Content Regulation / Censorship, National Security, Commercial Speech
The Case of the Kyaw Printing House
Closed Contracts Expression
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The Grand Chamber of the European Court of Human Rights held by nine votes to eight that the ban by the Swiss authorities of the posters of an association did not constitute a violation of their right to freedom of expression and, unanimously, that it had not breached their right to freedom of religion, upholding the judgment by the First Section of the ECtHR. The applicant, Mouvement Raëlien Suisse, requested authorisation from the local authorities of the city of Neuchâtel to run a poster campaign featuring phrases such as “The Message from Extraterrestrials” and “Science at last replaces religion”, however, the local authorities denied such authorisation citing previous refusals on grounds of public order and immorality. The Court held that the Swiss authorities acted within their margin of appreciation and thus that there were no serious reasons to substitute the Federal Court Assessment with its own.
In March 2001, Mouvement Raëlien Suisse (MRS), the Swiss national branch of the non-profit association Raelian Movement, applied to the city of Neuchâtel’s police administration for authorisation to conduct a poster campaign on the dates between April 2 to 13, 2001. The Raelian Movement is an organization founded in 1976 in Geneva by Claude Vorilhon (also known as “Raël”) with the purpose of contacting and establishing good relations with extraterrestrials. The movement believes that Raël has contacted the “Elohim”, extraterrestrials who have “advance technology” and are said to have created life on earth and several world religions, including Christianity, Judaism and Islam. Its followers believe that scientific and technical progress is of fundamental importance and that cloning, and the “transfer of conscience” will enable man to become immortal, and so have a favourable opinion on human cloning. Additionally, they advocate for “Geniocracy”, a governmental system where power is only given to the individuals who have the highest intellectual level. Raël also has an “instruction manual” called Sensual Meditation, given by the extraterrestrials to humans so they can experience “a sexuality felt with all one’s senses, so as to experience the cosmic orgasm” [para. 13].
The 2001 poster had the phrase “The Message from Extraterrestrials” in large yellow characters on a dark blue background with the web address of the Raelian Movement and a French telephone number in similar characters but in a bolder type. It also had the expression “Science at last replaces religion” and images of extraterrestrials’ faces and a pyramid, along with planet Earth and a flying saucer. Similar posters were authorised in December 1999 in several Swiss cities, including Zurich and Lausanne.
On March 29, 2001, the request was denied based on a 1995 report from the French parliament on sects and a judgment from a Swiss cantonal Civil Court that indicated that the Raelian movement participated in activities catalogued as immoral and contrary to the public order. Neuchâtel’s municipal council dismissed MRS’s appeal in December 2001 on the grounds that the movement was a dangerous sect that could not rely on the protection of religious freedom. The council held that the interference with MRS’s right to freedom of expression had a basis in Article 19 of the Administrative Regulations for the City of Neuchâtel (the Regulations), which was proportional in the aims of protecting the public interest as the organization promoted, inter alia, human cloning, “Geniocracy” and “sensual meditation”.
In October 2003, this decision was upheld by Neuchâtel Land Management Directorate (NLMD). The NLMD accepted that the movement’s doctrine was a “religious conviction protected by freedom of conscience and belief” and that the poster was not in itself offensive [para. 17]. However, it noted the association’s advocacy on “Geniocracy” and human cloning and, based on a 1998 judgment by the Fribourg Cantonal Court, that the movement “theoretically” promoted paedophilia and incest, that “sensual meditation” could enable abuse and that “the website of Clonaid, to which the Raelian Movement’s site contained a link, offered specific services in the area of cloning, and the notion of eugenics was contrary to the principle of non-discrimination” [para 17]. Consequently, the NLMD concluded that the poster campaign would be prejudicial to other people’s rights and morals and that the MRS had other means at its disposal to disseminate these ideas.
In their appeal before the Administrative Court for the Canton of Neuchâtel, the MRS argued that the refusals amounted to censorship and that defending “Geniocracy”, cloning and sensual meditation could not be construed as being offensive opinions. It rejected the allegations that the association promoted paedophilia by saying that, on the contrary, they denounce it through their association Nopedo. Nevertheless, the Administrative Court dismissed their appeal in April 2005 by concluding, using similar arguments to the Directorate, that the dissemination of the association’s ideas on a public highway was not justifiable.
