Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights held that Switzerland had violated an organization’s right to freedom of expression by failing to ensure a commercial on animal protection was aired on television. The case has previously come before the Court, which had held that there was a violation of the right as the refusal to air the commercial was not “necessary in a democratic society”. After the organization was still unable to air the commercial, it approached the domestic courts, seeking a reopening of the proceedings to ensure compliance with the Court’s order. The Court held that Switzerland had failed to fulfill its positive obligations to deploy available resources to allow the broadcast of the television commercial.

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Facts

On January 24, 1994, the Swiss Commercial Television Company (AG für das Werbefernsehen), the company responsible for television advertising in the country, denied a request from “Verein Gegen Tierfabriken Schweiz” (VgT), an animal-protection association, to broadcast a television commercial on battery farming and animal cruelty against pigs. VgT approached the Federal Court, which denied their claim on August 20, 1997. The Court held that section 18(5) of the Federal Radio and Television Act prohibited political advertising as a means to “…prevent financially powerful groups from obtaining a competitive political advantage, to protect the formation of public opinion from undue commercial influence, to bring about a certain equality of opportunity among the different forces of society, and to contribute towards the independence of radio and television broadcasters in editorial matters” [para.14].

On July 13, 1994, VgT filed a complaint with the European Commission of Human Rights arguing that their rights under Article 10 of the Convention had been infringed. The case was then referred to the European Court of Human Rights (ECtHR).

Article 10(1) states “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”. Subsection (2) addresses permissible limitations of the right, and states that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

On June 28, 2001, the ECtHR held that by refusing to broadcast the commercial the Swiss Government had violated Article 10. The Court held that, although the refusal was prescribed by law and pursued a legitimate aim, the Government had failed to demonstrate how restricting the right to freedom of expression was necessary in a democratic society. It stressed that VgT was not a powerful financial group and did not intend to hinder the broadcaster’s independence or influence public opinion.

On October 31, 2001, VgT submitted another request to Publisuisse SA – the new name for The Commercial Television Company – asking for permission to broadcast the television commercial, now featuring a comment outlining the Government’s refusal to broadcast the commercial and the ECtHR’s decision finding a violation of Article 10. This request was denied on November 30, 2001. On December 1, 2001, VgT filed a petition for review to the Federal Court asking it to revise the final judgment of August 20, 1997 considering the ECtHR’s findings in its 2001 decision. The Federal Court dismissed the request on April 29, 2002, holding that VgT failed to explain how reopening the proceeding could be a way to obtain redress, and that VgT had not demonstrated its interest in broadcasting an outdated commercial eight years after its banning. The Court found that challenging the Publisuisse SA’s second refusal should have been submitted as a separate matter.

On March 3, 2003, the Federal Office of Communication dismissed VgT’s appeal against the Federal Court’s dismissal of their application. Having exhausted domestic remedies, VgT approached the Committee of Ministers of the Council of Europe – the body responsible for overseeing the execution of the Court’s decisions. VgT did not inform the Committee of Ministers about the Federal Court’s refusal to reopen the proceeding. On July 22, 2003, the Committee of Ministers issued Resolution ResDH (2003)125 declaring, among others, that Switzerland fulfilled its obligations under Article 46(1) of the Convention concerning the execution of the ECtHR’s judgment.

On December 12, 2003, VgT notified the Council of Europe’s Directorate General of Human Rights about the Federal Court’s refusal to reopen domestic proceedings after the ECtHR’s 2001 judgment finding Switzerland responsible for violating Article 10. On January 12, 2005, the Directorate General advised VgT not to reopen the proceeding since the Federal Court had examined the case in July 2002.

VgT approached the ECtHR again and on October 4, 2007, a Chamber of the Court issued a judgment holding Switzerland responsible for violating Article 10. Switzerland then requested the case be referred to the Grand Chamber.

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Decision Overview

The Court delivered a majority judgment of eleven to six. The central issue for the Court’s determination was whether the Swiss authorities had an obligation to ensure the broadcast of the commercial, following the June 2001 judgment holding that the government had infringed Article 10.

VgT argued that refusing to broadcast the television commercial after the Court’s found the refusal incompatible with Article 10 of the Convention amounted to a new violation of its right to freedom of expression. The organization submitted that it fell outside the purview of the Swiss authorities to determine whether the television commercial was out-of-date or not and so the Federal Court’s decision of March 3, 2003 showed the Government’s lack of respect for VgT’s freedom of expression.

