AS TO THE ADMISSIBILITY OF
Application No. 15404/89
by Betty PURCELL et al.
against Ireland
The European Commission of Human Rights sitting in private
on 16 April 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
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 11 August 1989
by Betty Purcell and others against Ireland and registered on
28 August 1989 under file No. 15404/89;
Having regard to:
- the observations submitted by the respondent Government on
18 May 1990 and the observations in reply submitted by the
applicants on 31 July 1990;
- the submissions of the parties at the hearing on 16 April 1991;
Having deliberated;
Decides as follows:
THE FACTS
The application is brought by:
- Ms Betty Purcell and sixteen other Irish citizens; they are
journalists or producers of radio or television programmes, employed
by Radio Telefis Eireann (RTE) (see complete list in the Annex);
- the National Union of Journalists;
- the Services Industrial Professional Technical Union.
The individual applicants are members of one or other of the
two aforementioned trade unions.
The applicants are represented in the proceedings before the
Commission by Anne Neary & Co., solicitors in Dublin.
The facts of the case, as submitted by the parties, may be
summarised as follows:
The application concerns alleged restrictions on the
applicants' freedom of expression, resulting from a ministerial Order
made under Section 31 of the Broadcasting Authority Act 1960 (as
amended by Section 16 of the Broadcasting Authority (Amendment) Act
1976).
The relevant provisions of the amended Section 31 of the 1960
Act are as follows:
"(1) Where the Minister is of the opinion that the
broadcasting of a particular matter or any matter of a
particular class would be likely to promote, or incite to,
crime or would tend to undermine the authority of the State,
he may by order direct the Authority to refrain from
broadcasting the matter or any matter of the particular
class, and the Authority shall comply with the order.
(1A) An order under subsection (1) of this section shall
remain in force for such period not exceeding twelve months
as is specified in the order and the period for which the
order is to remain in force may be extended or further
extended by an order made by the Minister or by a
resolution passed by both Houses of the Oireachtas providing
for its extension; provided that the period for which an
order under the said subsection (1) is extended or further
extended by an order or resolution under this subsection
shall not exceed a period of twelve months."
The Section 31 Order in force at the time the application was
introduced is S.I. No. 3/1989 which provided that an earlier Order
(S.I. No. 13/1987) was to remain in force until 19 January 1990.
Under S.I. No. 3/1989, RTE is directed to refrain from
broadcasting any matter which is:
"(1) an interview, or a report of an interview, with a
spokesman or with spokesmen for any one or more of the
following organisations, namely:
(a) the organisation styling itself the Irish
Republican Army (also the IRA and Oglaigh ne
hEireann):
(b) the organisation styling itself Sinn Fein;
(c) the organisation styling itself Republican
Sinn Fein;
(d) the organisation styling itself the Ulster
Defence Association;
(e) the organisation styling itself the Irish
National Liberation Army (also the INLA);
(f) any organisation which in Northern Ireland
is a proscribed organisation for the purposes
of section 21 of the Act of the British Parliament
entitled the Northern Ireland (Emergency Provisions)
Act, 1978.
(2) A broadcast, whether purporting to be a party
political broadcast or not, made by, or on behalf of, or
advocating, offering or inviting support for, the
organisation styling itself Sinn Fein or the organisation
styling itself Republican Sinn Fein.
(3) A broadcast by any person or persons representing, or
purporting to represent, the organisation styling itself Sinn
Fein or the organisation styling itself Republican Sinn Fein."
In order to comply with the terms of the Section 31 Order,
guidelines were issued by the RTE Authority in 1978 and
re-issued in 1989. The effect of these guidelines has been summarised
by the applicants as follows:
- RTE staff are prohibited from broadcasting any interviews
with, or recording of statements uttered by any person whom
they know to be a member of one of the organisations listed
in the Section 31 Order;
- RTE staff are required to ascertain in appropriate
circumstances whether a person is a member of a proscribed
organisation within the meaning of the Section 31 Order;
- RTE staff must obtain clearance from the Divisional Head
concerned prior to broadcasting any news feature or
current/public affairs programmes relating to Northern
Ireland;
- the prohibition on publishing any interview statement,
comment or otherwise by a member of a listed organisation
within the meaning of Section 31 extends to any subject
matter, such as nature programmes, education, drugs
problems, etc;
- coverage by news programmes or current affairs
programmes of meeting or press conferences involving
representatives of listed organisations within the
meaning of the Section 31 Order must use mute film or
stills to illustrate such reportage, and the reading out of
any statements or portions of statements by the RTE staff
member concerned;
- the guidelines require that in all matters concerning news
treatment of listed organisations the Head of News will,
where appropriate, consult with the Director-General.
- failure to comply with the guidelines could result in
dismissal of the staff member concerned.
Paragraph 4 of the guidelines indicates that in news bulletins
factual reportage is not prohibited by the Order and that statements
from the listed organisations "on significant developments, including
the acceptance or denial of responsibility for violence or other
unlawful activity" may be reported. Appropriate use of mute film or
stills to illustrate such reportage is permitted but "sound recording
or sound-on-film of a spokesman or spokesmen for any one or more of
such organisations, or interviews or reports of interviews with such
persons, is not permitted."
The organisation Sinn Fein which is referred to in the Section
31 Order is not an unlawful organisation under the Offences Against
the State Act 1939. Section 19 of the 1939 Act enables the Government
to declare certain organisations unlawful. By Section 21 of the 1939
Act membership of an unlawful organisation is made an offence. The
IRA has been declared to be an unlawful organisation under the 1939
Act, but Sinn Fein has not; it is a registered political party under
Section 13 of the Electoral Act 1963 which provides for a Register of
Political Parties.