The MRS appealed to the Federal Court which, on September 20, 2005, dismissed the appeal. It held that, notwithstanding the danger a religious movement may represent, the association could still rely on their freedom of expression. The Federal Court emphasized that no citizens had “an unconditional right to an extended use of public space” and that when granting authorization for the extended or private use of public space, the State must balance the interest at stake, considering the right to freedom of expression’s substantive content [para. 21]. The Court held that the grounds for refusal in lower jurisdictions were based on respect for morality and the Swiss legal order and the view that it was necessary to consider not only the content of the poster but the ideas promoted by the Raelian Movement which could be accessed from their website. The MRS had criticized the authorities for not focusing only on the content of the poster and submitted that if they did engage in any conduct that was immoral or contrary to public order, the association would have been dissolved by the courts based on Article 78 of the Civil Code: as no decision to that effect had been made, the movement should not have been prevented from publicising its philosophy and world vision. The Court accepted that the poster itself did not denote anything unlawful or likely to offend the public, but as it was an invitation to the association’s website it was legitimate to assess whether the content of the website had data, links or information that would be offensive or contrary to the law. The Court held that the association’s activities and opinions constitute a justification for restricting its advertisement, and found that the refusal to authorize the poster campaign was justified to prevent the commission of criminal offences under the laws of Switzerland (cloning and sexual acts with children) and which could be seriously offensive (especially the topics on children’s “sensual awakening” and “Geniocracy”). It also commented that the refusal served to make sure that the State is not seen as endorsing these opinions or acts. Consequently, the refusal of the MRS’s poster was justified by sufficient grounds of public interest. The Federal Court stressed that it only restricted the display of posters in the public space and that the association could still express its belief with other means of communication, and so noted that the prohibition of public displays was proportional. The Court held that the restriction to the MRS’s rights was “necessary ‘in a democratic society’ in particular for the protection of morals, within the meaning of Article 9 § 2 and Article 10 § 2 of the ECHR” [para. 21].
The MRS approached the European Court of Human Rights, which delivered a judgment on January 13, 2011, finding that there had been no violation of the Article 10 of the European Convention on Human Rights. It agreed with the Federal Court’s analysis and held that, as the Swiss courts had carefully analysed their decisions and that the restriction was limited to the poster, the competent authorities did not exceed their margin of appreciation given to them by the regulation of the extended use of public space.
MRS sought a referral to the Grand Chamber of the European Court of Human Rights, which heard the matter on November 16, 2011.
The Court delivered a majority judgment of nine to eight. Judge Bratza delivered a concurring judgment: Judges Tulkens, Sajó, Lazarova Trajkovska, Bianku, Power-Forde, Vučinić and Yudkivska delivered a dissenting judgment; Judges Sajó, Lazarova Trajkovska and Vučinić delivered a separate dissenting judgment; and Judge Pinto de Albuquerque delivered a dissenting judgment. The central issue for the Court’s determination was whether the interference in MRS’s right to freedom of expression through the banning of the posters was “necessary in a democratic society”.
The MRS, citing the position held by the Court in Women On Waves and Others v. Portugal, argued that Switzerland had overstepped their margin of appreciation by banning the dissemination of ideas that were contrary to that of the majority. It also argued that being in favor of cloning and “Geniocracy” could not be considered illegal, and that as the association had the practice to expel members on any suspicion of acting against the law to protect minors and was not actually involved in cloning, it did not perform nor promote the commission of acts contrary to the law. Finally, it echoed the opinion of the lower Chamber’s dissenting judges Rozakis and Vajić, who were of the view that “the authorities’ margin of appreciation was narrower when it came to negative obligations” [para. 38].
The Government disagreed with the lower Chamber judgment’s dissenting opinion, arguing that when assessing the extent of the State’s margin of appreciation, it placed too much weight on the difference between negative and positive obligations. For the government, the present case fell into the category of cases where how the State’s obligation was catalogued depended on “whether the authorities were criticised for having done something or for failing to do something” [para. 41]. It conceded that the situation would be different in the present case if there was no restriction to access to public space.
The organization, Article 19, was admitted as a third-party intervener. It asked the Court to examine the margin of appreciation that States held for restrictions on freedom of expression in cases that involved the diffusion of information through the internet. It argued that the level of importance held by freedom of expression on the internet in international law meant that the State’s margin of appreciation should be narrower. It presented comparative case law where different courts found it disproportionate to require the deletion of a link without addressing the source of the supposedly illegal content first.
As it was not disputed that banning the posters of the association constituted an interference to their right to freedom of expression, and that the restriction was based on Article 19 of the Administrative Regulations of the City of Neuchâtel and the legitimate aims pursued by the Government were to “prevent crime, to protect health or morals and to protect the rights of others” [para. 54], the remaining question to the Court was whether the interference was “necessary in a democratic society”.
