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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Murphy v. Independent Radio and Television Commission [1997] IEHC 71; [1999] 1 IR 12; [1997] 2 ILRM 467 (25th April, 1997)
Cite as: [1997] 2 ILRM 467, [1999] 1 IR 12, [1997] IEHC 71

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Murphy v. Independent Radio and Television Commission [1997] IEHC 71; [1999] 1 IR 12; [1997] 2 ILRM 467 (25th April, 1997)

1995 No. 317 J.R.

Judgment of Mr. Justice Geoghegan delivered the 25th day of April, 1997

1. This is an application for Judicial Review of a decision of the first named Respondent dated the 31st day of March, 1995 refusing to permit the Applicant to transmit a particular advertisement on the radio station known as "98 FM". I should state at the outset that the owners of "98 FM" had no objection to broadcasting the advertisement if they were satisfied that they were lawfully entitled to do so but they were informed by the first named Respondent, being the relevant statutory authority, that they were prohibited from doing so by virtue of Section 10(3) of the Radio and Television Act, 1988. That subsection provides that:-

"No advertisement shall be broadcast which is directed towards any religious or political end or which has relation to an industrial dispute".

2. The advertisement in question read as follows:-

"What think ye of Christ? Would you, like Peter, boldly say he is the Son of the living God, have you ever exposed yourself to the historical facts about Christ, the Irish Faith Centre are presenting for Easter Week an hour long video by Dr. Gene Scott, PhD on the evidence for the resurrection from Monday, 10th to Saturday, 15th April every night at 8.30 and Easter Sunday at 11.30 a.m. and also live by satellite at 7.30 p.m., The Irish Faith Centre, 360A North Circular Road, Phibsboro".

3. The Applicant seeks to impugn the refusal to broadcast this advertisement on the grounds:-

(1) that it does not breach Section 10(3) of the 1988 Act;
(2) that if contrary to the Applicant's contention it does breach that subsection, then the subsection is invalid having regard to the Constitution.

4. Although Counsel for the Applicant relies on both arguments, I think it is fair to say, that the greatest stress was on the second. In support of the first argument Counsel for the Applicant suggests that the advertisement is in essence an advertisement for a showing of a video and the showing of a live communication by satellite and that it is not directly an advertisement for some religious belief or doctrine. On any fair reading of this advertisement, I think that one would have to interpret it as being more than a mere notification of an event. The question, therefore, of whether notification of a religious event necessarily infringes Section 10(3) of the Radio and Television Act, 1988 does not arise in this case and that being so I do not think it would be advisable or proper for me to make any decision on it. What I am deciding is that this particular advertisement does infringe Section 10(3) or at the very least that the first named Respondent was entitled to take the view that it did. The advertisers are called in the advertisement "The Irish Faith Centre". It is perfectly obvious from the whole tenor of the advertisement that the listener is being led to at least favourably consider the proposition that Christ is the Son of the living God and that the traditional "beliefs" about Christ are historical facts. In my opinion, the advertisement is a great deal more than a mere notification of an event. Given that Section 10(3) itself has a broad thrust, I think that the advertisement would clearly infringe the subsection.

5. I turn, therefore, to consider whether the subsection is unconstitutional. Four different provisions of the constitution are relied on by the Applicant. These are:-

(1) Article 40(3)(1) as conferring the unenumerated right to communicate as identified by Costello P. in Attorney General -v- Paper Link Limited 1984 ILRM 373.
(2) Article 40(6)(1) which confers "the right of the citizens to express freely their convictions and opinions".
(3) Article 44(2)(1) which guarantees freedom of conscience and the free profession and practice of religion to every citizen subject to public order and morality.
(4) Article 44(2)(3) which prohibits the imposition by the State of any disabilities or the making of any discrimination on the ground of religious profession, belief or status.

