrelevant for the purpose of answering the question
whether or not Article 10 of the Convention had been violated. Indeed
the protection of the right of broadcasting organisations to deny
publication of their programmes to other persons was justified by the
aims which it sought to achieve and had, in fact, achieved.
In this context the Government also replied to certain allegations by
the applicant company concerning the interpretation placed on Article
10 of the Copyright Act by the Netherlands Supreme Court. They
submitted that the Broadcasting Act did not grant a monopoly on "data"
but only protected programme writings, i.e. written statements or lists
containing programme information. The Act was thus perfectly consistent
with Article 10 of the Copyright Act and its interpretation by the
Supreme Court, having regard to the legitimate interest of the
broadcasting organisations in having the exclusive right to publish
their programme lists and to use their publication in order to
strengthen their ties with their members.
On the other hand, the present application appeared to be inspired
solely by the applicant company's wish to derive advantage, for its own
benefit, by utilising for commercial purposes the results of other
people's work. Yet, the applicant company's interests were sufficiently
protected by measures restricting the sale of programme magazines to
persons other than members of the broadcasting organisations, by
requiring that programme magazines must confine their subject matter
solely, or almost solely, to broadcasting, broadcasting organisations,
and programmes, (e.g. the magazines may not publish other subject
matters in excess of 10% of their total contents during a calender
month, on a maximum of five pages of an issue which is cut in a format
of about 26 x 36 cm), and by prohibiting broadcasting organisations to
make their magazines look like general magazines or to combine them
with such general magazines.
Apart from this, the Government contended that, even if there were an
interference with the applicant company's rights under Article 10 (1),
such interference was justified as being "prescribed by law and ...
necessary in a democratic society ... for the protection of the ...
rights of others ..." within the meaning of Article 10 (2) of the
Convention. The applicant's interpretation of the term "rights of
others" in a sense that only rights protected by the Convention might
enjoy protection under that provision of the Convention provided that
they were, as in the present case, necessary in a democratic society.
Moreover, the Government were unable to understand why the Broadcasting
Act and the Broadcasting Decree which were enacted in accordance with
normal legislative procedure under the Netherlands Constitution should
not be considered as "laws" within the meaning of Article 10 (2) of the
Convention.
The Government lastly submitted that there could be no question of
discrimination within the meaning of Article 14 of the Convention as
publication of the programme writings was not denied on any of the
grounds mentioned in that Article, but on legitimate grounds of
protecting the rights of others.
For these reasons the respondent Government submitted that the
application should be declared inadmissible as being manifestly
ill-founded.
2. The applicant company, in its written observations of 15 June
1973, first pointed out that it maintained in full its original
application and the arguments submitted therein.
In summarising the present situation under the Netherlands broadcasting
system the applicant submitted that the broadcasting organisations had
become regular competitors of the editors of "General Interest
Magazines" in that they were publishing "Programme Magazines" which for
all practical purposes were quite equal to ordinary magazines except
for the fact that the former contained the complete programme data
which the latter were not allowed to publish. It was true that there
were several provisions aimed at preventing "Programme Magazines" from
assuming the character of "General Interest Magazines", but these were
not observed by the broadcasting organisations and the Government
undertook nothing to enforce these provisions. Indeed, this had been
realised by Members of Parliament already when the Broadcasting Bill
was discussed in Parliament. The allegation that membership in a
broadcasting organisation reflected the members' religious or
ideological thoughts was simply no longer true: market analyses had
shown that in many cases it was not his preference for the political,
religious or cultural principles for which the broadcasting
organisation stood that determined the subscriber's choice, but rather
the attractiveness of that organisation's "Programme Magazine".
Consequently, since the number of members determined whether or not a
broadcasting organisation was recognised as such and what broadcasting
time should be allocated to it, it was natural that the organisations
were striving for the favours of the public by using all means, and
particularly by making their "Programme Magazine" as attractive as
possible.
In support of these allegations the applicant company submitted
statistical data which had been collected by NIPO, a well known Dutch
survey organisation, in November 1971. According to this survey, 75%
of all persons questioned were subscribers to a programme magazine, of
the Roman Catholic organisation (KRO), out of 100 Protestants only 25
subscribed to the NCRV magazine, and of those who said that they would
vote socialist only 44% were subscribers of the VARA magazine.
Furthermore, only 47% of the subscribers to a programme magazine
considered themselves to be members of the respective broadcasting
organisation and only 31% had said that they became members of the
organisation to whose magazine they subscribed because they agreed with
the principles for which that broadcasting organisation stood. On the
other hand, 33% had chosen the broadcasting organisation because they
liked its "Programme Magazine" and this percentage was even higher with
respect to the individual broadcasting organisations where the above
reason was indicated by subscribers to the programme magazine of the
VARA (53%), AVRO (50%), TROS (41%), NCVR (35%) and KRO (34%).