In its analysis, the Court distinguished this case from Tüzel v. Turkey and Tüzel v. Turkey (no. 2), where it had found poster bans violated Article 10 on the basis that the regulations allowing the bans were “not subject to any strict or effective judicial supervision” [para. 57]. It also contrasted MRS’s case with the Appleby and Others v. the United Kingdom and Women On Waves cases as those had concerned the use of privately owned space and the refusal to authorize a ship to enter the territorial waters of a State, respectively. The Court held that in the case at hand there was no general ban on spreading certain ideas, but a ban on using regulated and supervised public spaces facilities. It stressed that “individuals do not have an unconditional or unlimited right to the extended use of public space, especially in relation to facilities intended for advertising or information campaigns” [para. 58].
Referring to the margin of appreciation, the Court stated that the breadth of this margin varies depending on several factors, including whether the type of speech at issue is particularly important. This meant that, for example, States had a wider margin if the speech concerns commercial matters or advertising, and a narrower one for political speeches. As the views of MRS’s website were not political per se as they did not refer to Swiss political situation but rather closer to being commercial, the Court found that the State’s margin of appreciation was broad. In that sense, the Court held that it could not interfere with the national and local authorities’ choices as they are closer to their country’s reality, unless there were “serious reasons” that required the Court to impose its own assessment [para. 66]. In that sense, the Court agreed that banning the campaign was an indispensable measure considered by the national authorities to protect the health and morals of the country.
The Court agreed with the lower Chamber’s position that the national courts gave “relevant” and “sufficient” reasons for banning the poster [para. 72]. It felt it was necessary for the domestic courts to examine the association’s website because the impact caused by the poster would have been multiplied by its reference on account of everyone, including minors, being able to access the web page. Further, it stressed that all the authorities in Switzerland who handle the case gave sufficient reasons in their decisions. It also agreed with the lower Chamber’s considerations that it was reasonable for the national authorities to consider banning the campaign as indispensable to protect the health, morals, rights of others and to prevent crime. Finally, the Court found the impugned restriction was proportionate since its scope was limited to the display of posters in public places and, in consequence, that the government caused “the minimum impairment of the applicant association’s rights because it did not constitute a banning of the “association itself or its website” [para. 75]. It added that MRS “is able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes” and so the banning of the posters is not disproportionate [para. 75].
The Court found that there were no serious reasons to substitute the Federal Court Assessment with its own because the national authorities acted in the present case within their margin of appreciation, and they gave “relevant and sufficient” reasons to justify their decisions.
Accordingly, the Court held that there had not been a violation of Article 10 of the Convention, and agreed with the lower Chamber’s view that to separately examine whether there has been a violation of the right to freedom of religion under article 9 was not necessary.
Judge Brazta arrived at the same conclusions as the majority with some hesitation. In his view, the parties were in dispute about whether the ban amounted to a direct interference of Article 10 of the Convention and, hence, “involving the negative obligations of the State under Article, or as giving rise to the positive obligations of the State to secure the association’s right to freedom of expression” [para. 3]. The Court has treated the case as one of direct interference that required justification under paragraph 2 of said Article, observing that the boundaries between negative and positive obligations could not be precisely defined and that in any case the State enjoys some margin of appreciation. While accepting the Court’s approach, Judge Bratza considered that in this case the positive obligations of the State were the ones primarily involved and would had held that MRS’s complaint was not about a general restriction on its activities or of its right to express its beliefs, but more specifically, about the municipal authority’s refusal to allow the association to have access to the public billboards in the city for displaying a specific poster: the case was about the limitation on where MRS had the ability to communicate their views. Judge Bratza did not believe that Article 10 should be interpreted as “imposing an obligation on national authorities to provide unconditional and unrestricted access to the use of public facilities to impart information or ideas” [para. 4]. He agreed that the poster constituted advertising type of speech which meant that the local authorities had a wider margin of appreciation, and so he accepted that the reasons given by the government were relevant and sufficient and so Article 10 was not violated.
In joint dissenting opinion of Judges Tulkens, Sajó, Lazarova Trajkovska, Bianku, Powerforde, Vučinić and Yudkivska, the judges noted that in this case, the ban was “indirect”, as it was based on the opinions of the association and on the attributed conduct of some of its members. They questioned whether there was a “pressing social need” to ban the poster campaign without similarly banning MRS, especially when the prevention of grave criminal offences was at stake. The Judges’ view was that the reasons given to justify the ban were not “sufficient” to justify the interference with the right to freedom of expression and would have held that the Federal Court failed to assess to what extent the ban was necessary and proportionate for preventing crime as the legitimate aim. The Judges acknowledged that sensitivities may justifiably differ inside a single State, in this case, the different approaches taken with regards of the poster by other Swiss Cantons considerably weakened the legitimacy of the grounds that justify the interference. In their words “Danger, if it exists, does not disappear with borders, wherever they may be” [para. 7]. The Judges also disagreed with the majority’s conclusion that the measure was not disproportionate because MRS could still use other means to express its ideas. The Judges noted that it was not the role of the Court to judge in which manner individuals choose to express themselves, as that would impose on MRS the burden of proving the necessity of the chosen means of communication. They also considered that the special status granted by the Grand Chamber to advertising in public space should, in contrast, require greater neutrality by public authorities, with equal access for all persons and entities that are not expressly prohibited, even if the authorities disagree with the ideas conveyed, otherwise Article 10 of the Convention would be in danger of becoming inoperative.