The constitutional validity of Section 31 of the 1960 Act in
the light of the constitutional guarantee of freedom of expression
(Article 40.6.1.) was considered by the Supreme Court in the case of
The State (Lynch) v. Cooney (1982) IR 337. This case concerned the
validity of that part of a Section 31 Order made by the Minister of
Justice on 9 February 1982 which prohibited party political broadcasts
by Sinn Fein as well as broadcasts by any persons representing or
purporting to represent Sinn Fein (see similar provisions in paras.
2 and 3 of Section 31 Order above).
The relevant part of Article 40.6.1. of the Irish
Constitution provides as follows:
"6. 1° The State guarantees liberty for the exercise of
the following rights, subject to public order and morality:-
i. The right of the citizens to express freely
their convictions and opinions.
The education of public opinion being, however, a
matter of such grave import to the common good, the State
shall endeavour to ensure that organs of public opinion,
such as the radio, the press, the cinema, while preserving
their rightful liberty of expression, including criticisms
of Government policy, shall not be used to undermine public
order or morality or the authority of the State."
Chief Justice O'Higgins, delivering the judgment of the
Supreme Court on 28 July 1982, upheld the validity of Section 31 of
the 1960 Act (as amended) in the following terms (p. 361):
"The legislation deals with, amongst other things, the
control of freedom of expression and free speech within the
powers granted by s. 6, sub-s. 1, of Article 40 of the
Constitution. This provision enables the State, in certain
instances, to control these rights and freedoms. The basis
for any attempt at control must be, according to the
Constitution, the overriding consideration of public order
and public morality. The constitutional provision in
question refers to organs of public opinion and these must
be held to include television as well as radio. It places
upon the State the obligation to ensure that these organs
of public opinion shall not be used to undermine public
order or public morality or the authority of the State. It
follows that the use of such organs of opinion for the
purpose of securing or advocating support for organisations
which seek by violence to overthrow the State or its
institutions is a use which is prohibited by the
Constitution. Therefore, it is clearly the duty of the
State to intervene to prevent broadcasts on radio or
television which are aimed at such a result or which in any
way would be likely to have the effect of promoting or
inciting to crime or endangering the authority of the
State. These, however, are objective determinations and
obviously the fundamental rights of citizens to express
freely their convictions and opinions cannot be curtailed or
prevented on any irrational or capricious ground. It must
be presumed that when the Oireachtas conferred these powers
on the Minister it intended that they be exercised only in
conformity with the Constitution.
The Court is of the opinion that s. 31, sub-s. 1, of
the Act of 1960, as amended, does not confer on the Minister
the wide, unfettered and sweeping powers which have been
alleged by the prosecutor. The Court is satisfied that the
sub-section does not exclude review by the Courts and that
any opinion formed by the Minister thereunder must be one
which is bona fide held and factually sustainable and not
unreasonable. For these reasons the Court has come to the
conclusion that the invalidity alleged to attach to sub-s. 1
of s. 31 has not been established."
The Supreme Court reviewed the evidence adduced by the
Minister of Justice which was uncontroverted and which indicated that
Sinn Fein was "an integral and dependent part of the apparatus of the
Provisional I.R.A., an illegal terrorist organisation which, by both
its avowed aims and its record of criminal violence, is shown to be
committed to amongst other things the dismantling by violent and
unlawful means of the organs of the State ..." (per Mr. Justice
Henchy, at p. 381).
The Court considered that this evidence fully justified the
Minister's opinion that a broadcast made on behalf of or inviting
support for Sinn Fein, or broadcast by a person purporting to
represent that organisation, would have been likely to promote or
incite to crime or would have tended to undermine the authority of the
State. Accordingly, it was held that the Order made by the Minister
was not made ultra vires Section 31 (1) of the 1960 Act (as amended).
The individual applicants have submitted affidavits in which
they described in detail the effect of the Section 31 Order on their
capacity as broadcasters to receive and impart information. In
essence they claim that the effect of the Order and guidelines has
been gravely to distort coverage of all news events, current affairs
and social developments in Northern Ireland, to deter journalists
and/or producers from choosing to put on programmes relating to any
issue in Northern Ireland and to prevent journalists and producers
from complying with the requirement as to balance and impartiality in
its programmes produced. The applicants consider that Section 18 of
the 1960 Act (as amended) offers a sufficient safeguard against the
use of the broadcasting media to undermine the authority of the State.
This provision imposes inter alia a duty of impartiality on the RTE
Authority but also provides that no matter may be broadcast "which may
reasonably be regarded as being likely to promote, or incite to, crime
or as tending to undermine the authority of the State."
