Content Regulation / Censorship, Artistic Expression
Alestra v. Mexican Institute of Industrial Property
Closed Mixed Outcome
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The European Court of Human Rights upheld a film board’s refusal to issue a classification certificate to a film accused of blasphemy and found no violation of the right to freedom of expression. British film director Nigel Wingrove directed “Visions of Ecstasy”, a short film derived from the life and writings of St. Teresa of Avila. The British Board of Film Classification refused to certify the film for violating the criminal law of blasphemy by depicting the wounded body of the crucified Christ as a participant in the erotic desire of St. Teresa. The Court reasoned that the interference was properly prescribed by law and pursued a legitimate aim of protecting the Christian faith from blasphemous expressions. It also ruled that the interference was necessary in a democratic society within the meaning of Article 10 of the European Convention on Human Rights, mainly because the criminal law of blasphemy contained sufficient safeguards against arbitrary interference with one’s right to freedom of expression.
British director Nigel Wingrove wrote script for and directed a film titled “Visions of Ecstasy.” The short film was derived from the writings and life of St. Teresa of Avila, the sixteenth-century Carmelite nun. A segment of the film featured the wounded body of Christ lying on the ground where St. Teresa first kisses the stigmata of his feet before moving up his body and kissing or licking the gaping wound in his right side of body. Then, she sits alongside of Christ, seemingly naked under her habit, all the while moving in a motion reflecting intense erotic arousal and kisses his lips.
Upon completion, Wingrove submitted the film to the British Board of Film Classification for issuance of a classification certificate pursuant to section 4(1) of the Video Recordings Act 1984. On September 18, 1989, the Board denied his application, finding that the content of the video was in violation of the criminal law of blasphemy defined partly as “any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible.” The Board said: “It is not blasphemous to speak or publish opinions hostile to the Christian religion if the publication is decent and temperate.” As to Wingrove’s video, it noted that content of the video gave rise to “outrage at the unacceptable treatment of a sacred subject because the wounded body of the crucified Christ was presented as a participant in the erotic desire of St. Teresa, with no attempt to explore the meaning of the imagery beyond engaging the viewer in an erotic experience. In other words, the video was blasphemous because its sexual imagery focused on the figure of the crucified Christ.
In December 1989, Wingrove then appealed the decision to the Video Appeals Committee, which upheld the Board’s refusal. The Committee concluded that the overall content of the video was indecent and that the depiction of Christ as a participant in erotic desire of St. Teresa “would outrage the feelings of Christians.”
On March 1, 1995, the European Commission on Human Rights referred the case to the European Court of Human Rights to decide whether the United Kingdom violated the Wingrove’s right to freedom of expression under Article 10 of the European Convention on Human Rights.
The main issue before the European Court of Human Rights was whether the refusal to issue a classification certificate for Wingrove’s film was justified under Article 10 of the European Convention on Human Rights, under which restrictions must be “prescribed by law and  necessary in a democratic society.”
Wingrove argued that in light of the law on blasphemy, it was “inordinately difficult” to know whether the content of film would be considered blasphemous and because of the uncertainty of the law, he could not possibly foresee that the film would be denied by the Board. The British government, on the other hand, contended uncertainty about the law does not necessarily makes the law inaccessible or unforeseeable. The Court reiterated its jurisprudence that national laws “must be formulated with sufficient precision to enable those concerned . . . to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” and the discretionary power conferred by the laws must be sufficiently clear and adequately protect from arbitrary interference. [para. 40] In this case, the Court first acknowledged that “the offen[s]e of blasphemy cannot by its very nature lend itself to precise legal definition” but at same time, there is no general uncertainty or disagreement as its definition under the English law. As such, the Court concluded that Wingrove could reasonably foresee that the content of his film could fall within the scope of the blasphemy offense.
As to whether the Board’s act of refusal pursued a legitimate aim, Wingrove argued that the aim of protecting the right of citizens not to be offended in their religious feelings “does not include a hypothetical right held by some Christians to avoid disturbance at the prospect of other people’s viewing the video work without being shocked.” The government referred to the case of Otto-Preminger-Institut v. Austria, Series A no. 295-A (1994) where the Court affirmed that the “respect for the religious feelings of believers can move a State legitimately to restrict the publication of provocative portrayals of objects of religious veneration.” [paras. 47-48] The Court agreed with the government and held that the Board’s concern over protecting against treatment of a religious subject corresponds to the protection of “the rights of others” under paragraph 2 of Article 10.
Lastly, the Court determined whether the interference was “necessary in a democratic society” within the meaning of Article 10, which requires “assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a “pressing social need” and whether it was “proportionate to the legitimate aim pursued.” [para. 53] Wingrove contended that there was no pressing social need because of the uncertain assumption that the video would be blasphemous and that in any event, its content contained “no obscenity, no pornography and no element of vilification of Christ was disproportionate to the aim pursued.” On the other hand, the government contended that the video work was provocative and amounted to an attack on religious beliefs of Christians. Therefore, the refusal to issue a classification certificate was pursuant to a pressing social need and proportionate to the legitimate aim of protecting religious beliefs from blasphemous expressions. The Court was of the opinion that while there have been strong arguments in favor of abolishing blasphemy laws within the European countries, there is not sufficient common ground to conclude that restrictions imposed on blasphemous materials are unnecessary in a democratic society.
Furthermore, the Court determined whether the criminal blasphemy law of Britain contained sufficient safeguards against arbitrary restriction on the right to freedom of expression. It found that the law does not prohibit any form of expression perceived to be offensive or hostile towards the Christian religion; “it is the manner in which views are advocated rather than the views themselves which the law seeks to control.” The Court also found that the extend of the insult must be significant to fall within the scope of the offense and therefore, the high degree of “profanation that must be attained constitutes, in itself, a safeguard against arbitrariness.” [para. 60] In addition, it held that the competent authorities of Britain are in better position than the Court to assess the likely impact of the video on viewers and whether its content would amount to the criminal act of blasphemy. [para. 64]
Based on the foregoing analysis, the Court found no violation of Article 10 of the Convention with respect to the Board’s refusal to issue a classification certificate.
The dissenting Judge De Meyer, however, categorized the case as a prior restraint on freedom of expression in violation of Article 10 of the Convention. Judge Lohmus also wrote a separate dissenting opinion, arguing that because the aim of the criminal law of blasphemy was only to protect the Christian religious belief, there remains a question of whether the interference could be interpreted as necessary in a democratic society.
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