6. I propose to deal with the Article 44 arguments first as they present less difficulty than the arguments based on Article 40. In my view, Section 10(3) of the 1988 Act in no way impedes freedom of conscience or the free profession or practice of religion. As Counsel for the Attorney General has pointed out, the true meaning of Article 44(2)(1) has been explained by Walsh J. in McGee -v- Attorney General 1974 IR 284 at 316, Walsh J. observed as follows:-

"The whole context in which the question of conscience appears in Article 44 is one dealing with the exercise of religion and the free profession and practice of religion. Within that context, the meaning of Section 2, subsection 1 of Article 44 is that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience insofar as the practice of religion is concerned, and subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience.....what the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one's conscience insofar as the exercise, practice or profession of religion is concerned".

7. The prohibition on this advertisement is not an attack on freedom of conscience or the free practice of religion. Indeed if anything the advertisement might be an intrusion on the quiet possession of religious beliefs.

8. Nor does it appear to me that the refusal of such an advertisement as this could constitute a discrimination on the ground of religious profession, belief or status as prohibited by Article 44(2)(3). The meaning of this constitutional provision has also been elaborated on by Walsh J. in Quinn Supermarket -v- Attorney General 1972 I.R. 1. He explains that what is prohibited by the provision is the creation of a difference between persons or bodies or the distinguishing between them on the grounds of religious profession, belief or status. An advertisement of this kind would have been prohibited no matter what religion was involved and there is therefore no question of religious discrimination. I am satisfied that insofar as the Applicant relies on Article 44 to impugn the validity of Section 10(3) of the 1988 Act having regard to the Constitution, the application must fail.

9. I now turn to the much more difficult question of whether either of the provisions relied on in Article 40 by the Applicant gives him the right to have his advertisement broadcast and that that being so the subsection in the 1988 Act is repugnant to the Constitution. I think it appropriate to deal with the arguments based on Article 40(3)(1) and the arguments based on Article 40(6)(1) together. I do this because I do not accept that the two constitutional provisions are totally independent of one another. In some of the arguments put forward in this Court it seemed to be suggested that as a consequence of Attorney General -v- Paper Link Limited 1984 ILRM 373 the right to communicate factual matters arose from Article 40(3)(1) but that the right to communicate convictions and opinions arose from Article 40(6)(1). If this analysis was correct, it would seem to give rise to an anomaly. I cannot see any rational basis why the Constitution would confer an express right to communicate opinions but an implied or unenumerated right to communicate information. The key passage in Costello P's. judgment in the Paper Link case does not appear to me to support the view that there are two distinct rights of communication conferred by different provisions of the Constitution. The passage in question reads as follows at p.381:-

"It seems to me that as the act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The question of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40(6)(1)(i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions, I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen's right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40(3)(1)".

10. I think that in that passage Costello P. was regarding Article 40(6)(1)(i) as not conferring a new right but rather giving special protection to a particular form of exercise of the right conferred by Article 40(3)(1). At any rate it would seem to me that the wording of Article 40(6)(1). supports that interpretation independently of any authority and I will return to it later on in this judgment.

11. It seems clear from his judgment in Oblique Financial Services Limited -v- The Promise Production Company Limited 1994 1 I.L.R.M. 74 that Keane J. takes a similar view. He stated as follows:-

"Article 40(6)(1) is concerned not with the dissemination of factual information, but the rights of the citizens, in formulating or publishing convictions or opinions, or conveying an opinion; and the rights of all citizens, including conveying information, arises in our law, not under Article 40(6)(1) but from Article 40(3)(1)."

12. The use of the words "including conveying information" would seem to suggest that Keane J. considered, as I do, that Article 40(3)(1) was the constitutional source of the basic right to communicate whether it be information or opinion.