In their affidavits to the Commission the applicants submit
that the professional morale and competence of RTE journalists have
been significantly undermined. By way of illustration of the impact
of the Order on the role of television journalism they state inter
alia as follows:
- the restrictions prevent RTE staff from giving a balanced
account of many events as they are happening. During
elections campaigns RTE staff are not permitted to interview
candidates or broadcast statements or comments by candidates
from the listed organisations (i.e. listed in the Section 31
Order) who are running for election. They are also prevented
from interviewing members of listed organisations who hold
public office, such as Sinn Fein councillors;
- restrictions on coverage of Sinn Fein candidates,
notwithstanding that Sinn Fein is a lawful political party
in Ireland, mean that journalists could not cover press
conferences live but could only read out press statements
afterwards. This prevented the applicants from challenging
the candidates on their campaign manifesto or covering a
question and answer session in which journalists question the
organisation or its candidates about their campaign manifesto
or objectives. The restrictions have the effect of deterring
RTE staff from covering any story which might involve the
participation of a member of Sinn Fein whether as a local
councillor, local activist in a voluntary body or otherwise;
- the ban on interviewing a member of Sinn Fein or other
listed organisation is a blanket ban, irrespective of
the news story being covered. As one of many examples, the
applicants cite the coverage by RTE of an incident where a
teacher had been dismissed from a convent school where she
was teaching because she had become pregnant outside
marriage. The teacher had brought proceedings in the High
Court, claiming unfair dismissal and RTE could not interview
her because she was a member of Sinn Fein. It is claimed
that the mere recording of the woman's voice saying "no
comment" being broadcast on air resulted in the reporter
concerned being reprimanded;
- the restrictions particularly affect RTE staff working in
Radio na Gaeltachta which serves the Irish-speaking sector
of the country, presenting news, information and a full
range of programmes through the medium of the Irish
language. One of the applicants details his inability to
interview a recent chairman of Galway County Council who is
a fluent Irish speaker but also a member of Sinn Fein and
the difficulty of mounting programmes on areas such as the
state of the roads in the Connemara area. He also refers
to the fact that he could not use on his programmes a local
solicitor who has a specialist knowledge of Gaeltacht areas
because he happens to be a member of Sinn Fein;
- even programmes critical of Sinn Fein are subject to the
restrictions under the Section 31 Order. Thus in a
television programme reporting on the morality of voting for
Sinn Fein it was not possible to interview anybody from Sinn
Fein itself to represent their views in a panel discussion;
- the Section 31 Order has never been suspended to enable RTE
journalists to cover an election either in Ireland or in
Northern Ireland. The Order operated fully during the 1989
combined general election and European elections in Ireland
and the European elections in Northern Ireland. It is
pointed out that similar broadcasting restrictions imposed
by the United Kingdom Home Secretary on 19 October 1988 on the
BBC and the IBA were suspended for the duration of the
election campaign in Northern Ireland;
- the applicants point to the anomalous consequences of the
restriction in that they could not interview Gerry Adams,
MP, on a successful election to Westminster but were forced
to interview the losing candidate. The British and
Worldwide radio and television carried direct interviews
with Mr. Adams which further undermined the credibility of
RTE.
COMPLAINTS
Article 10 of the Convention
The applicants complain under Article 10 of the Convention
that the Section 31 Order constitutes an unjustifiable interference
with freedom of expression and is a serious infringement of their
right in a democratic society to impart information to the public, and
of their right to receive information without unnecessary interference
by a public authority.
They submit that the wording of the Section 31 Order
lacks the requisite precision to be "prescribed by law" within the
meaning of Article 10 para. 2 of the Convention. Efforts made by the
RTE Authority, by journalists in RTE and by the two trade union
applicants to seek clear ministerial guidelines as to the scope of the
Order have failed. In the event, the applicants have been compelled
to comply with the guidelines issued by the RTE Authority in purported
compliance with the Section 31 Order.
The applicants accept that in principle the objectives pursued
by Section 31 come within the legitimate aims "in the interests of
national security or for the prevention of disorder or crime" under
Article 10 para. 2. However, the practical effect of the Section 31
Order has greatly exceeded those aims and has become a blanket ban on
the proper and adequate coverage of political, social and current
affairs issues related to Northern Ireland. It is also submitted that
these legitimate aims are adequately covered by Section 18 (1) of the
Broadcasting Authority Act 1960 (as amended) which provides that RTE
in complying with its duty of impartiality is prohibited from
including in any of its broadcasts "anything which may reasonably be
regarded as being likely to promote, or incite to crime as tending to
undermine the authority of the State."
The applicants further submit that the restrictions do not
correspond to a pressing social need and are disproportionate to the
aims pursued. In particular they submit that:
- the Section 31 Order relates to the personality of the
interviewee as a possible member of one of the listed
organisations rather than to the content of the interview or
utterance;
- the Order has deterred RTE journalists from carrying out
investigative journalism and from producing programmes
covering a wide range of social and current affairs issues
in Northern Ireland;
- no attempt has been made by the State to justify the
difference in legal regulation of the electronic media and
newspapers;
- the Government have never explained why they reject the
views of the RTE Authority that the Order is overbroad in
scope;
- successive Ministers have refused to explain in Parliament
or elsewhere the rationale behind the Section 31 Order and its
annual renewal.
Article 3 of Protocol No. 1 to the Convention
The applicants complain under Article 3 of Protocol No. 1 that
the current Section 31 Order and previous Section 31 Orders enforced
during general parliamentary elections and European Parliament
elections in Ireland are a serious infringement to the free expression
of the opinion of the people and with the ability of the individual
applicants as journalists to ensure such free expression.
The individual applicants point out that they are also voters
in Irish general elections and European elections and have an
additional concern as journalists to ensure the free expression of the
people's opinion, as guaranteed by this provision. They state that
they do not support Sinn Fein and distinguish their complaint entirely
from any possible complaint which that organisation or its members
might be in a position to make. They point out, however, that Sinn
Fein is registered as a political party in the State and is lawfully
entitled to put forward candidates for general elections to the
national parliament.
The effect of the Section 31 Order has been that Sinn Fein
candidates cannot be interviewed by RTE. Moreover, there can be no
direct coverage of press conferences of Sinn Fein, including question
and answer sessions by journalists at such press conferences. In
addition, current affairs programmes, panel discussions, news
bulletins and question and answer programmes all exclude Sinn Fein
participation.
