Communicated on 18 November 2019
FIFTH SECTION
Application no. 2591/19
Ani GACHECHILADZE
against Georgia
lodged on 13 December 2018
SUBJECT MATTER OF THE CASE
The applicant is an individual entrepreneur producing condoms under the brand name “Aiisa”. The application concerns the applicant’s complaint that there had been an interference with her right to freedom of expression, contrary to Article 10 of the Convention, on account of the fact that she was fined for advertising deemed to be contrary to public morals, and was ordered to make a product recall in respect of four designs.
Noting that the applicant had used unethical advertising in respect of four of her products, and posted those on the brand’s Facebook profile, the Supervision Service of the Tbilisi City Hall made an administrative-offence report, and sent the case to a first-instance court for consideration. The first‑instance court found that the advertising used by the applicant had been unethical, within the meaning of the Advertising Act, and fined her 500 Georgian laris (GEL, approximately 165 Euros (EUR)). It also ordered the applicant to refrain from using and disseminating such designs on products or in the social media, and to make a product recall in respect of the already distributed products. According to the court, texts printed on the packaging and published on social media alluded to, respectively, the baptism of Christ; the Didgori battle between the armies of the Kingdom of Georgia and the Great Seljuk Empire, an important historical event; King Tamar of Georgia canonised by the Georgian Orthodox Church; and the fourth design contained an image of two fingers inserted in a condom, alluding, according to the court, to the “blessing hand” - the hand gesture used by priests in sermons, and depicted in iconography. Such advertising was considered to have been unethical, and contrary to public morals. The applicant appealed noting that even if the posts in the social media were to be regarded as advertising, the designs on the packaging had constituted an artistic expression and an integral part of the product, and the court’s decision had amounted to censorship lacking sufficient justification. The ruling of the first-instance court was upheld by the Tbilisi Court of Appeal sitting as a court of second and final instance.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention?
If so, was that interference justified in terms of Article 10 § 2 (see, among other authorities, Sekmadienis Ltd. v. Lithuania, no. 69317/14, §§ 70-74, 30 January 2018)?
In this context,
(a) Which type of speech, within the meaning of Article 10 of the Convention, was at issue in the present case? In particular, did the text and images used on the packaging constitute advertising, artistic expression, political speech, or speech designed to contribute to a debate on matters of public interest?
(b) Did the domestic courts provide sufficient reasons when considering the relevant text and images as commercial advertising?
(c) Did the domestic courts provide sufficient reasons for their decisions in respect of each of the four images and/or texts concerned? On what particular grounds was each of such designs considered contrary to public morals?
The parties are requested to submit to the Court a printed copy of the minutes of the proceedings before the domestic courts.
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