PROCON-SP v. McDonald’s
Closed Expands Expression
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The European Court of Human Rights found that the Lithuanian authorities had violated the right to freedom of expression by fining a company for its clothing advertisements featuring models that resembled religious figures. The Lithuanian courts upheld the fine on the basis that the advertisements were contrary to “public morals” and, therefore, in breach of advertising laws. The European Court of Human Rights held that the advertisements, on their face, were not gratuitously offensive and did not incite hatred on the grounds of religious belief. Furthermore, it found that the domestic courts had not provided relevant and sufficient reasons for why the advertisements were contrary to public morals. It was critical of the domestic authority’s reliance on the views of one dominant religion in Lithuania when deciding that the advertisements were contrary to public morals, as well as the domestic authority’s failure to specifically explain how the advertisements were offensive. In finding a violation of the right to freedom of expression, the European Court of Human Rights warned that it was not compatible with the European Convention on Human Rights for a minority’s right to freedom of expression to be conditional on acceptance by the majority.
The case concerns a Lithuanian company, Sekmadienis Ltd., which ran an advertisement campaign for two weeks in September and October 2012. The campaign was for a clothing line, and it ran on the company’s website and on a number of public billboards in the capital city (Vilnius). The images used in the campaign presented a male and female model with halos. The man had long hair and tattoos. The female model wore a white dress and held a string of beads. The advertisements carried the following captions: “Jesus, what trousers!”, “Dear Mary, what a dress!”, and “Jesus [and] Mary, what are you wearing!”
While the campaign was ongoing, the State Consumer Rights Protection Authority (SCRPA) received four complaints about the advertisements. After a referral from the SCRPA, a majority of the Lithuanian Advertising Agency (LAA) found that the advertisements had breached the principle of decency and the rule against offending the feelings of religious people, both of which could be found under the Code of Advertising Ethics. The SCRPA then forwarded the opinion and the complaints to the State Inspectorate of Non-Food Products, which subsequently warned that the advertisements could be in breach of advertising law on the basis they were contrary to “public morals.”
In January 2013, the SCRPA asked the Lithuanian Bishops Conference, the territorial authority of the Roman Catholic Church in Lithuania, for an opinion on the advertisements. It opined that “[t]he 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”. [para. 16]
On March 21, 2013, the SCRPA adopted a decision finding that the advertisements were contrary to “public morals” and, thus, in violation of Article 4(2)(1) of the Law on Advertising. The SCRPA reasoned that the images in the advertisements created an impression for the average consumer that the depicted persons and objects were related to religious symbols. The SCRPA went on to note that “religious people react very sensitively to any use of religious symbols or religious persons in advertising, especially when the chosen form of artistic expression is not acceptable to society – for example, the bodies of Jesus and Mary are adorned with tattoos.” [para. 18] It concluded 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, promotes a lifestyle which is incompatible with the principles of a religious person, and that way the persons of Christ and Mary are degraded as the sacred symbols of Christianity.” [para. 18] The SCRPA noted that the feelings of religious people were actually offended because it had received many complaints over the advertisements. The company was ordered to pay a fine of approximately 589 EUR.
The company subsequently complained to the Regional Administrative Court, and then appealed to the Supreme Administrative Court. It argued, among other things, that the captions used in the advertisements adopted the terms “Jesus” and “Mary” as emotional interjections, commonly used in Lithuania, and were not referencing religion. It also argued that the advertisements were not offensive and were protected under their right to freedom of expression. Both courts dismissed the company’s complaints, holding that the SCRPA had correctly assessed all the relevant circumstances in finding that the advertisements were contrary to “public morals.” The Supreme Administrative Court reasoned that “symbols of a religious nature occupy a significant place in the system of spiritual values of individuals and the society, and their inappropriate use demeans them [and] is contrary to universally accepted moral and ethical norms.” [para.25]
The President of the Supreme Administrative Court subsequently asked that court to examine whether there were grounds for reopening the proceedings in order to address the company’s argument that there had been an impermissible restriction on its right to freedom of expression. However, the Supreme Administrative Court decided not to reopen the proceedings stating that there had been no violation of the right to freedom of expression and there were no grounds to find that the law had been interpreted or applied incorrectly. Moreover, the Supreme Administrative Court observed that the advertisements had a purely commercial purpose and had not contributed to a public debate concerning religion. It went on to state that its previous decision had taken into account the fact that Catholicism was the religion of a huge majority of Lithuania and that the use of its most important symbols in the advertisements, which distorted their meaning, offended the feelings of religious people.
While these proceedings were ongoing, the Government of Lithuania amended Article 4 of the Law on Advertising to include a provision banning advertisements that expressed “contempt for religious symbols”. [para. 35]
The company brought their case to the European Court of Human Rights, complaining that the fine that had imposed against it violated its right to freedom of expression as enshrined in Article 10 of the European Convention on Human Rights. It argued that the interference was not “prescribed by law” because the advertising law at the time did not prohibit the use of religious symbols in advertising (hence the need to amend the law while proceedings were ongoing). It also argued that the fine could not be considered as “necessary in a democratic society,” particularly since the advertisements were not gratuitously offensive or profane. Moreover, it argued that no single faith could have claimed to be the source of “public morals,” and “public morals” could not be equated to religious morals. The Government argued, among other things, that the interference was “prescribed by law” as Article 4 of the Law on Advertising was accessible and foreseeable. It argued that it had a wide margin of appreciation in this case since the advertisements were commercial speech and did not contribute to a debate of public interest. It also argued that the fine itself was close to the minimum provided by law and was therefore proportionate.