It is also submitted that Article 3 of Protocol No. 1 applies
to elections to the European Parliament. The individual applicants
complain that the above-mentioned restrictions of the interviewing of
Sinn Fein candidates also apply to these elections and that they were
required by the Section 31 Order to distort the "conditions which will
ensure the free expression of the opinion of the people" in violation
of this provision.
Article 14 in conjunction with Article 10 of the Convention and
Article 3 of Protocol No. 1
The applicants submit that the Section 31 Order also infringes
Article 14 in conjunction with Article 10 insofar as the individual
applicants are prohibited from broadcasting interviews with or
statements by, members (including elected representatives) of Sinn
Fein.
The applicants further complain of a breach of Article 14 in
conjunction with Article 3 of Protocol No. 1. They claim that the
current Section 31 Order and previous Section 31 Orders
discriminate on the grounds of political opinion against candidates
and elected representatives of a registered political party in the
State, Sinn Fein. They complain that as journalists and producers
working in RTE, in contrast with journalists in the print media, the
individual applicants are required to enforce this discrimination on
the basis of political opinion. They are unable to broadcast any
interview with or utterance by a member of Sinn Fein, regardless of
the content.
Article 13 of the Convention
The applicants further complain of a breach of Article 13 of
the Convention in that they have no effective remedy before a national
authority for the infringement of their rights under the Convention.
The constitutionality of the relevant legislation, and the power of
the Minister to issue and renew a Section 31 Order were upheld by the
Supreme Court in the case of The State (Lynch) v. Cooney (1982) IR
337. As a consequence the applicants have no effective remedy to
challenge the requirement that they comply with the terms of the
Section 31 Order and the guidelines issued by the RTE Authority
setting out procedures for the full implementation of the Order.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 August 1989 and
registered on 28 August 1989.
On 4 December 1989, the Commission decided to communicate the
application to the Government pursuant to Rule 42 para. 2 (b) of the
Commission's Rules of Procedure (former version) and to invite them to
submit written observations on the admissibility and merits.
The Government's observations were submitted on 18 May 1990
after two extensions of the time-limit and the applicants'
observations were submitted on 31 July 1990 after one extension of the
time-limit.
On 16 April 1991, the Commission held a hearing on the
admissibility and merits of the application at which the parties were
represented as follows:
For the Government
Ms. Emer Kilcullen, Department of Foreign Affairs, Agent
Mr. Harold A. Whelehan S.C., Counsel
Mr. J. Gerard Danaher B.L., Counsel
Ms. Finola Flanagan, Office of the Attorney General, Adviser
Mr. Thomas Kennington, Department of Tourism, Transport and
Communications, Adviser
For the Applicants
Mr. Frank Clarke S.C., Counsel
Mr. Kevin Boyle, Counsel
Miss Mary O'Toole, Counsel
Miss Anne M. Neary, Solicitor
Applicants
Ms. Betty Purcell
Mr. Seosamh O'Cuaig
Mr. Alex White
Mr. James J. Eadie (on behalf of the National Union of Journalists)
Mr. Patrick Keenan (on behalf of the Services Industrial
Professional Technical Union)
THE LAW
The applicants as victims
The Commission has first examined whether the applicants can
claim to be "victims" within the meaning of Article 25 para. 1
(Art. 25-1) of the Convention. According to this provision, the
Commission "may receive petitions ... from any person,
non-governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties of
the rights set forth in this Convention ...".
The Government contend that the trade union applicants cannot
claim to be victims of the alleged violations as the Section 31 Order
is not directed to them and has not been applied to their detriment.
They consider their complaints as an "actio popularis" aimed at
furthering the trade unions' campaign for the abolition of Section 31 of
the 1960 Act. The applicants submit that in a situation where all
members of a trade union are affected by a measure which they complain
infringes their Convention rights the union itself, as a collective of
its members, is directly affected by the measure and becomes a victim
within the meaning of Article 25 (Art. 25), particularly where the union
concerned has consistently asserted those rights on behalf of its
members. At the hearing, the applicants have also advanced the
argument that it is not only journalists that are affected by the
Section 31 Order but journalism as a profession: as professional
associations of their members the trade union applicants represent all
journalists in defending freedom of expression and in resisting and
challenging censorship.
The Commission cannot espouse that argument. In order to
satisfy the conditions of Article 25 (Art. 25), an applicant must be able to
demonstrate that he himself has been affected by the alleged breach of
the Convention. In the present case, the measure complained of does
not affect the rights of the applicant unions themselves: the
Section 31 Order does not refer to the exercise of any of their
rights. The fact alone that the trade unions consider themselves as
guardians of the collective interests of their members does not
suffice to make them victims within the meaning of Article 25
(Art. 25) (cf. No. 9900/82, Dec. 4.5.83, D.R. 32 p. 261; No. 9939/82,
Dec. 4.7.83, D.R. 34 p. 213; No. 10733/84, Dec. 11.3.85, D.R. 41 p.
211).
It follows that insofar as the application is brought by the
two trade unions, it is incompatible ratione personae with the
provisions of the Convention and must be rejected in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention.
The Government also submit that the individual applicants
cannot claim to be victims as the Section 31 Order is directed to the
RTE Authority and not to them. They argue that the applicants are
free to receive and impart any information in their individual and
personal capacity. If, as they allege, they are affected by the
Order it is only by virtue of their employment by the RTE Authority
and its adherence to the terms of the Order; as employees of RTE they
are bound by the rules and regulations of that organisation.