13. I return briefly to Article 40(6)(1)(i). I have come to the conclusion that that particular provision has no relevance to this case. I have come to that view for two quite distinct reasons. In the first place the proposed advertisement although it does implicitly contain matters of opinion has as its principal purpose the communication of information. But secondly and perhaps more importantly Article 40(6)(1)(i) would not seem to apply to every expression of opinion. Article 40(6)(1)(i) would not seem to have any application to the right of a private citizen to express private opinions with a view to influencing some other private person or persons. It would not be advisable to attempt a precise definition of what the paragraph does cover but I think that it is mainly directed at protecting the expression of opinions whether deriving from groups or otherwise with a view to influencing public opinion. Paragraphs (i), (ii) and (iii) in Article 40(6)(1) would each seem on a superficial view to be dealing with completely different matters and it might be suggested that there was no logic in including them all in the same subsection. But I think that the framers of the Constitution quite deliberately inserted them in the same subsection and that being so it would be wrong to interpret paragraph (i) except in the context of the entire subsection of the article which reads as follows:-

"1. The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-
(i) The right of the citizens to express freely their convictions and opinions .
The education of public opinion being, however a matter of such grave importance to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their right for liberty of expression, including criticism of government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, vicious, or indecent matter is an offence which shall be punishable in accordance with law.
(ii) The right of the citizens to assemble peacefully and without arms.
Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or a nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.
(iii) The right of citizens to form associations and unions.
Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.
2. Laws regulating the manner in which the right of forming associations and unions and the right of free assembly may be exercised shall contain no political, religious or class discrimination."

14. The following points of importance need to be considered in interpreting Section 6 of

Article 40:-
(1) The Section does not create any new rights but rather assumes their existence. In the case of the right of the citizens to express freely their convictions and opinions this is merely an aspect of the unenumerated personal right to communicate contained in Article 40(3)(1). Section 6 contains special provisions for the guarantee by the State of the exercise of the particularised rights set out in it.
(2) The use of the word "citizens" within each of the paragraphs contained in Article 40(6)(1) is, in my opinion, no accident. The Article does not speak of the right of the citizen to express his or her convictions and opinions but rather the right of the citizens to express freely their convictions and opinions. The two other rights referred to in Paragraph (1) are both rights which of their nature involved plurality, one being a right of the citizens to assemble and the other being a right of the citizens to form associations and unions.
(3) When dealing with the right of the citizens to express freely their convictions and opinions the constitutional provision expressly refers to "the education of public opinion".

15. For all these reasons, I conclude that the aspect of the fundamental right to communicate arising under Article 40(3)(1) which is referred to in Article 40(6)(1)(i) is the influencing of public opinion. An advertisement on radio whether it be directed towards the purchase of a soap powder or towards the attendance of a meeting is addressed to the individual listener rather than directed towards influencing public opinion. I do accept that a political advertisement might have to be regarded differently. Arguably, it is designed to influence both public opinion in general and the individual voter. But this case does not concern a political advertisement but rather an alleged religious advertisement. It was intended, in my view, to be addressed to the individual listener and if I am right in my foregoing analysis, I do not think, therefore, that Article 40(6)(1)(i) has any bearing on the issues in dispute in this case.

16. I now return, therefore, to Article 40(3)(1). It is established in all the relevant decided cases that the personal rights protected by this Section and paragraph are not absolute and that their exercise may be regulated in the common good. Before developing this theme further, I should make clear that I reject the State's argument that because of limitation of air waves and other reasons there can be no constitutional right to broadcast and that broadcasting has to be viewed in some special category apart from all other means of communication. That does not seem to be the view of the European Court of Human Rights and in this era of multi-station broadcasting and the further increase projected with the advent of digital broadcasting, there is no reason why broadcasting as such should be isolated in Irish law and placed in a special category. I would prefer an approach which recognised that broadcasting like any other means of communication must be taken into account in considering any particular exercise of the fundamental right to communicate protected by the Constitution.

