Case Summary and Outcome

The European Court of Human Rights held that the Republic of Moldova violated Article 10 of the European Convention on Human Rights, by unlawfully interfering with the National Youth Council of Moldova’s right to display an anti-discrimination advertisement. The case concerned the refusal by the Chișinău City Hall to permit a poster depicting caricatures of marginalized groups, which aimed to raise awareness about discrimination. The Court found that the refusal was not justified and that the national courts failed to adequately consider the broader public interest, rendering the restriction unnecessary in a democratic society. The Court determined that the impact of the advertisement, while potentially offensive to some, did not amount to incitement to discrimination or hostility. The restriction imposed by the authorities was specific to the public display of the caricatures and did not prevent the applicant association from disseminating its message through other means. Consequently, the Court concluded that the interference with the applicant association’s freedom of expression was not justified and found a violation of Article 10 of the Convention.

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Facts

In February 2011, the Moldovan Parliament initiated an anti-discrimination law, which ignited societal debates and protests, particularly around the inclusion of “sexual orientation” and the broader issue of homosexuality in Moldova. By March 2011, the draft law was withdrawn due to the controversies it stirred. By March 2011, the draft law was withdrawn due to the controversies it stirred. 

The Applicant Association, a non-governmental organization headquartered in Chișinău and represented by lawyer Ms. D. Străisteanu, was part of the Coalition Non-Discrimination (CND), a collective of several NGOs fighting against discrimination. Within the CND, the applicant association managed a project that aimed to establish a free helpline for discrimination victims. On 6 December 2011, the CND requested permission from Chișinău City Hall to post an advertisement prepared by the applicant association on city billboards. The advertisement featured caricatures of various marginalized individuals, including two men holding hands, a black man, an elderly woman, a pregnant woman, a person in a wheelchair, and a couple representing Roma people. The text accompanied the image: “Are you discriminated against? Call the anti-discrimination hotline free of charge and confidentially at 0-8003-8003.”

On 22 December 2011, the Deputy Mayor of Chișinău formed a working group to monitor social representations in advertising posters. The working group sought the opinions of the social groups depicted in the applicant association’s poster. The Roma association in Chișinău (the “SINTI”) and the Alliance of Organisations of People with Disabilities of Moldova expressed their disapproval. The SINTI criticized the caricature for conveying an unpleasant and unrepresentative image of the Roma, while the disability alliance objected to the depiction of the person in the wheelchair, arguing it was distressing and resembled a beggar. 

On 5 January 2012, the Deputy Mayor of Chișinău informed the CND that the working group, considering the opinions of the consulted associations, had decided not to permit the display of the poster. The decision cited concerns that the poster could divide society into social categories and groups, violating the principles of fairness, honesty, authenticity, and decency as stipulated in Article 7 of Law No. 1227-XIII of 27 June 1997 on Advertising (the “Advertising Law”).

On 19 January 2012, the CND sought an expert appraisal of the poster from the National Agency for the Protection of Competition (ANPC). On 22 February 2012, the ANPC informed them that most of its experts found the poster did not contravene advertising laws but suggested considering the views of the two consulted associations to prevent potential harm. Meanwhile, on 4 February 2012, the applicant association sued the City of Chișinău for an injunction to issue the poster permit, arguing that their freedom of expression and right to impart information were being infringed. They referred to the Freedom of Expression Law and contended that the caricature was chosen to depict the prohibited grounds of discrimination, reflecting their vision neutrally. The City of Chișinău defended its refusal by referring to the Advertising Law and arguing that the poster was contrary to principles of honesty and consumer protection. 

On 14 May 2012, the Chișinău Court of Appeal dismissed the applicant’s action, supporting the disapproval expressed by the associations and ruling that the poster harmed the targeted social groups. The applicant association appealed to the Supreme Court of Justice, reiterating their arguments and drawing a parallel with sexist advertisements that were allowed in the city.

On 12 September 2012, the Supreme Court of Justice rejected the appeal, endorsing the lower court’s conclusions and noting that the Advertising Law did not guarantee a right to display advertisements on public billboards. The court also stated that the Freedom of Expression Law was irrelevant in this context. During this period, on 29 May 2012, the Moldovan parliament adopted the Law on Equality, addressing broader issues of discrimination in the country.

The Applicant Association filed an Application before the European Court of Human Rights (ECtHR) alleging violation of Article 10 (freedom of expression) of the European Convention on Human Rights (Convention). 

