In the case of Sekmadienis v Lithuania ([2018] ECHR 112) the Fourth Section of the Court of Human Rights held that a decision to fine a clothing company for the display of adverts referring to “Jesus” and “Mary” was a violation of Article 10.

Background

In September and October 2012, the applicant, Sekmadienis Ltd ran an advertisement campaign with photos of a male and female model with halos, the man in jeans and with tattoos, and the female with a white dress and a string of beads. The advertisements contained the captions “Jesus, what trousers!”, “Dear Mary, what a dress!”, and “Jesus [and] Mary, what are you wearing!”

Several individuals complained about the advertisements to the State Consumer Rights Protection Authority (“SCRPA”). The latter first sought the opinion of the Lithuanian Advertising Agency (“LAA”), a self-regulatory body composed of advertising specialists. The LAA stated that “religious people always react very sensitively to any use of religious symbols or religious personalities in advertising” and that the advertisements breached the Code of Advertising Ethics.

Subsequently the SCRPA asked the Lithuanian Bishops Conference, the territorial authority of the Roman Catholic Church in Lithuania, for its view. The Bishops Conference stated that “the degrading and distortion of religious symbols by purposely changing their meaning is contrary to public morals, especially when it is done in pursuit of commercial gain”.

Iin March 2013 the SCRPA found that the advertisements were contrary to public morals and thus in violation of the Law onAdvertising. The applicant company was given a fine of 2,000 Lithuanian litai (approximately €580). The SCRPA held that

“the inappropriate depiction of Christ and Mary in the advertisements in question encourages a frivolous attitude towards the ethical values of the Christian faith, [and] promotes a lifestyle which is incompatible with the principles of a religious person”.

It concluded that “respect for religion is undoubtedly a moral value. Accordingly, disrespecting religion breaches public morals”.

The applicant company’s subsequent complaint to the regional administrative court was dismissed, as was its 2014 appeal to the Supreme Administrative Court, which held that

“symbols of a religious nature occupy a significant place in the system of spiritual values of individuals and society, and their inappropriate use demeans them [and] is contrary to universally accepted moral and ethical norms”.

Judgment

The fine imposed had interfered with the applicant company’s freedom of expression. The Court expressed some doubt as to whether the applicant company could have foreseen that the provision of the Law on Advertising, prohibiting advertising which “violates public morals”, would be applied to the advertisements in question, especially since later that Law had been amended to explicitly prohibit advertising which “expresses contempt for religious symbols” [67].

The Court accepted that the interference sought legitimate aims, namely the protection of morals arising from the Christian faith, and the protection of the right of religious people not to be insulted on the grounds of their beliefs [69].

It was accepted that margin of appreciation was a broad one, in view of the commercial nature of the advertisements [73].  The Court noted that the exercise of the freedom of expression carries with it duties and responsibilities.  In the context of religious beliefs, there is a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane [74].

The advertisements were not intended to contribute to any public debate [76] but they did not appear to be gratuitously offensive or profane, nor to incite hatred on religious grounds [77].  However, the domestic courts and other authorities had a duty to provide relevant and sufficient reasons why such expression was nonetheless contrary to public morals [78].

However, it ultimately found that the justifications provided by them were “declaratory and vague, and did not sufficiently explain why the reference to religious symbols in the advertisements was offensive.” The authorities had not addressed the company’s argument that the language of the advertisements had been used as comic emotional interjections common in spoken Lithuanian rather than as direct religious references [79].

Even more significantly, the SCRPA had held that the advertisements “promoted a lifestyle which was incompatible with the principles of a religious person” without explaining what that lifestyle was and how the advertisements were promoting it, nor why a lifestyle which is “incompatible with the principles of a religious person” would necessarily be incompatible with public morals.

The Court was also critical of the fact that the only religious group which had been consulted in the domestic proceedings had been the Roman Catholic Church, and that did not seem to reflect the principles established by the domestic Constitutional Court and the United Nations Human Rights Committee.

Finally, the Court reiterated that freedom of expression extended to ideas which offend, shock or disturb. The fact that approximately 100 individuals had complained to the domestic authorities about the advertisements could not therefore in itself justify the fine given to the applicant company. It stated that, even if most people in Lithuania had been offended, as argued by the Lithuanian Government, a minority’s rights under the Convention could not be dependent on those rights being accepted by the majority [82].

There had, therefore, been a violation of Article 10, since the domestic authorities had failed to strike a fair balance between, on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression [83].

Comment

This is an interesting decision which addresses the difficult question of whether and to what extent freedom of expression should be restricted if the sensibilities of others are offended.  The Court’s answer is clear and unequivocal: the fact that people are offended by a publication does not justify it being sanctioned.  Protection of the feelings of a minority – or even a majority – will not, of itself, be sufficient to justify an interference with freedom of expression.

Even where lower value freedom of expression such as advertisements is concerned, interference can only be justified if there is some kind of gratuitous offence or profanity, or some incitement of hatred on the grounds of religious belief.  It seems that the Court will look at both the intentions of the publishers and the objective effects of the publication.  Those who set out to abuse or villify religious groups can be the subject of sanctions and material may be so obviously intended to incite hatred that action may be justified.

The judgment is a useful reminder of that Article 10 protects the offensive as well as the inoffensive, even in a sensitive area such as religion.

Hugh Tomlinson QC is a specialist in media and information law at Matrix Chambers and an editor of Inforrm.