Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
Closed Expands Expression
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The Fifth Section Chamber of the European Court of Human Rights (ECtHR) found a violation of Article 10 (freedom of expression) in a case involving the restriction of a brand’s designs on condoms by domestic authorities. The Applicant condom brand “Aiisa” included various depictions, such as fictional characters, historical figures, and political events, as well as slogans reflecting social biases and support for the LGBT community in their packaging. The domestic court had considered the packaging as unethical advertising due to its insulting nature to the religious feelings of others and public morals. The domestic courts imposed a fine on the applicant and ordered to cease using and disseminating the designs on the product and on social media. The ECtHR noted that the domestic courts and government had viewed the designs solely as commercial expression, but the ECtHR disagreed, considering the social and political commentary they conveyed. It recognized that the designs had elements of public interest, aiming to challenge stereotypes and initiate a public debate. The ECtHR criticized the domestic courts’ decisions for giving priority to the ethical views of the Georgian Orthodox Church over the values protected under the Convention and Constitution of Georgia. As a result, the ECtHR emphasized that the domestic courts had failed to demonstrate a “pressing social need” or provide sufficient justification for interfering with freedom of expression. Consequently, the ECtHR concluded that the reasons given by the domestic courts were insufficient, resulting in a violation of Article 10 of the Convention.
The case involves Ani Gachechiladze, an individual entrepreneur from Tbilisi, who produced condoms under the brand name Aiisa, known for its innovative and unconventional designs. The condom packaging included various depictions, such as fictional characters, historical figures, and political events, as well as slogans reflecting social biases and support for the LGBT community. (para. 5). Four specific designs led to administrative offence proceedings against her. One design depicted an inflated crown, seemingly made from a condom, with the text “Miraculous Victory,” associated with a historical battle. The second design showed a cartoon depiction of a female left hand with a condom on the fingers. The third design portrayed “King Tamar,” a female ruler of Georgia with the text “The Royal Court inside Tamar,” which also alludes to the television series “Game of Thrones” in its sound. She was declared a saint by the Georgian Orthodox Church. The last design featured a cartoon panda face with text referencing male masturbation during Epiphany, taken from a music video by an anonymous group called Panda. The last design was never used on the packaging but was only uploaded to Aiisa’s Facebook page.
On March 27, 2018, a complaint was filed by the chairman of a conservative civil-political movement, alleging that Aiisa’s designs were insulting to the religious feelings of Georgians (para. 11). Later, the Municipal Inspectorate served Gachechiladze an administrative-offense report, accusing her of unethical advertising and breaching the rules of advertising production and dissemination (para.12-14). Subsequently, the Tbilisi City Court ruled that four specific designs constituted unethical advertising, leading to a fine of 500 Georgian laris [approx. 192 USD] and an order to cease using and disseminating the designs on the product and on social media (para 16-18). Gachechiladze appealed the decision, arguing that her right to freedom of expression had been violated (para 19).
The Tbilisi Court of Appeal upheld the lower court’s judgment, and determined that the Advertising Act, which restricts unethical advertising to protect public morals, was applicable in this case (para. 20). It recognized the importance of freedom of speech but stated that limitations could be imposed to protect public morals and the rights of others (para. 21). The court found that the four disputed designs constituted advertising falling within the scope of the Act and that they insulted religious figures and symbols important to Orthodox Christians (para. 21-23). It concluded that the advertisements went against public morals and constituted unethical advertising (para. 23). The court also considered the necessity of interference in a democratic society and concluded that the action aimed against public morals and religion was objectively perceived as an insult (para 24-25). The Court of Appeal upheld the fine, product recall order, and ban on future use of the designs (para 25).
The ECtHR delivered a unanimous judgment finding a violation of Article 10 of ECHR. The primary issue for the ECtHR’s determination was whether the imposition of the fine on Applicant, the obligation to issue a product recall by Applicant, and the ban on the future use of the disputed designs amounted to a disproportionate interference with the Applicant’s right to freedom of expression under Article 10 of the ECHR.