The Commission sees no force in this argument. All the
individual applicants are full-time broadcasting journalists or
producers of radio and television programmes. As employees of RTE
they are bound to comply with the Section 31 Order, in accordance with
the guidelines issued by their employer. The exercise of their
freedom to receive and impart information is directly affected by the
terms of the Order, and they face disciplinary action for failure to
comply with it.
The 17 individual applicants can therefore claim to be victims
of the alleged violations within the meaning of Article 25 para. 1
(Art. 25-1) of the Convention.
Exhaustion of domestic remedies
The Government contend that the application fails to satisfy
the requirement under Article 26 (Art. 26) of the Convention that "the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law". They submit that the individual applicants had a
remedy available to them as the Irish courts could review any Order
made under Section 31. They refer in this respect to the decision of
the Supreme Court in the matter of The State (Lynch) v. Cooney (1982)
I.R. 337, pointing out that this case concerned the validity of a part
of a Section 31 Order - made by the Minister of Justice on 9 February
1982 - which prohibited party political broadcasts by Sinn Fein and
had therefore no direct bearing on the issues raised by the
applicants: the question whether the Order was an unjustified
interference with the right to freedom of expression or the right to
vote of any person other than a candidate in an election had not been
adjudicated upon. The applicants have therefore not exhausted
available domestic remedies in respect of the complaints they raise in
their application. Refuting this argument, the applicants point out
that in the Lynch case the Supreme Court had unequivocally endorsed
the Minister's justification for issuing the Section 31 Order in 1982
and that nothing in the development of the state of affairs in Ireland
suggests that the courts would find otherwise if the current Order
were to be challenged by way of judicial review, particularly since
the applicants do not contest the Minister's good faith in forming the
opinion underlying the Order but whether the Minister should be
entitled to exercise the powers which he has upon forming that
opinion. They argue, therefore, that a renewed challenge would be
devoid of any chance of success and constitute futile proceedings.
In the Commission's opinion, the applicants have convincingly
established that in view of the Supreme Court's clear decision in the
Lynch case, upholding the validity of a Section 31 Order largely
identical to the one contested in the present case, a renewed
challenge would have offered no prospect of success.
The Commission has consistently held that the rule of
exhaustion of domestic remedies requires the use of only those
remedies which are capable of providing redress for the complaints
submitted (cf. Nos 8805/79 and 8806/79, Dec. 7.5.81, D.R. 24 p. 144
with further references). The complaints of the individual applicants
cannot therefore be rejected in accordance with Article 27 para. 3
(Art. 27-3) of the Convention as being inadmissible under Article 26
(Art. 26).
Article 10 (Art. 10) of the Convention
The individual applicants complain that the Section 31 Order
as applied to them constitutes an unjustifiable interference with
their freedom of expression as it is a serious infringement of their
right to receive and to impart information without unnecessary
interference by public authority. They invoke Article 10 (Art. 10) of the
Convention which provides:
"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 restriction, if any, on the
exercise of the applicants' freedom of expression is marginal and in
any case prescribed by law and - in the circumstances pertaining in
Ireland with regard to terrorist organisations - necessary for
protecting national security, territorial integrity and public safety,
and for preventing disorder and crime, thus fully in accordance with
the provisions of Article 10 para. 2 (Art. 10-2) of the Convention.
In support of their contention, the Government have submitted
documentary material on the extent of terrorist violence in Ireland,
in Northern Ireland and elsewhere in Europe, the support of Sinn Fein
for the activities of the IRA and the involvement of other
organisations enumerated in the Section 31 Order.
The Commission notes on the question of interference that,
although the Ministerial Order is not addressed to the applicants but
to their employer, the RTE, it produces serious effects on the
applicants' work as journalists and producers, by virtue of the
guidelines issued by their employer which they have to observe: they
cannot broadcast interviews, or reports of interviews, with
representatives of the listed organisations; they must use mute film
or stills to illustrate any reportage relating to any of the listed
organisations; they must obtain clearance from their superiors prior
to broadcasting any news feature or current affairs programme relating
to a matter connected with these organisations. As these prohibitions
apply to any statement of a representative of a listed organisation
regardless of the subject matter, compliance with the Order entails
restrictions and conditions not only on the choice of the material the
applicants may broadcast but also on their editorial judgment.
Considering the eminent role of journalists in the dissemination of
information and considering in particular that the ban applies to
interviews with spokesmen of a registered political party (Sinn Fein),
the Commission concludes that the Order constitutes an interference
with the exercise of the applicants' right under Article 10 para. 1
(Art. 10-1) of the Convention to receive and impart information and
ideas.
The question is whether this interference was justified, as
the Government maintain, by any of the restrictions which may be
imposed on the exercise of the freedom of expression in accordance
with Article 10 para. 2 (Art. 10-2) of the Convention.
To be justified under this provision, the condition or
restriction must be "prescribed by law". The European Court of Human
Rights has repeatedly emphasised that "foreseeability" is one of the
requirements inherent in the phrase "prescribed by law" in Article 10
para. 2 (Art. 10-2). A norm cannot be regarded as a "law" unless it
is formulated with sufficient precision to enable the citizen - if
need be, with appropriate advice - to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action
may entail (Eur. Court H.R., Müller and Others judgment of 24 May
1988, Series A No. 133, p. 20, para. 29 with further references).