Moreover, it was hardly correct to suggest that the broadcasting
organisations expressed their character and objectives in their
programme magazines. For instance, during the week of 20 to 26 May 1973
the KRO magazine had devoted only 41/2 out of 88 pages to subjects which
might be considered as expressing that organisation's character and
objective, the VARA magazine 4 out of 64 pages, the AVRO magazine 3 out
of 55 pages, the VPRO magazine 2 out of 64 pages, the TROS magazine 2
out of 160 pages, and the EO magazine 1 out of 56 pages.
In the applicant company's submission, the Government themselves had
admitted that Article 22 of the Broadcasting Act created an exclusive
right to mere factual data and had justified this by pointing out that
the programmes were the result of much thought, effort, inventiveness
and organising skill and also constituted the principal means by which
the broadcasting organisations could expound their message and give
expression to their character. However, the Government confused
"programmes" with "programme data", the latter meaning lists of items
and of performers, with which the present applications was solely
concerned. In the applicant's submission these were not the result of
much thought, effort, inventiveness and organising skill and they
concerned mere facts, such as the day and time when a particular
broadcasting organisation transmitted a particular programme. Perhaps
the contents of such broadcasts and also the special "mixture" of
cultural, informative, educational and entertaining elements which each
organisation was obliged to include in its broadcasts should be
protected against imitation by other organisations, but it was not
possible to protect on that ground the mere fact of the broadcasts.
Thus it was also not possible to maintain that those who wished to
publish such programme data were seeking an unfair advantage by using
the results of other people's efforts and skills. Otherwise it would
equally be justified to accuse newspapers which published programme
data of football matches or of theatre plays that they were preying on
the efforts and skills of football-clubs and/or their teams or
respectively on those of the theatrical companies.
Furthermore, the Government's allegation that the broadcasting
organisations needed the money which they received from their members
in the form of subscriptions to their programme magazines in order to
finance their broadcasting activities was simply not true. In fact,
under Article 58 of the Broadcasting Act "institutions to which
broadcasting time has been allocated will receive from Our Minister an
allowance that is equal to the total of their expenditure approved by
him". Thus broadcasting was, in principle, wholly financed from public
funds which were derived from the fees which every owner of a
television/or wireless set had to pay, and from the yields of
television advertising. But even if it were true that the broadcasting
organisations needed the profits from the subscription to their
programme magazines for their broadcasting activities, the legislature
could have adopted the arrangements proposed by the Advisory Committee
on Broadcasting Legislation which allowed publication of the complete
programme data by all interested members of the press against payment
of a fair and reasonable retribution. However, for the reasons already
given the broadcasting organisations had opposed such a solution.
The applicant company then dealt with the respondent Government's
submissions concerning the Supreme Court's interpretation of Article
10 of the Copyright Act. It maintained that its previous allegations
on this point were relevant insofar as they tended to show that the
restrictions on copyright protection imposed by the Supreme Court in
respect of "writings without a distinctive personal character" to the
extent that such writings had been published or were meant to be
published, had only one purpose namely that of preventing that
copyright from degrading into a monopoly of mere factual data.
Nevertheless, the Broadcasting Legislation in fact went beyond the
scope of the Court's interpretation of the Copyright Act and the
proposals of the Government's Standing Advisory Committee on Copyright
when the new Bill was discussed in Parliament.
The Government denied that the Broadcasting Act created a monopoly on
mere factual data and it was true that the Act did not do so in so many
words. However, in the applicant company's submission, its effect
brought about such result. Indeed, the Government had themselves
admitted that the purposes of Articles 22 and 23 of the Act was to
protect the exclusive right of the broadcasting organisations to
publish the complete programme data in their "Programme Magazines" and
to deny such publication to others.
In the applicant company's further submission, the Government's claim
that the application was manifestly ill-founded under Article 10 or 14
of the Convention rested on a misunderstanding of the applicant's
complaints.
First of all, reference to the Televizier Case was quite relevant, as
the applicant maintained that, apart from the broadcasting legislation,
already the construction which the Supreme Court placed on Article 10
of the Copyright Act by including "writings without distinctive or
personal character" constituted a violation of Article 10 and/or
Article 14 of the Convention. To that extent it had endorsed, and fully
made its own, the arguments submitted by the applicant in the
Televizier Case.
Secondly, the applicant company had not alleged that Article 10 of the
Convention imposed an obligation on the broadcasting organisations to
made the complete programme data available to the editors of "General
Interest Magazines" nor had it demanded that the respondent Government
should compel these organisations to do so. Indeed, the question
whether or not Article 10 of the Convention included the right to
information was an interesting one but was not the subject of
discussion in this case.