The Applicant contended that the interference with her freedom of expression was unlawful, lacked legitimate aims, and was unnecessary in a democratic society. She argued, among other points, that her brand engaged in social activism by promoting condom use and safe intercourse in a society where these topics were deemed taboo. The applicant claimed that the domestic courts failed to adequately consider her arguments against labeling the four designs as unethical advertising, asserting that the decisions imposed the dominant religious group’s worldview on her. (para 43)
The State acknowledged that there was an interference with the applicant’s freedom of expression but argued that it was justified under Article 10 (2) of the Convention. They asserted that the interference had a legal basis and aimed to protect (i) the rights of others from having their religious beliefs insulted and (ii) public morals. According to the State, the four disputed designs were considered advertising of commercial goods, rather than contributing to an important debate in a democratic society. Hence, the domestic courts were granted a wide margin of appreciation to assess the scope of public morals and determine if the designs contradicted societal values, considering the local context. (para 44)
The ECtHR acknowledged that the imposition of the fine, the obligation to issue a product recall, and the ban on the future use of the disputed designs constituted an interference with the freedom of expression of the individuals involved. Such interference would be a violation of Article 10 unless it was in accordance with the law, pursued a legitimate aim as stated in paragraph 2, and was deemed necessary in a democratic society to achieve those aims. Applying the three-fold proportionality test, the ECtHR found that the interference with freedom of expression met the first two prongs of the test. (para. 47).
Firstly, the Court referred to Delfi AS v. Estonia (2015); Perinçek v. Switzerland (2015), and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland (2017) and reiterated that the expression “prescribed by law” in Article 10 not only requires that the impugned measure should have a legal basis in domestic law but also refers to the quality of the law in question, which should be accessible to the person concerned. (para. 47). Considering the reasoning of the Appellate Court when applying the Advertising Act to the designs used by the Applicant, the ECtHR proceeded on the assumption that the measures imposed had a basis in domestic law. Therefore, although there was no explicit reference to the previous case law, the ECtHR accepted the applicability of the domestic law based on the appellate court’s reasoning in relation to the Advertising Act and the designs in question. (para. 48).
Secondly, the Court acknowledged that the legitimate aim of the interference was to protect the religious rights of others and the ethical considerations arising therefrom. The Court made reference to Sinkova v. Ukraine (2018), noting that there is no consensus among European countries regarding the definition of morality under Article 10 (2) of the Convention. Despite the lack of consensus, the Court accepted that the interference with all four designs pursued a legitimate aim in accordance with Article 10 § 2 of the Convention.
On the determination of whether the interference was “necessary” in a democratic society to achieve the legitimate aims pursued, the Court referred to Von Hannover v. Germany (2012) and Bédat v. Switzerland (2016). These cases reaffirmed that Article 10 of the Convention applies not only to “information” or “ideas” that are well-received or considered inoffensive, but also to those that may offend, shock, or disturb. The Court emphasized that such demands of pluralism, tolerance, and open-mindedness are essential for a democratic society. The Court emphasized that the term “necessary” in Article 10 § 2 implies the existence of a “pressing social need.” It noted that while the Contracting States have some leeway in determining whether such a need exists, it is not unlimited, and the Court plays a supervisory role in assessing whether restrictions are compatible with freedom of expression under Article 10. [Mouvement raëlien suisse v. Switzerland (2012), Animal Defenders International v. the United Kingdom (2013), and Bédat] (para. 50).
Further, the Court highlighted that the extent of the Contracting States’ margin of appreciation varies depending on factors such as the type of speech involved. Restrictions on political speech or matters of public interest have limited scope, while a wider margin of appreciation is given to States regarding expression that may offend personal convictions or involve matters of morals or religion. The Court also reiterated that freedom of expression, as outlined in Article 10 (2), is not absolute and comes with duties and responsibilities. Among these responsibilities is the duty to ensure that individuals’ rights guaranteed under Article 9, especially holders of religious beliefs, are peacefully enjoyed. The Court cited cases like Otto‑Preminger-Institut v. Austria (1994), İ.A. v. Turkey (2005), Aydın Tatlav v. Turkey (2006), Giniewski v. France (2006), and Klein v. Slovakia (2006), to reiterate that the expressions that gratuitously offend or disrespect objects of veneration go beyond the scope of legitimate criticism and may not be protected by Article 10.
Examining the particular circumstances of the case, the Court acknowledged that there was a disagreement between the parties regarding whether the designs used by the Applicant were solely commercial or aimed at initiating public debate. The domestic courts and the government considered them as commercial expressions, granting the authorities a wide margin of appreciation for interfering with the applicant’s rights under Article 10 of the Convention. However, the Court recognizes that the applicant’s brand had a broader objective of challenging stereotypes and contributing to public debates on sex and sexuality. [Identoba and Others v. Georgia (2015)] Some designs addressed same-sex relationships and served as social and political commentary. Considering the presence of messages on issues of public interest, the margin of appreciation should have been narrower. (para. 54-55).