The European Court of Human Rights (Court) began by noting that it was not disputed between the parties that the fine imposed had interfered with the company’s right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention). It was left for the Court to consider whether the fine was “prescribed by law,” was in pursuit of a “legitimate aim,” and was necessary in a democratic society.
The Court decided not to reach a general conclusion on whether the interference was “prescribed by law.” On the one hand, it accepted that the concept of “public morals” under Article 4 of the Law on Advertising was necessarily broad and subject to change over time. On the other hand, it had doubts about whether the interpretation of the provision given by the domestic courts in this case could reasonably have been expected. The Court could not ignore the fact that the national authorities felt the need to amend the Law on Advertising in order to establish an explicit prohibition on advertising which expressed “contempt for religious symbols” while the company’s case was still ongoing.
The Court accepted that the interference sought two “legitimate aims,” namely the protection of morals arising from the Christian faith and shared by a substantial part of Lithuanian population, and protection of the right of religious people not to be insulted on the basis of their beliefs.
The Court then considered whether the interference was necessary in a democratic society. The Court pointed out that a wider margin of appreciation was available to Member States when regulating freedom of expression in relation to commercial speech and matters liable to offend intimate personal convictions within the sphere of morals or religion. The Court began by acknowledging that the national authorities’ margin of appreciation when regulating the speech in this case was broader given (i) the unmistakable resemblance between the persons depicted in the advertisement and religious figures, and (ii) the fact that the advertisements had a commercial purpose and were not intended to contribute to any public debate concerning religion or any other matters of general interest.
The Court then considered whether the national authorities had acted within this margin of appreciation. First, it noted that, on their face, the advertisements did not appear to be gratuitously offensive or profane, nor did they incite hatred on the grounds of religious belief or attack a religion in an unwarranted or abusive manner. Secondly, it added that advertisements that are prima facie inoffensive could still be offensive in certain circumstances. However, in such cases, it was for the domestic courts to provide relevant and sufficient reasons why such advertisements were nonetheless contrary to public morals. [para.78]
When considering whether “relevant and sufficient” reasons had been provided, the Court found that the reasons provided by the domestic courts were “declarative and vague,” and did not sufficiently explain why the reference to religious symbols in the advertisements was offensive (other than for the very fact that it had been done for non-religious purposes). Moreover, the domestic authorities had not addressed the company’s argument that the names of Jesus and Mary in the advertisements had not been used as religious references but were, instead, used as emotional interjections common in spoken Lithuanian and for comedic effect.
The Court took particular issue with the SCRPA reasoning that the advertisements “promot[ed] a lifestyle which [was] incompatible with the principles of a religious person.” The Court reasoned that the SCRPA had not sufficiently explained what that “lifestyle” was, how the advertisements were promoting it, and how a “lifestyle” that was “incompatible with the principles of a religious person” would be incompatible with public morals. [para. 80]
The Court also criticized the fact that the only religious group which had been consulted in the domestic proceedings had been the Roman Catholic Church. In this regard, it drew attention to the position of the United National Human Rights Committee that limitations of rights for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.
Finally, the Court reiterated the principle that freedom of expression also extended to ideas which offend, shock or disturb. Moreover, the Court found that those who choose to exercise the freedom to manifest their religion could not reasonably expect to be exempt from all criticism in a pluralistic democratic society. The Court reiterated that such people “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.” [para.81] In the present case, the Court held that the fact that approximately one hundred individuals had complained to the domestic authorities about the advertisements could not be equated with a majority of the Lithuanian population being affected (as the Government had contended). The Court opined that “even assuming that the majority of the Lithuanian population were indeed to find the advertisements offensive, the Court reiterates that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights to, inter alia, freedom of expression would become merely theoretical rather than practical and effective as required by the Convention.” [para. 82]
In light of the foregoing, the Court concluded that the domestic authorities had given absolute primacy to protecting the feelings of religious people. In doing so, the domestic authorities failed to strike a fair balance between the protection of public morals and the rights of religious people on the one hand, and the company’s right to freedom of expression on the other. Accordingly, there had been a violation of Article 10 of the Convention.
As for damages, the Lithuanian government was ordered to pay 580 EUR in respect of pecuniary damages to the company.
Judge De Gaetano’s concurring opinion
Judge De Gaetano concurred separately that there had been a violation of Article 10 of the Convention. Judge De Gaetano was careful to note that the findings of the Court were specific to the present case and should not be read as a carte blanche to use religious symbols. The judge also opined that had the advertisement been deemed inappropriate, it may have been more effective for the faithful to exercise a boycott of the company than resulting to litigation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression since the European Court of Human Rights (Court) found that the imposition of a fine against a company that had used models resembling religious figures in an advertising campaign amounted to a violation of the right to freedom of expression. This is notable because the Court gives a wide margin of appreciation to States in relation to their regulation of commercial speech and speech that allegedly offends religion. The advertisements in this case fell within both of these categories, and the Court did state that it was providing a wide margin of appreciation in this case. Nonetheless, despite the margin of appreciation, it was still willing to look behind the reasons presented by the State for why the advertisements were held to be contrary to public morals and was not prepared to accept their reasons at face value. Also of note is the Court’s strong language on the importance of protecting a minority group’s right to freedom of expression, and how such a right should not be dependent on the acceptance of the majority (such as a dominant religion).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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