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Decision Overview

Justice Arnfinn Bårdsen, Justice Jovan Ilievski, Justice Pauliine Koskelo, Justice Saadet Yuksel, Justice Diana Sarcu, Justice Davor Derenčinović, and Justice Gediminas Sagatys unanimously delivered the ruling. The primary issue before the Court was to determine, whether the refusal by the City of Chișinău to authorize the display of an anti-discrimination advertisement by the Applicant Association, based on the caricatures it featured, constituted a violation of the association’s freedom of expression under Article 10 of the European Convention on Human Rights.

The Applicant Association contended that the caricatures on its advertising poster fall within its freedom of expression, aiming to highlight traits that are grounds for discrimination. It was further contended that the refusal by the City of Chișinău to authorize the poster’s display constituted an unlawful interference with their freedom of expression and right to impart information. The Application Association criticized the city’s decision for not seeking the opinion of the National Agency for the Protection of Competition (ANPC), which deemed the poster legal, and for only consulting two associations. The Applicant contended that the refusal was driven by opposition to depicting a homosexual couple, influenced by the societal debate on the law on equality. The applicant also emphasized that such interference was unnecessary in a democratic society and highlighted a perceived double standard, noting that other advertisements deemed sexist were allowed by the city authorities. [paras. 41-44]

The Government, while acknowledging that there was an interference with the applicant association’s freedom of expression, contended that it was lawful under sections 7 and 9 § 2 of the Advertising Act and necessary to protect the rights of others. The Government asserted that the refusal to advertise was justified due to disapproval from two affected groups, aiming to prevent societal division. The Government refuted the Applicant Association’s claim that the real motive was to ban the depiction of a homosexual couple, deeming it speculative. The Government further contended that the Courts balanced the applicant’s rights with the need to protect the rights of others and prevent societal harm. Additionally, the Government pointed out that the Applicant Association faced no serious consequences as they could amend the caricatures and disseminate the hotline information through other means. The Government concluded that the authorities provided sufficient justification for their decision and offered a viable solution for reconsideration. [paras. 45-49]

The third-party intervenor, the European Roma Rights Center (ERRC) contended that anti-Gypsyism remains pervasive in Europe, with Roma facing significant discrimination and negative stereotypes. In Moldova, many Roma do not identify as such due to discrimination, lack of identity documents, living in poor rural housing, and facing higher poverty rates. They encounter severe employment and healthcare discrimination, with Roma women particularly disadvantaged. Educational attainment among Roma is low, and school dropout rates are high, with widespread harassment in schools. Despite anti-discrimination laws, Roma still struggles for equal access to rights and services. The ERRC notes a rise in discrimination and hate speech during the COVID-19 pandemic and the 2020 presidential campaign, including anti-Gypsy remarks from a former President. They also report widespread racial profiling, harassment, and violence by police and public officials against Roma. [paras 50]

The Court recognized that the caricatures included in the applicant association’s advertising image fall under the protection of freedom of artistic expression, a crucial aspect of the public exchange of cultural, political, and social ideas, as affirmed in cases like Ernst August von Hannover v. Germany, (2015) and Bohlen v. Germany, (2015). The Court acknowledged that the parties agree the refusal to authorize the advertisement constitutes an interference with freedom of expression. However, such interference is permissible under Article 10 of the Convention if it is “in accordance with the law,” pursues a legitimate aim, and is “necessary in a democratic society.” [paras. 54-55]

On the Legality

On the legality of the interference, the Court referenced the general requirements related to the “quality of law”, applicable in particular in the context of Article 10 of the Convention, as outlined in the cases NIT SRL v. Republic of Moldova,(2022) and Sanchez v. France, (2023). It noted that the Applicant argued the interference was unlawful due to non-compliance with Article 28 of the Advertising Act, which purportedly assigned sole authority to the ANPC, not the City of Chișinău, to rule on the legality of the advertising. The domestic courts, however, based their decision on other sections of the Act, which were deemed consistent with the law. [paras. 57-58] The Court emphasized that its review of domestic law is limited to ensuring that the national interpretation is not arbitrary or manifestly unreasonable. It found no evidence suggesting that the decision of the national courts to rely on sections 8 § 3 and 9 § 1 (c) of the Advertising Act was arbitrary or irrational. The applicant did not demonstrate that these provisions were inaccessible or unforeseeable. Consequently, the Court concluded that the interference was lawfully prescribed according to the provisions of the Advertising Act. [paras. 59-60]

On the goal pursued, the Court determined that the refusal to authorize the display of the disputed advertisement was aimed at preventing the broadcast of content likely to stigmatize and undermine the dignity of certain groups, including persons with disabilities and Roma. This objective is consistent with protecting the rights of others as stipulated under Article 10 § 2 of the Convention, as supported by cases such as C8 (Canal 8) v. France, (2023) and Sanchez v. France, (2023). The Court found no evidence to substantiate the applicant’s claim that the real motive was to ban a poster depicting a homosexual couple, concluding that the authorities’ actions were not driven by any predominant ulterior aim beyond the protection of others’ rights. [paras. 61-63]

