Information Note on the Court’s case-law No. 144
August-September 2011
Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (dec.) - 48703/08
Decision 20.9.2011 [Section V]
Article 10
Article 10-1
Freedom of expression
Restrictions on postal distribution of magazines: inadmissible
Facts – The applicant association, according to its articles of association, carries out political activities to promote animal welfare and consumer rights by campaigning during elections and referendums. It also publishes a magazine two or three times a year in various regions of Switzerland, with articles and photographs concerning the treatment of animals in agriculture. In a letter of April 2007 the Swiss Post Office informed the applicant association that its magazines would no longer be delivered to all households, but only to those which had not placed a sticker with the message “No advertising please” on their letterboxes. The reason given was that only “official” items, for example material sent by political parties and items of a non-commercial nature meeting a public-information requirement, could be delivered to all letterboxes. In May 2007 the applicant association lodged a complaint with a commercial court, which found against it. It then lodged a civil-law appeal against that decision with the Federal Court, which dismissed the appeal in August 2008.
Law – Article 10: The Court considered it appropriate to examine whether there had been a violation of Article 10 from the standpoint of whether the Swiss authorities had been under a positive obligation to ensure that the applicant association’s magazine was delivered by the Post Office to letterboxes displaying a “No advertising please” sticker.
The parties concerned, namely the applicant association and the Swiss Post Office, had been acting as private commercial partners. The conditions applicable to the delivery of publications had been clearly set out in the PromoPost brochure and formed an integral part of the service on offer to anyone considering this delivery method. The Swiss authorities had had a certain margin of appreciation in assessing whether there was a “pressing social need” to refuse to deliver the applicant association’s magazine to letterboxes displaying the sticker in question. With regard to the applicant association’s interest in circulating its ideas, it was clear that the association’s activities, namely animal welfare and environmental protection, were a matter of considerable public interest. At the same time, the measure complained of by the applicant association had merely concerned the delivery of its magazine to letterboxes displaying the sticker. According to the association, the sticker was to be found on one in two letterboxes. The impact of the refusal to deliver the magazine was therefore significantly limited. Moreover, there had been no question of banning the magazine or monitoring its contents. Nor had the applicant association been prevented from distributing the magazine by its own means. In that connection, the commercial court had pointed out that other distribution systems were available, offering services with comparable rates and conditions. The applicant association had likewise not been prevented from imparting its ideas via other channels, for example on its Internet site. It was also important to protect consumers and residents from unsolicited mail. Thus, as the Federal Court had noted, the criteria laid down by the Post Office had been devised following complaints from certain customers and reflected the wishes of those who displayed the sticker in question on their letterboxes. Furthermore, the applicant association’s case had been examined by the domestic courts at two levels which had given due consideration to its arguments. Their decisions had contained persuasive reasoning and had been based on legal provisions that were accessible, foreseeable and very detailed. In particular, the courts had given sufficient reasons for their finding that the applicant association’s magazine should not be regarded as emanating from a “political party” within the meaning of the PromoPost brochure or as belonging to any other category of “official delivery”. The same was true of the finding that the magazine in question, which was published two or three times a year, could not be regarded as a free newspaper either, seeing that it was not distributed sufficiently regularly. Accordingly, the scrutiny performed by the two domestic courts had been thorough, relevant and sufficient for the purposes of Article 10, particularly with a view to avoiding any arbitrary treatment of the applicant association.
In view of the foregoing, and even assuming that Switzerland bore responsibility for the measure in question, the Court considered that, regard being had to the national authorities’ margin of appreciation in the present case and to the domestic courts’ decisions, which had been very detailed with a basis in law, the respondent State had not failed to comply with its positive obligation to protect the applicant association’s freedom of expression.
Conclusion: inadmissible (manifestly ill-founded).
The Court also declared inadmissible the complaint under Article 14 in conjunction with Article 10.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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