17. Although the European Convention of Human Rights is not part of Irish municipal law, regard can and should be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right. In this case the solution lies, in my view, in Article 10 of the European Convention. What would be considered to be reasonable limitations under that Article should equally, be considered reasonable limitations under Article 40(3) of the Constitution. The recent Report of the Constitution Review Group recommends amendment of the Constitution so as to conform with Article 10 of the European Convention on Human Rights. But I do not think that there is a serious clash between the Constitution and the Convention in this particular respect. I think that the rights protected by Article 10 of the Convention are for the most point protected by Article 40(3)(1) of the Constitution and that the limitations on the exercise of those rights in the interest of the common good largely correspond to the limitations expressly permitted by Article 10 of the Convention.

18. Article 10 of the European Convention of Human Rights states:-

"(1) 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.
(2) 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 interest 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 of rights of others, by preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

In Attorney General -v- Guardian Newspapers Limited (No.2) 1991 A.C. 109 at 283-284, Lord Goff of Chieveley observed that in the field of freedom of speech there was no inconsistency between the English Common Law and Article 10 of the Convention. Agreement with this view was expressed by Lord Keith of Kinkel in Derbyshire County Council -v- Towns Newspapers Limited 1993 AC 534 at 551. These statements were referred to in the judgments of Kennedy L.J. and McCullough J. of the Divisional Court in Regina -v- Radio Authority , Ex Parte Bull, 1995 3 W.L.R. 572 but McCullough J. went on to point out that while the common law right and the Article 10 right might coincide this only had relevance in the interpretation of an English statute if there was an ambiguity in that statute. I see no reason why the views of the Law Lords should not be adopted and I, therefore, accept that there is no inconsistency between the Irish Common Law and Article 10. But if that is so, it would seem to me all the more obvious that generally speaking there is no inconsistency between the Constitution and Article 10. An Irish statutory provision which offended Article 10 would be unconstitutional in most if not in all circumstances.

19. In the context of broadcasting, the decision of the European Court of Human Rights which is most relevant in this case is the decision in Informationsverein Lentia -v- Austria 17 EHRR 93. In that case, the applicants had been refused broadcasting licences by the competent national authority to set up both radio and television stations in Austria on the basis of national legislation which had set up a public monopoly. They complained of a violation of their freedom of expression as guaranteed by Article 10 of the Convention. The Court held unanimously that there had been a violation of Article 10. It is not necessary to review all the facts of that case which had very little bearing on the facts of this case but two important passages in the judgment which are contained in paragraphs 32 and 35 respectively of the reported case are highly relevant to this case. They respectively read as follows:-

"32. As the Court has already held, the purpose of that provision is to make it clear that States are permitted to regulate by a licensing system the way in which broadcasting is organised in their territories particularly in its technical aspects. Technical aspects are undeniably important, but the grant or refusal of a licence may also be made conditional on other considerations, including such matters as the nature and objectives of a proposed station, its potential audience at national, regional or local level, the rights and needs of a specific audience and the obligations deriving from international legal instruments.

This may lead to interferences whose aims will be legitimate under the third sentence of paragraph 1, even though they do not correspond to any of the aims set out in paragraph 2. The compatibility of such interferences with the Convention must nevertheless be assessed in the light of the other requirements of paragraph 2."

"35. The Contracting States enjoy a margin of appreciation in assessing the need for an interference, but this margin goes hand in hand with European supervision, whose extent will vary according to the circumstances. In cases such as the present one, where there has been an interference with the exercise of the rights and freedoms guaranteed in Article 10(1), the supervision must be strict because of the importance - frequently stressed by the Court - of the rights in question. The necessity for any restriction must be convincingly established."

20. A restriction on religious advertising complained of in this case would not seem to fit easily within the exceptions permitted by paragraph 2 of Article 10. It is conceivable that if actual evidence had been called or put on affidavit to the effect that having regard perhaps to the problems in Northern Ireland or for some other reason the State could have proved that such a prohibition was necessary though I rather doubt it. Admittedly, it has been submitted on behalf of the Attorney General that religious advertising would constitute an interference with the right to practise one's religion and that therefore the restriction was necessary "for the protection of the -- rights of others". But no evidence was adduced in support of this submission.

