AS TO THE ADMISSIBILITY OF
Application No. 18759/91
by John Mitchell McLAUGHLIN
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 May 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 August 1991 by
John Mitchell McLAUGHLIN against the United Kingdom and registered on
21 September 1991 under file No. 18759/91;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
1 March 1993 and the observations in reply submitted by the
applicant on 20 July 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, born in 1945 and resident in
Derry, Northern Ireland. In the proceedings before the Commission he
is represented by Mr. P.J. Madden, a solicitor practising in Belfast.
The facts of the case may be summarised as follows.
(a) The particular circumstances of the case
The applicant is an active member of Sinn Fein, a political
party. In the 1985 local government elections in Northern Ireland he
was elected to Derry City Council. In 1987 he was elected chairman of
the Council's Finance and General Purposes Committee. He is a member
of several other committees of Derry City Council and his party's
spokesman on the economy. In 1989 he was reelected as a city
councillor.
On 19 October 1988, the Secretary of State for the Home
Department issued two directives, one addressed to the British
Broadcasting Corporation (BBC), the other to the Independent
Broadcasting Authority (IBA), in the following terms:
"1. ... I hereby require [the BBC] [the IBA] to refrain at all
times from sending any broadcast matter which consists of or
includes -
any words spoken, whether in the course of an interview or
discussion or otherwise, by a person who appears or is
heard on the programme in which the matter is broadcast
where -
(a) the person speaking the words represents or purports to
represent an organisation specified in paragraph 2 below,
or
(b) the words support or solicit or invite support for such
an organisation,
other than any matter specified in paragraph 3 below.
2. The organisations referred to in paragraph 1 above are -
(a) any organisation which is for the time being a
proscribed organisation for the purposes of the Prevention
of Terrorism (Temporary Provisions) Act 1984 or the
Northern Ireland (Emergency Provisions) Act 1978; and
(b) Sinn Fein, Republican Sinn Fein and the Ulster Defence
Association.
3. The matter excluded from paragraph 1 above is any words
spoken -
(a) in the course of proceedings in Parliament, or
(b) by or in support of a candidate at a parliamentary,
European Parliamentary or local election pending that
election."
The Home Secretary explained the reasons for the measure in a
statement to Parliament on 19 October 1988:
"For some time broadcast coverage of events in Northern Ireland
has included the occasional appearance of representatives of
para-military organisations and their political wings, who have
used these opportunities as an attempt to justify their criminal
activities. Such appearances have caused widespread offence to
viewers and listeners throughout the United Kingdom, particularly
just after a terrorist outrage. The terrorists themselves draw
support and sustenance from access to radio and television - from
addressing their views more directly to the population at large
than is possible through the press. The Government have decided
that the time has come to deny this easy platform to those who
use it to propagate terrorism. Accordingly, I have today issued
to the chairmen of the B.B.C. and the I.B.A. a notice... The
restrictions will not apply to the broadcast of proceedings in
Parliament, and in order not to impair the obligation on the
broadcasters to provide an impartial coverage of elections the
notices will have a more limited effect during election
periods... These restrictions follow very closely the lines of
similar provisions which have been operating in the Republic of
Ireland for some years... Broadcasters have a dangerous and
unenviable task in reporting events in Northern Ireland. This
step is no criticism of them. What concerns us is the use made
of broadcasting facilities by supporters of terrorism. This is
not a restriction on reporting. It is a restriction on direct
appearances by those who use or support violence...".
By way of an explanatory letter dated 24 October 1988 the Home
Office offered guidance to the BBC on the interpretation of the
notices. The letter, which was copied to the IBA, provided, inter alia,
as follows:
"It was asked whether the notice applied only to direct
statements by representatives of the organisations or their
supporters or whether it applied also to reports of the words
they had spoken. We confirmed, as the Home Secretary has made
clear in Parliament, that the correct interpretation (and that
which was intended) is that it applies only to direct statements
and not to reported speech, and that the person caught by the
notice is the one whose words are reported and not the reporter
or presenter who reports them. Thus the notice permits the
showing of a film or still picture of the initiator speaking the
words together with a voice-over account of them, whether in
paraphrase or verbatim. We confirmed that programmes involving
the reconstruction of actual events, where actors use the
verbatim words which had been spoken in actuality, are similarly
permitted.
...
The BBC also asked whether a member of an organisation or one of
its elected representatives could be considered as permanently
representing that organisation so that all his words, whatever
their character, were covered by the Notice. We confirmed that
the Home Office takes the view that this is too narrow an
interpretation of the word "represents" in paragraph 1(a) of the
text. A member of an organisation cannot be held to represent
that organisation in all his daily activities. Whether at any
particular instance he is representing the organisation concerned
will depend upon the nature of the words spoken and the
particular context. Where he is speaking in a personal capacity
or purely in his capacity as a member of an organisation which
does not fall under the notice (for example, an elected Council),
it follows, from that interpretation, that paragraph 1(a) will
not apply. Where it is clear, from the context and the words
that he is speaking as a representative of an organisation
falling under the notice, his words may not be broadcast
directly, but (as mentioned above) can be reported. (He may, of
course, come within the scope of paragraph 1(b), if his words
contain support for the organisation.) Although there may be
borderline occasions when this distinction will require a careful
exercise of judgment, we believe that the great majority of
broadcast material will fall clearly within one case or the
other."