According to the applicants, the wording of the Section 31
Order lacks the requisite precision to satisfy this criterion. They
submit that the restriction is in such indefinite terms that it
curtails a whole range of choices of programmes, choices of persons to
be interviewed on programmes, balance in coverage of events and of
elections and balance in treatment of the subject matter of
programmes. The Goverment refute this allegation. They maintain that
the Order has been formulated with sufficient precision to enable the
persons concerned to regulate their conduct, and they point out that
the applicants were well aware of the consequences which a breach of
the provisions of the Order would entail.
In order to ascertain whether the impugned restrictions were
"prescribed by law" - in the sense given to that phrase in the Court's
case-law - the Commission has considered it necessary to examine
Section 31 of the Broadcasting Authority Act 1960 (as amended by
Section 16 of the Broadcasting Authority (Amendment) Act 1976) in
conjunction with the Order issued in accordance with that provision.
Section 31 alone would indeed give rise to objections as to the
requisite precision: it empowers the Minister to direct the authority
to refrain from broadcasting certain matters solely on the basis of
his "opinion that the broadcasting of a particular matter or any
matter of a particular class would be likely to promote, or incite to,
crime or would tend to undermine the authority of the State". But the
"law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention
includes the Order issued pursuant to Section 31. It is a statutory
instrument which must be laid before the two Houses of the Oireachtas
(Parliament), and either House has the power to annul the Order
(Section 16, Subsection 1B of the Amendment Act). As the Order
describes in great detail not only the kind of material to which it
applies but also the manner in which such material may be conveyed to
listeners and viewers, the applicants cannot claim to be unaware of
the scope of application of the restrictions imposed upon them. It
follows that these restrictions were "prescribed by law" within the
meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
In accordance with the Court's case-law, the Commission has
next to examine whether the impugned restrictions had an aim which is
legitimate under Article 10 para. 2 (Art. 10-2) and whether they were
"necessary in a democratic society" for achieving that aim (cf. Eur.
Court H.R., Sunday Times judgment of 26 April 1979, Series A No. 30,
p. 29, para. 45).
In examining whether the aim pursued by the Section 31 Order
can be said to be legitimate under Article 10 para. 2 (Art. 10-2), the
Commission notes that the applicants did not express disagreement with
the Government's statements concerning the seriousness of the
terrorist threat in Ireland and the involvement of the organisations
enumerated in the Section 31 Order, including Sinn Fein, which,
although a registered political party, has been qualified as "an
integral and dependent part of the apparatus of the Provisional
I.R.A., an illegal terrorist organisation which, by both its avowed
aims and its record of criminal violence, is shown to be committed to,
amongst other
things, the dismantling by violent and unlawful means of the organs of
State established by the Constitution" (Mr. Justice Henchy in the
Supreme Court's judgment in the case of The State (Lynch) v. Cooney
(1982) I.R. 337, at p. 381). In this context, the Commission notes
that the impugned Order does not prohibit the reporting of the
activities of any of the listed organisations; it only bans live
interviews with their spokesmen. It thus prohibits the use of the
broadcast media for the purpose of advocating support for
organisations which seek to undermine, by violence and other illegal
means, the constitutional order and the fundamental rights and
freedoms it guarantees. While it is true that Sinn Fein - as opposed
to the other organisations enumerated in the Order - is not a
proscribed organisation, it is also true that it condones the
terrorist activities of one of the listed organisations - which is
proscribed - and is closely associated with them, as the Supreme Court
has stated in the aforementioned Lynch judgment. The Commission notes
that under these circumstances it might well be possible under Irish
legislation to declare Sinn Fein an unlawful organisation. That it is
not so proscribed, is a matter of policy which is alone for the Irish
Government to determine. However, the decision not to declare Sinn
Fein an unlawful organisation does not imply an obligation on the
Government to grant Sinn Fein unimpeded access to the broadcast media.
By allowing, in Article 10 para. 2 (Art. 10-2), certain restrictions on the
exercise of the freedom of expression, the Convention recognises the
principle that no group or person has the right to pursue activities
which aim at the destruction of any of the rights and freedom
enshrined in it (cf. Article 17 (Art. 17) of the Convention).
The Commission therefore finds that the impugned restrictions
on the applicants' freedom to receive and impart information had a
legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention. It
observes in this context that the applicants themselves concede that
in principle the objectives of the Section 31 Order would appear to
come within the legitimate aims mentioned in Article 10 para. 2
(Art. 10-2) of the Convention, i.e. protecting the interests of
national security and preventing disorder and crime.
The Commission has next to examine whether the impugned
restrictions were "necessary in a democratic society" for achieving
these aims.
The applicants contest that the methods adopted by the
Government to achieve those legitimate aims are reasonable and
proportionate. They submit that these aims are adequately covered by
Section 18 Subsection 1A of the Broadcasting Authority Act 1960 (as
amended by Section 3 of the 1976 Act) which precludes the broadcasting
of "anything which may reasonably be regarded as being likely to
promote, or incite to, crime or as tending to undermine the authority
of the State". In their opinion the Government have ignored the role
of the professional broadcaster in critically presenting and analysing
the views of those who are interviewed. They contend therefore that
the restrictions imposed by the Section 31 Order were not "necessary
in a democratic society" as required by Article 10 para. 2 (Art. 10-2)
of the Convention.
