Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Expands Expression
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In this case, the Constitutional Court of the Republic of Serbia found that the provisions of Law on Public Information were unconstitutional since they discriminated against foreign legal entities and imposed high penalties that consequently led to censorship. Therefore, these provision were in contradiction with freedom of media protected under Article 50 of the Constitution as well as under Article 10 and 14 of the European Convention on Human Rights (ECHR).
The amendments of the Serbian Law on Public Information (Official Gazette RS, no. 43/03, 61/05) from 2009, were challenged in front of the Constitutional Court of Serbia. The challenged provisions were Articles 1.para. 1–2 and 4–7. The Court found that articles 1, para. 1 (in its’ part), 2 (para 5, 6, 7 of added article 14.a.) and 4–6 were unconstitutional; the other claims were dismissed.
The Article 1.1 added to a new paragraph to Article 14 prescribing that “public media can be established by the domestic legal entity.”
Article 2 also added to Article 14.a, stating that: “[I]n a case that prohibition prescribed in the paragraph 3 of this Article [(paragraph 3 stated that in a case that public media ceased to exist it is not allowed to establish the new one with a same or similar name that can create confusion)] was breached as well in the case of issuing public media that was not registered within the registry of public media, competent public prosecutor is obliged to initiate, without any further delay, procedure for economic offense in front of competent court and ask for the measure of temporary suspension of activity of publishing of public media,” (para.5). Additionally, the provision held “that the court will within 12 hours of submission of this proposal, in accordance with the law, declare the measure of suspension to the founder of public media which will be effective until final ending of this court proceeding,” (para.6) and “that in this procedure for imposing the measure from the para. 6 the provisions of [A]rticle 24 of this law are applied,” (para.7).
As for the Articles 4, 5 and 6, changes in the provisions of the law were made by (1) introducing significantly higher amounts of sanctions for the violation of the provision of this law; (2) introducing as a sanctions some new measures such as a measure of temporary suspension of publishing public media; (3) determining of the amount of sanction in percentage of the scope of printed publications; and (4) defining the provisions related to the presumption of innocence and protection of minors as an economic offense.
As for the rest of the provisions challenged within the initiative the Court dismissed application.
In July 2010, the Constitutional Court decided that articles 1. para. 1 (in its’ part), 2. (para 5, 6, 7 of added article 14.a.) and 4–6 were unconstitutional. As for the rest of the claims, the Court dismissed them.
With regards to Article 1.1, the Court established that this provision is not in accordance with Article 50 of the Constitutions that prescribes freedom of media and states that “everybody is free to establish newspapers and other means of public media in accordance with the law and without any approval.” Limitation to establish public media only by domestic legal entities is not in accordance with the provision of freedom of media stated in the Constitution that grant this right to “everybody”. Thus, this formulation of amendments narrows the scope of this right with regard to the previous provision stipulated within this law. Also, there are no legitimate reasons nor is it necessary in democratic society to justify this kind of limitation (in accordance with Articles 18 and 20 of the Constitutions). In its opinion, the Court reference Article 10 and 14 of ECHR and Article 19 of ICCPR, stating that this provision violated the rights found within these articles.
As for the provisions of Article 2, the Court decided they were unconstitutional in part of added Article 14.a, para. 5–7, since these provisions are in contradiction with the Constitutional principle of (1) legal order unity (Article 4, para. 2 and 4); (2) the principle of independence of judiciary authority (Article 142.2.); and (3) the principle of independence of public prosecutors (Article 156.1). By prescribing an automatic obligation of the public prosecutor to initiate proceedings for an economic offense is in contradiction with the position of the public prosecutor established in the Constitution as an independent body. Also, the automatic obligation of a court to impose this measure is in violation of the principle of division of powers and independence of the courts warranted by the Constitution.
Furthermore, the very stipulation of a new measure of temporary suspension of publishing of public media as an economic offense is a violation of the principle of unity of legal order. This is because the law on legal offenses as a general and systemic law for this area do not recognize this kind of measure and certainly not under the conditions stipulated in the amendments. Finally, imposition of this measure just because the public media breached the obligation to register during its establishment make this procedure a necessary prerequisite for establishment, which is in contradiction with Article 50 of the Constitution that prescribes freedom of media in manner that no approval is needed for establishment, and consequently Article 10 of ECHR and Article 19 of ICCPR.
As for the Articles 4, 5 and 6 of the amendments of the law, which defined economic offenses and penalties, the Court declared them as unconstitutional since they violated the principle of unity of legal order and freedom of media. The law on economic offenses as a general law in this area determine the minimum and maximum amount of the penalty for the offenses. Given that amendments of the law made penalties for offenses from the law much higher than the maximum limit from the law on economic offenses, this provision is in contradiction with the principle of unity of legal order (Article 4 of the Constitutions). The Court emphasized that even if the situation was that the amounts of penalties are within the prescribed maximum limit, they would still breach the right to freedom of media, since the penalties are too high when compared to other more serious offenses.
In regard to defining the violation of presumption of innocence and protection of minors as an economic offense, the Court stated that these provisions cannot be considered as a violation of financial or business activity, as it is required by the law of economic offenses. Also the Court noted that earlier these provisions were defined as misdemeanors and not as an economic offenses. Moreover, defining penalty in fixed amount instead of setting minimum and maximum limits where the court can estimate appropriate final amount in accordance with facts of the each particular case, is depriving the courts of their right to independently make decisions by applying the law. Within its decision, the Court referenced European Court of Human Rights (ECtHR) case law with regard to Article 10 (in relation to the limitation that can be imposed only in accordance with conditions from para 2. of Article 10), that too high penalties (especially criminal) could have chilling effect and proportionality of the sanctions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision of the Constitutional Court of Serbia emphasizes the long lasting position that the freedom of expression has to be respected with regard to freedom of establishment of media and that the state cannot interfere with exercising this right (unless there are exceptional circumstances). Also, the penalties haveto be proportionate and in accordance with a legitimate aim since high penalties can often deter people and media from freely expressing their opinion or establishing of media.
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.
The general rule is that decisions of the Constitutional Court have immediate effect from the moment they are published in the Official Gazette and from that moment the unconstitutional provisions of the law are void.
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