The present case was rather based on the thesis that, by making
unlawful the publication of the complete programme data, i.e. a full
weekly programme and not simply the programme for a few days to come,
for all except the broadcasting organisations, the broadcasting
legislation interfered with the applicant company's right under Article
10 of the Convention, freely to impart information, and with everyone's
right under the same provision freely to receive such information.
Furthermore, insofar as the broadcasting legislation was especially
designed to prevent the publishers of "General Interest Magazines" from
publishing the complete programme data, and thus from the enjoyment of
their rights under Article 10 on no other ground than that their
magazines were competitive with the "Programme Magazines", this
legislation was discriminatory within the meaning of Article 14 of the
Convention. In this context the applicant company submitted that a
short summary of the programme data was allowed to be published by the
Dutch daily and other newspapers and by foreign "General Interest
Magazines" sold in the Netherlands and of which some were written in
Dutch.
The applicant company finally submitted that the interference
complained of was not justifiable under paragraph (2) of Article 10 of
the Convention. In this connection it explained that neither the
Broadcasting Act nor the Decree could be considered as "laws" within
the meaning of that provision. "Laws" within that meaning required that
the legislature had consciously and conscientiously balanced the right
to freedom of expression against other interests. This the legislature
had failed to do in respect of the broadcasting legislation as it had
consistently refused to acknowledge even the possibility that the
provisions granting an exclusive right to publish programme data might
be understood as a restriction of the freedom of expression guaranteed
under Article 10 (1) of the Convention.
In the applicant company's further submission, the term "rights of
others" in Article 10 (2) of the Convention referred only to such
rights which were protected under the Convention. Otherwise the
national legislature would have vast freedom arbitrarily to restrict
the right to freedom of expression, the only limitation then having to
be found in the words "necessary in a democratic society" which were
rather vague.
Indeed, the system contemplated by the broadcasting legislation in the
Netherlands could not be considered "necessary in a democratic
society". It was certainly not sufficient to refer to the fact that the
Government and Parliament of a democratic country had found such
restriction to be necessary, for, although the Contracting States had
a certain margin of appreciation in determining the limits that might
be set to the exercise of the right to freedom of expression, their
judgment was clearly open to supervision, inter alia by the Commission.
Furthermore, it was equally not sufficient simply to find justification
for the creation of exclusive rights, as the question was not whether
or not the interference was justified but whether or not it was
necessary. The applicant company maintained that it was not and
submitted in this context that, according to its information, no other
country provided for such exclusive right with regard to the
publication of data of radio and television programmes. On the
contrary, nearly everywhere else such data were considered as "news"
which was available to the entire press for free and complete
publication.
For these reasons the applicant company submitted that its application
was not manifestly ill-founded and should therefore be accepted by the
Commission.
THE LAW
The applicant company has complained that the restrictions imposed by
legislation in the Netherlands on the publication of radio and
television programme data are inconsistent with Article 10 (Art. 10)
of the Convention and amount to discrimination within the meaning of
Article 14 (Art. 14).
The Netherlands Government have submitted hat the application is
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention. They maintained that Article 10
(Art. 10) of the Convention does not grant the applicant company the
right to receive information from third persons in order to impart it
further for commercial purposes. In any event, any restrictions imposed
on the publication of the programmes concerned are necessary in the
broadcasting system established in the Netherlands in order to protect
the interests of the broadcasting organisations, both financially and
otherwise, and they are therefore justified under paragraph (2) of
Article 10 (Art. 10-2). Furthermore, there is no question of a
violation of Article 14 (Art. 14) of the Convention as the publications
concerned are not prohibited on any grounds mentioned in that Article,
but on the legitimate ground of protecting the rights of others.
Article 27 (2) (Art. 27-2), of the Convention in requiring the
Commission to declare inadmissible any application from an individual,
a group of individuals or non-governmental organisation which it
considers to be manifestly ill-founded, does not permit the Commission,
at the stage of admissibility, to reject a complaint which cannot be
so described (see, for example, decisions on the admissibility of
Applications No 1474/62 and No 1769/63, Collection of Decisions, Vol.
II, pp. 50 and 59). In the present case the Commission has carried out
a preliminary examination of the information and arguments submitted
by the parties with regard to the applicant company's complaints under
Articles 10 and 14 (Art. 10, 14) of the Convention. The Commission
finds that these raise substantial issues of law and of fact and are
of such complexity that their determination should depend upon an
examination of their merits. It follows that they cannot be regarded
as manifestly ill-founded within the meaning of Article 27 (2)
(Art. 27-2), of the Convention, and no other ground for declaring the
application inadmissible has been established, or has even been
alleged.
For these reasons the Commission DECLARES ADMISSIBLE and retains the
application, without in anyway prejudging the merits of the case.