In determining whether a measure complained of is "necessary
in a democratic society", the European Court of Human Rights has
consistently held that the adjective "necessary" implies the existence
of a pressing social need and that the Contracting States have a
certain margin of appreciation in assessing whether such a need
exists, but that this goes hand in hand with a European supervision
(Eur. Court H.R., Müller and Others judgment of 24 May 1988, Series A
No. 133, p. 21, para. 32, with further reference). In the present
case, it is therefore not the Commission's task to determine whether
other measures would have been more appropriate for achieving the
intended purpose, as the applicants maintain, nor to assess the
expediency and efficacy of the measures taken by the Minister. In
view of the Government's margin of appreciation, the Commission's sole
task is to examine whether the reasons underlying the Section 31 Order
are relevant and sufficient under Article 10 para. 2 (Art. 10-2) (cf.
Eur. Court H.R., Müller and Others judgment, loc. cit.), i.e. whether
the Minister had convincing reasons for assuming the existence of a
pressing social need for imposing the impugned restrictions on the
applicants.
In this connection, the Commission must emphasise, as the
Court has done on several occasions (cf. Eur. Court H.R., The Sunday
Times judgment of 26 April 1979, Series A No. 30, p. 40, para. 65),
that freedom of expression constitutes one of the essential
foundations of a democratic society. But it must also emphasise that
the exercise of that freedom "carries with it duties and
responsibilities" (Article 10 para. 2 (Art. 10-2) of the Convention)
and that the defeat of terrorism is a public interest of the first
importance in a democratic society. In a situation where politically
motivated violence poses a constant threat to the lives and security
of the population and where the advocates of this violence seek access
to the mass media for publicity purposes, it is particularly difficult
to strike a fair balance between the requirements of protecting
freedom of information and the imperatives of protecting the State and
the public against armed conspiracies seeking to overthrow the
democratic order which guarantees this freedom and other human rights.
Called upon to consider whether the Section 31 Order can be
said to strike this balance in conformity with the provisions of
Article 10 para. 2 (Art. 10-2) of the Convention, the Commission notes
that the restrictions resulting from the Order do not refer to the
contents of radio and television programmes. As has already been
emphasised, their purpose is to ensure that spokesmen of the listed
organisations do not use the opportunity of live interviews and other
broadcasts for promoting illegal activities which aim at undermining
the constitutional order of the State. The restrictions are designed
to deny representatives of known terrorist organisations and their
political supporters the possibility of using the broadcast media as a
platform for advocating their cause, encouraging support for their
organisations and conveying the impression of their legitimacy.
The Commission recognises that some of these restrictions,
particularly the ban on live interviews with spokesmen of the listed
organisations, may cause the applicants inconvenience in the exercise
of their professional duties, but it does not, on balance, find that
they amount to restrictions on the applicants' right to freedom of
expression which are incompatible with the aforementioned requirements
under Article 10 para. 2 (Art. 10-2) of the Convention.
In contemporary society radio and television are media of
considerable power and influence. Their impact is more immediate than
that of the print media, and the possibilities for the broadcaster to
correct, qualify, interpret or comment on any statement made on radio
or television are limited in comparison with those available to
journalists in the press. Live statements could also involve a
special risk of coded messages being conveyed, a risk which even
conscientious journalists cannot control within the exercise of their
professional judgment.
Given the limited scope of the restrictions imposed on the
applicants and the overriding interests they were designed to protect,
the Commission finds that they can reasonably be considered "necessary
in a democratic society" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
It follows that the complaints made by the individual
applicants under Article 10 (Art. 10) are manifestly ill-founded and
must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of
the Convention.
Article 3 of Protocol No. 1 (P1-3) to the Convention
The individual applicants complain that the Section 31 Order,
insofar as it applies to broadcasts involving spokesmen for Sinn Fein,
a registered political party, and is enforced during Irish general
elections and elections to the European Parliament, violates the
provisions of Article 3 of Protocol No. 1 (P1-3) to the Convention which
read as follows:
"The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions which
will ensure the free expression of the opinion of the people in
the choice of the legislature".
They submit that they are voters in both elections and as journalists
have an additional concern to ensure the free expression of the
people's opinion.
Referring to the judgment of the European Court of Human
Rights in the Mathieu-Mohin and Clerfayt case (Eur. Court H.R.,
Mathieu-Mohin and Clerfayt judgment of 2 March 1987, Series A No. 113,
p. 24, para. 54), the Government submit that Article 3 of Protocol
No. 1 (P1-3) implies the principle of equality of treatment of all citizens
in the exercise of their right to vote and their right to stand for
election, but that the applicants have not been prevented or hindered
in the exercise of that right. Furthermore they contend that
Article 3 of Protocol No. 1 (P1-3) is not applicable to elections to the
European Parliament.
While accepting that the individual applicants as voters may
be affected by the ban on broadcasts involving spokesmen for Sinn
Fein, the Commission does not find in their submissions any
substantiated claim that the principle of equality of treatment in the
exercise of their right to vote has been violated to their detriment.
The applicants submit that the effect of the Section 31 Order has been
that Sinn Fein candidates cannot be interviewed, that there can be no
direct coverage of press conferences of Sinn Fein, and that current
affairs programmes, panel discussions, news bulletins and question and
answer programmes all exclude Sinn Fein participation. These are
complaints which concern the applicants' position as broadcast
journalists which the Commission has already considered under
Article 10 (Art. 10) of the Convention. The guarantee, under
Article 3 of Protocol No. 1 (P1-3), of "conditions which will ensure
the free expression of the opinion of the people in the choice of the
legislature" implies - as the Court has stated (cf. its Mathieu-Mohin
and Clerfayt judgment, loc. cit.) - the principle of equality of
treatment of all citizens in the exercise of their right to vote, but
it does not give the citizen a right to demand that all political
parties competing in an election be granted radio and television
coverage or be granted the same amount of such coverage. The fact
that Sinn Fein is a registered political party makes no difference in
this respect. The registration of a party in Ireland is a mere
administrative formality; its only legal effect is that candidates who
are members of a registered party may add that party's name to their
own name on the ballot-paper. Registration is not a licence, nor does
it imply a recognition of the party or its activities. In any case,
since the applicants expressly state that they do not support Sinn
Fein, it is difficult to see how they can be disadvantaged as voters
by the broadcasting ban concerning Sinn Fein spokesmen.
