Verein Gegen Tierfabriken n° 1 and n° 2 v. Switzerland 28 June 2001 and 24 October 2007 Strasbourg

KEYWORDS Animal protection Political advertising Broadcasting “Pressing social need” Fresh interference

FACTS Verein Gegen Tierfabriken is an association registered in Switzerland. The aim of the association is the protection of animals, with particular emphasis on animal experiments and industrial animal production. As a reaction to various television commercials of the meat industry, the association prepared a television commercial lasting fifty-five seconds and consisting of two scenes. The association sent a videocassette to the Commercial Television Company (Publisuisse), responsible for television advertising, whishing this film to be broadcasted.

DOMESTIC PROCEEDINGS Publisuisse informed the association that it would not broadcast the commercial because of its “strong political character”. The company pointed out that that an alternative solution would be a film showing the merits of a decent rearing of animals and informing viewers that they were free to enquire into the origin of the meat which they were buying. The association was not prepared to accept the changes in its commercial. It requested a statement of the reasons for Publisuisse decision and information to which supervisory authority an appeal could be filed. A complaint was filed with the Independent Radio and Television Appeal Board. Though, they could only deal with appeals complaining about programmes which had already been broadcast. The complaint was transmitted to the Federal Office of Communications. The Federal Office informed the associations that Publisuisse, within the framework of the broadcasting provisions, was free to purchase commercials and choose its contractual parties as it whished.

DOMESTIC PROCEEDINGS The association filed a complaint with the Federal Department of Transport, Communications and Energy, which was dismissed. The Federal Department concluded that Publisuisse could not be ordered to broadcast the commercial since the company was in competition with local, regional and foreign broadcasters, and the association was not obliged to have its commercial broadcast over the channels of the company. The applicant also filed an administrative-law appeal, which was also dismissed. The Federal Court said that Section 18 of the Federal Radio and Television Act today assumes in principle that advertising is admissible but subject to certain limitations. In respect of the application’s complaint under art 10 of the convention the Federal Court found that Section 18(5) (which prohibits political advertising) of the Federal Radio and Television Act serves various purposes: -prevent financially powerful groups from obtaining a competitive political advantage -protect the formation of public opinion from undue commercial influence -bring about a certain equality of opportunity among the different forces of society.

NATIONAL LEGISLATION General regulations on radio and television Article 55 bis of the Swiss Federal Constitution “1. Legislation on radio and television … comes within the jurisdiction of the Confederation. 2. Radio and television shall contribute to cultural development and the free expression of opinions as well as to the entertainment of the audience. They shall consider the particularities of the country and the requirements of the cantons. They shall describe fact objectively and fairly reflect the variety of views. 3. Within the framework of paragraph 2, the impartiality of radio and television as well as autonomy in the creation of programes shall be guaranteed…”

NATIONAL LEGISLATION Federal Radio and television act Regulations on television advertising Article 18 Advertising “1. Advertising shall be clearly separated from the rest of the programme and shall be clearly recognisable as such. The permanent programme staff of the broadcaster shall not participate in the broadcasting of commercials… 5. Religious and political advertising is prohibited, as is advertising for alcoholic beverages, tobacco and medicaments. To protect juveniles and the environment, the Federal Council may ban other advertisements.”

NATIONAL LEGISLATION Section 15 Prohibited advertising “The following shall be prohibited: (a)religious and political advertising; (b)advertising for alcoholic beverages and tobacco; (c)advertising for medicaments in respect of which public advertising is not authorized by medical law; (d)untrue or misleading advertising or advertising which constitutes unfair competition; (e)advertising which profits from the natural credulity of children or the lack of experience of youth or abuses their feelings of attachment; (f)Subliminal advertising…”

EUROPEAN COURT OF HUMAN RIGHTS The court had to consider: -responsibility of the respondent State -whether there was an interference with the applicant association’s right under article 10 of the Convention, and if so, whether the interference was; 1. prescribed by law 2. pursued a legitimate aim 3. necessary in a democratic society

ARGUMENTS Responsibility of the respondent state -Publisuisse was established under Swiss private law. The question was therefore, whether the refusal to broadcast the commercial fell under the respondent state’s jurisdiction. - Section 18 of the Swiss Federal Radio and Television Act was interpreted as last resort by the Federal Court that made lawful the treatment of which the applicant associations complained.

CONCLUSION When the responsibility of the respondent state was established, the Court concluded that the refusal to broadcast the applicant association's commercial amounted to an “interference by public authority”.

ARGUMENTS Could it be justified? 1. Prescribed by law - The law in question should be accessible to the person concerned and foreseeable as to its effects. - It was not a dispute whether it was accessible, but if the rules were foreseeable as to their effects. - “Political advertising” foresee to a degree that is reasonable in the circumstances. - The commercial indubitably fell outside the regular commercial context inciting the public to purchase a particular product. - The commercial reflected controversial opinions.

ARGUMENTS 2. Pursued a legitimate aim - The Court accepted the Governments argument, aimed at enabling the formation of public opinions protected from the pressure of powerful financial groups. - The measure was justified “for the protection of the…rights of others”. 3. Necessary in a democratic society - Art 10 applicable to information that offend, shock or disturb. - “Necessary” implies the existence of a “pressing social need”. - The authorities had a certain margin of appreciation, essential in commercial matters. - The margin of appreciation reduced if participation in a debate affecting the general interest. - A prohibition of political advertising which applies only to certain media, and not to others, does not appear to be of a particular pressing nature. - The applicant association had no other means than the national television Publisuisse. - The measure could not be considered necessary in a democratic society.