21. It is clear, however, from paragraph 32 cited above that the licensing system of broadcasting can involve restrictions which go beyond those permitted by paragraph 2. Indeed McCullough J. in Regina -v- Radio Authority Ex Parte Bull cited above expressly refers to Paragraph 32 in the judgment of the Court of Human Rights. At p.591 of the Report he observes as follows:-

"I confess that, in any event, I find difficulty in regarding Section 92 as a significant interference with freedom of speech or, more aptly, with freedom of communication. The matter has not been argued, but I doubt if there is, or should be, any right to subject an unwilling listener to opinions he does not want to hear, least of all perhaps through the medium of political advertising. Freedom of communication surely implies a willing communicator and a willing receiver. No doubt many of those who listen to commercial radio would be content, and perhaps interested, to listen to unsolicited political opinions during breaks for advertisements in the programme to which they are listening, but it would not be true of all. There is much to be said in the public interest for confining such freedom within strict limits. The spoken word is both more compelling and more intrusive than the written. The newspaper reader can immediately turn the page. If the listener switches off he might miss the resumption of his programme, and meanwhile he has to wait. I imagine that it is considerations such as these which lead the European Court of Human Rights to say in Informationsverein Lentia -v- Austria 1994 17 EHRR 93 at 112 that the Court had already held that the purpose of the third sentence in paragraph (1) of Article 10 is to make clear that States are permitted to licence the way broadcasting is organised in their territories and that this may lead to interferences whose aims are legitimate, even though they do not correspond to any of the aims set out in paragraph (2) of the Article".

22. In this case the restriction is not a condition imposed by the broadcaster nor is it a restriction required of the broadcaster to impose as a condition of his receiving a licence to broadcast. Rather it is a blanket restriction contained in the Act itself. As I have already mentioned there is no evidence that the owners of 98 FM had any objection to inserting the proposed advertisement but the Commission considered they were not entitled to do so having regard to the Act. Whether the restriction be contained in the Act itself or be a condition of a licence it all forms part and parcel of a licensing system as contemplated by Article 10 of the Convention. I think that it would have been reasonable for the Oireachtas to take the view that in Irish society religious advertising on commercial radio might be undesirable in the public interest. For the restriction to be imposed in the context of a licensing system under Paragraph 1 there did not have to be an absolute necessity for the ban as would be required under paragraph 2 of Article 10. It is sufficient, in my view, if there were good reasons in the public interest for the ban. Irish people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising. Religion has been a divisive factor in Northern Ireland and this is something which the Oireachtas may well have taken into account. As McCullough J. pointed out, a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any Oireachtas to have regard to the type of advertisements which might be permitted. The impugned Section enjoys the presumption of constitutionality. It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interest of the common good on this particular form of exercise of the right to communicate.

23. Of course it has been suggested on behalf of the Applicant that a blanket restriction is not proportional and that even if some restriction would be reasonable it would have to be less draconian. The absolute restriction according to the argument of Counsel for the Applicant infringes the doctrine of proportionality. I cannot accept this view. On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account. But at any rate, I do not think that one could subdivide religious advertising. Once a reasonable view can be put forward that religious advertising might be undesirable in the public interest, it would be impossible in practice to devise a wording that might have the effect of permitting certain alleged categories of innocuous religious advertising. It is the fact that the advertisement is directed towards a religious end and not some particular aspect of a religious end which might be potentially offensive to the public. I, therefore, hold that the Section is not invalid having regard to the Constitution and that this application for Judicial Review must be refused.

24. I realise that even if I had taken the opposite view it would now be too late to advertise for the particular events intended. But the application would still not have been a moot as presumably the Applicant wants to be in a position on future occasions to have similar type advertisements broadcast on commercial radio and the constitutional validity or otherwise of the statutory provision is of considerable importance to him.

© 1997 Irish High Court

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