On the Necessity 

The Court reviewed the well-established principles for assessing whether a restriction on freedom of expression is “necessary in a democratic society” as outlined in its Sanchez case. The Court reiterated that freedom of expression is fundamental to a democratic society and applies not only to inoffensive or popular ideas but also to those that may offend or disturb. Restrictions must be narrowly interpreted, and the need for such restrictions must be convincingly established. [para. 64] The Court has jurisdiction to review whether such restrictions are proportionate to the legitimate aim pursued and whether national authorities’ justifications are relevant and sufficient.

The Court emphasized that expression relating to matters of general interest enjoys high protection, with a limited margin of appreciation for states. [para. 65] It highlighted that restrictions on freedom of expression are particularly scrutinized when they involve the press or deal with topical issues. Prior restrictions on publication are dangerous and require a rigorous examination to avoid depriving information of its value. [para. 67] Additionally, the Court referred to Zemmour v. France, (2022) and stressed that tolerance and respect for all human dignity are foundational to democratic societies, and restrictions to prevent hate speech must be proportionate to the legitimate aim pursued. [para. 68]

When assessing whether hate speech has occurred, the Court considers factors such as the context of the remarks, their potential to incite violence or hatred, and their formulation. [para. 69] It notes that even without a direct call to violence, insulting or defamatory speech against specific groups may justify prioritizing the fight against such speech over the preservation of freedom of expression (Savva Terentyev v. Russia, (2018); Beizaras and Levickas v. Lithuania, (2020), and Féret v. Belgium,2007). The Court thus approaches these cases with a focus on context and the need to protect vulnerable minorities from harmful speech. 

Applying these principles to the present case, the Court evaluated whether the restriction on the applicant association’s advertising poster was necessary to protect the rights of others, particularly the dignity of Roma and persons with disabilities. The Court acknowledged that these groups are vulnerable to negative stereotypes and discrimination, as established in prior cases such as Aksu v. Turkey, (2012) and GL v. Italy (2020). [para. 70] The Court held that the issue at hand was whether the caricatures on the poster, which stereotypically depicted these groups, were justified by the aim of highlighting discrimination and promoting an anti-discrimination helpline. The Court observed that the poster was part of a broader anti-discrimination campaign and was intended to address a significant public interest issue in Moldova. It was not a commercial advertisement but rather a “social” advertisement aiming to raise awareness about discrimination. [para. 70] The Court noted that the caricatures were meant to illustrate and draw attention to existing stereotypes, rather than to perpetuate or incite hatred. The Court referred to Medžlis Islamske Zajednice Brčko v. Bosnia and Herzegovina, (2017) and held advertisement in question, part of an anti-discrimination campaign, was deemed a matter of public interest, highlighting the role of the applicant association as a social watchdog, similar to the press, deserving enhanced protection under Article 10. [paras. 73-74]

The Court referred to Patrício Monteiro Telo de Abreu v. Portugal, (2022), and C8 (Canal 8) v. France, (2023) and emphasized that satire, as a form of artistic expression, should be carefully examined, noting that the applicant association’s intent was not to insult or stigmatize vulnerable groups but to draw attention to existing stereotypes and discrimination. [paras 74-76] The Court concluded that the caricatures, despite containing negative stereotypes, were part of an effort to critique and draw attention to these stereotypes and were not intended to incite hatred or intolerance. [para. 76] The Court further criticized the national courts for their limited reasoning, which mainly relied on opposition from two NGOs without adequately considering the broader context and public interest involved. [para. 78] The Court held that the national courts did not fully weigh the enhanced protection afforded to freedom of expression in public interest matters against the need to protect vulnerable groups from harmful speech. This lack of effective judicial review further constrained the margin of appreciation of the Moldovan authorities [para. 79]

The Court held that the impact of the advertisement was significant due to its planned public display, which could have reached many people. [para. 79] Although the poster could potentially offend, the Court did not find that it would incite discrimination or hostility. The restriction was specific to the public display of the caricatures and did not completely prevent the applicant association from communicating its message through other means, such as the Internet. [para. 80]  In conclusion, the Court determined that the interference with the applicant association’s freedom of expression was not justified. The Court highlighted that the advertisement related to an important public interest issue, and the limited interference did not outweigh the importance of protecting expressive rights in this context. [para. 81] The failure of the domestic courts to conduct an effective review further supported the conclusion that the restriction was not necessary in a democratic society. Consequently, the Court found a violation of Article 10 of the Convention. [para. 82]

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