Judges Sajó, Lazarova Trajkovska and Vučinić described the majority decision as introducing a new type of “low-level” speech that did not hold the same protection given to speech in general, and noted that “even restrictions on commercial advertising should be scrutinised closely by the Court, who should weigh the requirements of [the] particular features [of such advertising] against the advertising in question” [para. 1]. The Judges disagreed with the majority’s conclusion that the poster was a commercial advertisement because its purpose was not to offer services or goods but to make people think about the ideas promoted by the applicant association and possibly change their view of the world. They stressed the importance given in other jurisdictions, including the US, Canada and Germany, to recognize government property opened to the public (e.g., billboards) for expressive purposes to be a public forum that should be open to all speakers. In this case, the Swiss authorities had restricted access to billboards by making them “subject to substantive content analysis” [para. 2.1].
Judges Sajó, Lazarova Trajkovska and Vučinić also disagreed with the government’s reference to the link to the Clonaid website as part of their assessment of whether the ban was justified to serve a pressing social need, and contested the extent to which information connected to MRS via a hyperlink could create a pressing social need, as they should not be held responsible for the unlawful content referred to by using a hyperlink.
Judges Sajó, Lazarova Trajkovska and Vučinić also would have held that the national authorities had not provided sufficient explanation, and that the ban conveyed an official legal position on MRS’s views with an additional effect towards censorship. As such, in their words, they disagreed with the Court’s decision because “freedom of expression cannot be left to strive under the dictates of governmental fear of public sensitivities” [Section V].
Judge Pinto de Albuquerque disagreed with the government’s argument that approving the poster would mean that there was an implicit authorisation of MRS’s ideas because, under the public forum doctrine, States are not expected to support all messages shared in public spaces and facilities: there is “no presupposition that the State endorses tacitly or expressly the content of that message” [p. 50]. The Judge would have held that the present case should have been analysed in terms of the negative obligations arising from Article 10 of the Convention because the Swiss authorities had an obligation to abstain from restricting MRS’s freedom of expression by denying authorisation for the poster campaign. While agreeing that the Swiss authorities had to assess the content of MRS’s website, the judge emphasised that this examination should consider the nature of the internet because, in his words, “if streets and parks of a city are the historical quintessential public fora, the Internet is today’s global marketplace of ideas” [p. 54]. Judge Pinto de Albuquerque considered that to respect the principle of internet neutrality, the State’s margin of appreciation when it comes to information disseminated through the internet should be narrower – particularly with regards to hyperlinks to websites that are not de facto or de iure under control of the hyperlinker. The Judge would have held that linking could not be considered a tacit expression of approval – contrary to the Swiss officials’ assumption in their analysis for the refusal.
Judge Pinto de Albuquerque disagreed with the majority’s assessment that the speech of the association was commercial, and would have held that “the encompassing and mixed nature of the applicant association’s speech, involving several issues of general interest, narrows the breadth of the margin of appreciation afforded to the State” [p. 58]. The judge would have held that the banning of the poster did not pass the proportionality test as MRS was not engaged in any unlawful cloning activity, their speech on the substitution of religions by a contended “scientific atheism” and its criticism of traditional churches was not a form of hate speech or denigrating the clergy, religion or religious institutions, that the concept of “Geniocracy” was an “utopia” and that no conclusive actions showed a pattern of minors’ sexual abuse within the association. Accordingly, the Judge would have held that the reasons upon which the ban was based were not sufficient and that the interference was not to safeguard a pressing social need.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by recognizing a wider margin of appreciation for States to assess whether grounds for public interest override an individual’s right to freedom of expression, specifically, for speeches related to commerce or advertising. In doing so, it fragmented the level of protection given to speech based on how is categorized, where, for instance, political speech is granted more protection than the one applicable to advertisements. In addition, as pointed out by Judge Pinto de Albuquerque in his dissenting judgment, in the present case the encompassing and mixed nature of the speech which involved several issues of general interest should have required a narrower margin of appreciation.
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