The applicants also submit that, to be consistent in its
endeavour to prohibit Sinn Fein's access to the broadcast media, the
Government should have proscribed it as a party. In the Commission's
opinion, this is a question of policy which it is not called upon to
consider in the context of its examination of the application under
Article 3 of Protocol No. 1 (P1-3).
As the Commission has found that the applicants' complaint
with regard to Article 3 of Protocol No. 1 (P1-3) do not disclose any
appearance of a violation, it is not necessary to determine whether
the European Parliament can be considered as "legislature" within the
meaning of this provision (cf. Nos 8364/78, Dec. 8.3.79, D.R. 15
p. 247, 8612/79, Dec. 10.5.87, D.R. 15 p. 259, and 11123/84,
Dec. 9.12.87, unpublished).
It follows that the complaints made under Article 3 of
Protocol No. 1 (P1-3) are manifestly ill-founded and must be rejected
in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention
and Article 3 of Protocol No. 1 (P1-3)
The individual applicants complain that the Section 31 Order
infringes Article 14 in conjunction with Article 10 (Art. 14+10)
insofar as it applies to broadcasts involving Sinn Fein
representatives, and in conjunction with Article 3 of Protocol No. 1
(P1-3) insofar as it discriminates on the grounds of political opinion
against candidates and elected representatives of Sinn Fein.
The Commission has already found that the applicants'
complaints under Article 10 (Art. 10) of the Convention and Article 3
of Protocol No. 1 (P1-3) are manifestly ill-founded, also in respect
of the alleged discriminatory application of the Section 31 Order to
broadcasts involving Sinn Fein spokesmen.
It follows that the complaints made under Article 14 (Art. 14) in
conjunction with these provisions must also be rejected in accordance
with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly
ill-founded.
Article 13 (Art. 13) of the Convention
The individual applicants further complain under Article 13
(Art. 13) of the Convention that they have no effective remedy before
a national authority to challenge the Section 31 Order for violation
of their rights under the Convention. Article 13 (Art. 13) provides:
"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 first observes that, by complaining about the
effects of the Section 31 Order on their Convention rights, the
applicants in fact seek to challenge Section 31 of the Broadcasting
Authority Act 1960 (as amended). It is in this Act that the Minister
is given authority to restrict broadcasting by Order in the way he has
done. In this respect, the Commission recalls the case-law of the
Convention organs according to which Article 13 (Art. 13) does not go
so far as to guarantee a remedy allowing a legislative act as such to
be challenged (cf. Eur. Court H.R., James and Others judgment of 21
February 1986, Series A No. 98, p. 47, para. 85; Eur. Court H.R.,
Lithgow and Others judgment of 8 July 1986, Series A No. 102, p. 74,
para. 206).
Insofar as the complaints relate to the implementation of
Section 31 by Ministerial Order, the Commission observes that the
applicants themselves refer to the challenge of a previous Section 31
Order which led to a judgment of the Supreme Court (The State (Lynch)
v. Cooney (1982) I.R. 337). They thus concede that there is a remedy
under Irish law. They submit, however, that in view of the Supreme
Court's judgment in the Lynch case, their challenge of the current
Section 31 Order would offer no prospect of success.
In considering whether the remedy available under Irish law
satisfies the conditions of Article 13 (Art. 13) of the Convention in the
present case, the Commission recalls that in the Lynch case the
constitutionally guaranteed right to freedom of expression has been
considered by the High Court as well as by the Supreme Court. Both
courts have thus considered the alleged violation of a right which is
also guaranteed by the Convention in Article 10 (Art. 10). The Commission
therefore finds that there is a remedy under Irish law which enables
the applicants to invoke the alleged violation of their rights under
Article 10 (Art. 10) before a national authority. Whether this remedy
is likely to succeed depends on the appreciation of the merits of
their case by the Irish courts. The fact alone that their claims may
be unlikely to succeed does not mean that there is no effective remedy
within the meaning of Article 13 (Art. 13) of the Convention.
It follows that the complaint made under Article 13 (Art. 13)
must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of
the Convention as being manifestly ill-founded.
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)
ANNEX
List of individual applicants
Betty Purcell, resident in Dublin,
Brian O'Connell, resident in Billericay,
Colm Murray, resident in Dublin,
Sean Duignan, resident in Dublin,
Cathal Poirteir, resident in Dublin,
Cathal McCoille, born in 1952 and resident in Dublin,
Noelle O'Reilly, resident in Dublin,
Ronan O'Donoghue, born in 1957 and resident in Dublin,
Michael McCarthy, resident in Dublin,
Helen Shaw, born in 1962 and resident in Dublin,
Marian Finucane, resident in Dublin,
Roisin Boyd, resident in Dublin,
Brendan O'Brien, resident in Bray,
Peter Feeney, resident in Dublin,
Alex White, born in 1958 and resident in Dublin,
Anna Heussaff, resident in Dublin,
Seosamh O'Cuaig, resident in Connemara.
Full & Egal Universal Law Academy