Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
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The European Court of Human Rights determined that government seizure and forfeiture of a film did not violate the right to freedom of expression under Article 10 of the European Convention on Human Rights. An Austrian audio-visual media promotion association screened a film that contained imagery trivializing Christianity. The public prosecutor instituted a criminal proceeding against the organization at the request of the Roman Catholic Church for disparaging religious doctrines under Section 188 of the Penal Code. Pursuant to the Austrian Media Act, the prosecutor later seized the film and prevented its public distribution. The Court reasoned that the absence of a uniform position in Europe on the significance of religion in society, meant that national authorities were entitled to a certain margin of appreciation in assessing the necessity of imposing restrictions to avoid offending religious beliefs.
Otto-Preminger-Institut für audiovisuelle Mediengestaltung (OPI), was a private association in Innsbruck, Austria that sought to promote creativity, communication and entertainment through the audio-visual media.
In 1985, the association announced a series of six showings of the film Das Liebeskonzil (“Council in Heaven”). The show was restricted for persons 17 and under. The announcement did not include the contents of the movie itself, but carried a statement that trivial imagery and absurdities of the Christian creed would be caricatured.
At the request of the Roman Catholic Church, the public prosecutor brought criminal proceedings against OPI’s manager, Mr. Dietmar Zingl, on May 10, 1985. He was charged with the act of “disparaging religious doctrines,” prohibited under Section 188 of the Penal Code.
The Court first found that the seizure of the film pursued a legitimate aim within the meaning of Article 10 of the Convention. It noted that generally “the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines.” [para. 47]
In the present case, Section 188 of the Austrian Penal Code was intended to suppress behavior that was directed against religion, and likely to cause “justified indignation.” Thus, according to the Court, its purpose was to protect citizens from having their religious beliefs insulted by public expression. Based on the terms used in the decisions of the Austrian courts, and how they were phrased, the Court found that the seizure as an interference did indeed pursue a legitimate aim. [para. 48]
The Court then discussed the necessity for such seizure and forfeiture in a democratic society. It first reiterated the importance of the Handyside v. United Kingdom, App. No. 5493/72 (1976) rule, which holds that Article 10 of the Convention does not only apply to “‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’” [para. 49]
Here, the Court first held that the domestic court of Austria did not overstep their margin of appreciation in concluding that there was “a pressing social need” for the preservation of religious peace. While taking into account that public access to the film at issue was subject to payment and age limitation, the Court found that the proposed screening in a city, where Roman Catholic is the majority religion, was widely advertised and therefore, amounted to an expression sufficiently public to cause offense. The Court also considered that in seizing the film, the authorities acted to ensure the religious peace in that region and to prevent people from feeling the object of the attacks on their religious beliefs in an unwarranted and offensive manner. It then applied the same reasoning to the government’s forfeiture of the film.
Accordingly, the Court found that the government seizure and forfeiture of the film did not amount to a violation of Article 10 of the Convention. ((See Religion, morality, blasphemy and obscenity by ARTICLE 19 on further discussion of free speech restrictions for protection of public morals and religious beliefs in the European human rights system, available at: https://www.article19.org/pages/en/religion-morality-blasphemy-obscenity-more.html.))
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case clearly shows the limitations and applications for the margin of appreciation. The well known rule of Handyside v. United Kingdom, App. No. 5493/72 (1976) was applied here, and the local authorities have the right to assess and decide what would be politically, socially, and culturally sensitive in the local area. In the application of the margin of appreciation, it is important to outline the impact that it could have on the society. This case neither expands expression nor contracts it, but gives a better understanding towards the application of margin of appreciation and the local interpretation of the law.
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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