On the design featuring the persona of a saint (the Royal Court inside Tamar) on condoms, the ECtHR agrees that discussing a public figure, even one who has been canonized, is permissible in a public debate. The choice of using condoms as a medium does not automatically render the expression inappropriate. The ECtHR acknowledged that the domestic court placed significant importance on the historical, cultural, and religious significance of the saint, including her depiction on frescoes and contributions to the church.. Consequently, the domestic court found that the manner in which the disputed design was used constituted an unjustified attack on a religious figure, violating the Advertising Act. The ECtHR regretted that the domestic courts did not assess the meaning of the text accompanying the disputed image. At the same time, it noted that the Applicant failed to explain, at the domestic level, how this specific design contributed to a public debate. Consequently, the ECtHR, while recognizing that domestic authorities are typically in a better position than international judges to evaluate the necessity of measures based on the local situation at a given time, expresses difficulty in accepting that the domestic authorities made an error in their findings. The ECtHR referred to cases like Otto‑Preminger-Institut, Wingrove v. the United Kingdom (1996), and Murphy v. Ireland (2003), to support the significance of local assessments. Therefore, the ECtHR does not dispute the domestic authorities’ determination that the design could be perceived as a gratuitous insult to the object of veneration for Georgians who follow the Orthodox Christian faith. (para. 56-58).
On the design featuring a panda face referencing a Christian holy day, the ECtHR finds that the reasons provided by the Appellate Court were insufficient to justify the interference. The ECtHR noted that the design was a satirical take on various ideas, including religious teachings, and it had already gained significant popularity as a piece of artistic expression. The ECtHR held that the Appellate Court’s dismissal of the applicant’s arguments failed to address whether there was a pressing social need to limit the dissemination of the design. (para. 59).
On the rest designs featuring a female left hand with a condom placed over two raised fingers and an image of a crown apparently made from a condom with a caption referring to a historical event, ECtHR noted that the domestic courts’ labeling and reasoning lacked justification. The ECtHR held that the domestic courts failed to demonstrate why these designs fell under the definition of unethical advertising or why there was a pressing social need to limit their dissemination. The ECtHR considered that the reasons provided by the domestic courts were not relevant and sufficient to justify the interference with the applicant’s freedom of expression. (para. 60-61).
In its conclusion, the ECtHR criticized the domestic courts’ decisions for giving priority to the ethical views of the Georgian Orthodox Church over values protected under Convention and Constitution of Georgia. It emphasized the importance of tolerance and acceptance of differing religious beliefs in a pluralistic society. ECtHR made a reference to the case law of the Constitutional Court of Georgia emphasizing the importance of avoiding the imposition of subjective beliefs on broader society through state institutions, including courts. The Court concluded that the reasons provided by the domestic courts were not relevant or sufficient to justify the interference with freedom of expression at least regarding three of the four disputed designs. Therefore, there has been a violation of Article 10 of the Convention. (para 62-63)
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling highlights the need for a careful and balanced approach when assessing the limits of freedom of expression. It emphasizes that the views of a particular religious group should not be given undue precedence over other protected values and international standards. The decision reaffirms the importance of a pluralistic society where individuals are expected to tolerate and accept the denial or criticism of their religious beliefs. Furthermore, the ECtHR clarifies that the reasons provided by the domestic courts, in this case, were insufficient to justify the interference with freedom of expression at least regarding three of the four disputed designs. Therefore, the ruling establishes a precedent that safeguards the right to freedom of expression and restricts the imposition of moral or religious beliefs on others through state institutions.
It is worth noting that the Court’s delicate position regarding the depiction of “King Tamar” in the design has sparked controversy in Georgia and resulted in the spread of misinformation about the ruling. Factcheck.ge has classified statements as “manipulation” stating that the ECtHR granted absolute protection to the saints and did not permit the Applicant to exercise her freedom of expression when it conflicts with religious symbols. Interestingly, the judge adjudicating this case at the domestic level, specifically at the Tbilisi Court of Appeals, was Levan Murusidze. Currently, he is sanctioned by the US State Department due to his involvement in significant corruption. He has also served as a judge in other notable cases that have been examined by the ECtHR, wherein the Court found violations of various articles of the Convention by domestic authorities, including the courts. In the Enukidze and Girgvliani v. Georgia case, for instance, the Court stated, “…domestic courts, as regards the deficient trial and the convicts’ early release……all acted in concert in preventing justice from being done in this gruesome homicide case.” (para. 276, Enukidze).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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