The Government maintained that any interference with VgT’s freedom of expression was permissible under Article 10. It provided three requirements that would make forcing Publisuisse SA to broadcast the television commercial possible: if “(1) the commercial did not infringe the prohibition of ‘political advertising’ as interpreted following the Court’s initial judgment; (2) the commercial did not breach other rules on broadcasting (for example, on unfair or misleading advertising); (3) Publisuisse SA had no latitude to reject the commercial, even if it could rely on such fundamental rights as contractual and/or economic freedom” [para. 73]. The Government highlighted that in the Court’s first judgment the radio and audiovisuals sectors were limited to Swiss Radio and the Television Company but competition in Switzerland has been encouraged since then and so VgT had other means to broadcast its commercial.

The Court stated that it would assess whether there was a “positive obligation on the respondent State to take the necessary measures to allow the television commercial to be broadcast” [para. 78]. With reference to the cases of Özgür Gündem v. Turkey, App. No. 23144/93 and Fuentes Bobo v. Spain, App. No. 39293/98, the Court stressed that “[g]enuine, ‘effective’ exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures” [para. 80]. It added that determining whether such a positive obligation existed required the Court to balance the interests of the public and of the individual – but that this same balance must be struck when a state has a negative obligation to not interfere with the right.

The Court emphasized that under Article 46 of the Convention, “a respondent State found to have breached the Convention or its Protocols is under an obligation to abide by the Court’s decisions in any case to which it is a party” [para. 85]. It held that the reopening of proceedings can serve to ensure the execution of judgments and the addressing of the violation of the Convention.

The Court reaffirmed that in accordance with Article 10(2) of the Convention “…there is little scope (…) for restrictions on political speech or, as in this case, on debate of questions of public interest” [para. 92]. It held that the subject matter of the commercial was in the public interest, and emphasized that, despite the earlier Court judgment finding that a refusal to broadcast the commercial infringed the Convention, the commercial was never aired. The Court emphasized, with reference to Sunday Times v. United Kingdom (No 2) and Dammann v. Switzerland App. No. 77551/01, that “prior restraints on publication entail such dangers that they call for the most careful scrutiny” [para. 93]. The Court also noted that the nature of the commercial being unpleasant was irrelevant: “freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb” [para. 96]. It added that this is the “demands of pluralism, tolerance and broadmindedness without which there is no “’democratic society’” [para. 96].

The Court agreed with the lower chamber’s finding, noting that the Swiss Federal Court’s refusal to reopen the proceedings was “overly formalistic”, and holding that the Swiss courts had not provided any justification for holding that the Court’s earlier decision was no longer valid or relevant [para. 94]. The Court rejected the Government’s argument that VgT had alternative avenues through which to broadcast their commercial, commenting that this impermissibly shifts the responsibility of complying with the June 2001 order of the Court to private institutions.

Accordingly, the Court held that there had been a violation of Article 10 as the Swiss government had failed to comply with their positive obligation under the Article. The Court awarded VgT EUR 4 000 for costs and expenses.

Judge Malinverni, joinged by Judges Bîrsan, Myjer and Berro-Lefèvre agreed with the majority on most counts except the Court’s competence to oversee the execution of its own decisions and the State party’s obligation to review internal proceedings after a Court’s decision: they would have found that only the Committee of Ministers has jurisdiction to supervise the implementation of the Court’s judgments. Thus, the Judges would have held that present case was decided by the Committee of Ministers at the final instance following the Resolution ResDH (2003)125 of 22 July 2003, and so the Court exceeded its purview by examining the present case. Judge Malinverni indicated that “[t]he Court’s finding of a violation does not confer on the applicant the automatic right to have the domestic judgment reviewed and to obtain a new decision in his or her favor”, and that States are allowed to decide how to implement a Court’s decision after a violation of the Convention has been found [para.24].

Judge Sajó, in his dissenting opinion, would have held that by amending the television commercial (adding a comment criticizing the Swiss authorities and publicizing the violation of freedom of expression found by the Court) VgT changed the nature of the television commercial at issue and so the case brought before the Court was different from that of June 28, 2001. Judge Sajó would also have found that forcing Publisuisse SA to broadcast a television commercial would restrict the company’s right to property.

Judge Power also would have found that the present case was inadmissible for a failure to exhaust domestic remedies with regards to the amended version of the television commercial.

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