CONCLUSION The interference was prescribed by law and pursued a legitimate aim but could not be considered necessary in a democratic society. VIOLATION OF ARTICLE 10!

COMPARATIVE ANALYSIS Murphy v. Ireland - Prohibition of religious advertising on Irish broadcasting. - The Court accepted that the impugned provision sought to ensure respect for the religious doctrines and beliefs of others so that the aims of the prohibition were the protection of public order and safety together with the protection of the rights and freedoms of others. - A total ban on religious advertising on radio and television was a proportionate measure according to the Court. - The Irish state had demonstrated that there were "relevant and sufficient" reasons justifying the interference with the applicant's freedom of expression within the meaning of Article 10 of the Convention.

COULD THE COMMERSIAL NOW BE BROADCASTED? -A new application to Publisuisse -REFUSED! -Based on the Court judgment the association applied to the Federal Court to reopen the proceedings, review the judgment at domestic level. -Dismissed. -Association unable to show how redress was possible only to reopen the proceedings. -The Federal Court also stated that, not sufficiently shown that it still had an interest in broadcasting the commercial.

NATIONAL LEGISLATION Section 139a of the former Federal Judicature Act “Breach of the European Convention of Human Rights 1. A decision of the Federal Court or of a lower court may be reviewed if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has granted an individual application on account of a breach of the Convention of 4 November 1950 for the Protection of Human rights and Fundamental Freedoms and its Protocols, and redress is possible only through such a review…”

NATIONAL LEGISLATION Section 140 of the former Federal Judicature Act “Application for review The application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time; it must also state the nature of the amendment of the judgment and the redress being sought.”

EUROPEAN COURT OF HUMAN RIGHTS The applicant association alleged that the continued prohibition on broadcasting the television commercial, after the Court had found a violation of its freedom of expression, constituted interference infringing its freedom of expression under article 10. The Court had to consider: - Whether it was a fresh interference of article 10 of the Convention when the Federal Court refused to review its judgment, - If the interference fulfilled the requirement “necessary in a democratic society”

ARGUMENTS Fresh interference -The Conventions is intended to guarantee rights that are practical and effective. -Reference to a remedy which proves incapable of affording effective and practical redress where a Convention violation has been found will deprive applicants of their rights to have effects of the violation redressed as far as possible. -The application did barely satisfy the formal requirement in section 140 of the former Federal Judicature Act. -Nevertheless, the Federal Court had concluded that the applicant association had not sufficiently shown that it still had an interest in broadcasting the original version of the commercial.

CONCLUSION The refusal to reconsider the prohibition on broadcasting the television commercial in issue constitutes, in the Court’s view, a fresh interference by public authority with the exercise of rights protected by art 10 § 1.

ARGUMENTS Necessary in a democratic society -In its previous judgment of 28 June 2001 it had held that the interference had been “prescribed by law” and had also pursued a legitimate aim of “protection of the rights of others”. The Court did not consider it necessary to determine those factors again. -The approach from the Federal Court was overly formalistic when applying section 140 of the former Federal Judicature Act. -Not sufficiently shown an interest in broadcasting the original version, though the Federal Court failed to give its explanation on how the public debate had changed, since 1994, when the commercial was initially intended to broadcast.

CONCLUSION The Court is not satisfied that the Federal Court applied domestic law in conformity with the principles embodied in article 10 of the Convention. That being so, the reasons given by the Swiss Federal Court, having regard to the case as a whole and to the interest of a democratic society in ensuring and maintaining freedom of expression in matters of indisputable public interest, were not “relevant and sufficient” to justify the interference in issue. VIOLATION OF ARTICLE 10, AGAIN!

DISSENTING OPINION -The convention does not require the State Parties to institute procedures for the fresh examination of a case following a finding of a violation by the Court. -The reopening of the proceedings in the Federal Court is merely a subsidiary means of redress, irrespective of the outcome of that procedure. An unfavorable outcome for the applicant cannot be regarded as any less compatible with the Convention then the absence of such a procedure. -Could not see how the Federal Court has violated article 10 through a somewhat formalistic interpretation of the Swiss law. -The courts are bound not to repeat the violation already found. -Reopening the proceedings is not an ideal means of reparation.

SUMMARY -The Court found, in both of the two cases, a violation of article 10 of the Convention. Verein Gegen Tierfabriken nr 1 -Necessary implies the existence of a pressing social need. The authorities have a certain margin of appreciation, but it can be reduced if there is an ongoing debate in the public interest. -The applicant association had no other means than the national television programmes of Publisuisse at its disposal. These programmes were the only ones broadcast throughout Switzerland. Verein Gegen Tierfabriken nr 2 -The Conventions is intended to guarantee rights that are practical and effective. -A remedy which proves incapable of affording effective and practical redress where a Convention violation has been found will deprive applicants of their rights to have effects of the violation redressed as far as possible.

PERSONAL COMMENTS Problematic to define “political” e.g. environment

QUESTIONS? By Karin Carlsson and Samira Khan