On 2 November 1988 the Home Secretary's directions to the BBC and
the IBA were debated in the House of Commons, and approved by 243 votes
to 179. The House of Lords, also after a debate, took note of the
directions on 8 December 1988.
The applicant challenged the directives in judicial review
proceedings. His application was dismissed by the High Court of
Justice in Northern Ireland on 7 September 1990. Mr. Justice Carswell
noted that the case of Brind (R. v. Secretary of State for the Home
Department, ex parte Brind and others) had already been determined by
the Court of Appeal in London, and dealt with the other issue raised
by the applicant as follows:
"The sole ground upon which the argument for the applicant was
advanced in this court was that the directives were unlawful, in
that they violated the provisions of Section 19 of the Northern
Ireland Constitution Act 1973. The material part of Section
19(1) reads as follows:
'It shall be unlawful for a Minister of the Crown ... to
discriminate, or aid, induce or incite another to
discriminate, in the discharge of functions relating to
Northern Ireland against any person or class of persons on
the ground of religious belief or political opinion.'
"Discrimination" is defined in Section 23(2) in the following
terms:
'For those purposes [ie the purposes of Part III of the
Act] a person discriminates against another person or a
class of persons if he treats that other person or that
class of persons less favourably in any circumstances than
he treats or would treat other persons in those
circumstances.'
There must in my opinion be a purposive connotation in the words.
'on the ground of' in Section 19(1). Unfavourable treatment of
other persons amounting to discrimination against them is not per
se made unlawful by the subsection. For A's unfavourable
treatment of B to amount to unlawful discrimination, it must be
established that it was carried out on the ground of B's
religious belief or political opinion. ...
...
The following issues accordingly arise in respect of each
directive:
...
3. if [the Home Secretary] did treat them less favourably
[than other persons], whether he did so on the ground of their
political opinions...
...
As they operate in the present case, the terms of the directives
require the BBC and IBA to refrain from sending any broadcast
matter which consists of or includes words where
(a) the speaker represents Sinn Fein, or
(b) the words support or solicit or invite support for Sinn
Fein. The courts in this jurisdiction have on several
occasions taken judicial notice of the objects of Sinn
Fein. In re Curran and McCann's Application [1985] NI 261,
263-4 Hutton J expressed his view in the following passage:
'Therefore I take judicial notice of the facts that
the policy and aims of Sinn Fein are to take power in
Northern Ireland with a ballot paper in one hand and
an Armalite in the other, that Sinn Fein gives
unambivalent support to the 'armed struggle', which is
the euphemism used by Sinn Fein to describe terrorist
murders and other violent crimes committed by the
Provisional IRA, and that when the elected
representatives of Sinn Fein take part in the normal
work of an elected council this is just one plank of
their policy, the other plank being the unambivalent
support of murder and other acts of terrorist violence
committe[d] to overthrow democratic government in
Northern Ireland.'
...
The relevant characteristic of Sinn Fein, as in the case of
the other organisations specified in the directives, is its
support for violence, which cannot be classed as a
legitimate political opinion. That support is an intrinsic
part of the policy of Sinn Fein.
The ban does not operate upon the broadcaster because he is
a member of Sinn Fein. Indeed, it applies equally to
persons who are not members, if the words which they say
support or solicit or invite support for Sinn Fein. It is
not aimed at the opinions of the broadcaster, but at his
representation of Sinn Fein or his support for it.
It follows from this that the major objections made on
behalf of the applicant are not well founded. The first
was that Sinn Fein has some legitimate political objectives
and activities, and the width of the ban prevents its
members from expressing views by means of radio and
television on legitimate political topics. Its effect
therefore is to bring about the unlawful object of
discriminating against Sinn Fein on the ground of political
opinion. I am satisfied on the evidence, however, that in
issuing his directives the Home Secretary was aiming
squarely at terrorism. The first sentence of his statement
to the House of Commons on 19 October 1988 referred to
'representatives of paramilitary organisations and their
political wings'. He referred at several points to
terrorism, and stated that the Government had decided that
the time had now come 'to deny this easy platform who use
it to propagate terrorism'. He expressed concern about the
use made of broadcasting facilities by 'supporters of
terrorism', and described his directives as a 'restriction
on direct appearances by those who use or support
violence'. The same tone was struck in the subsequent
debates and statements made in Parliament and in the terms
of the resolution passed by the House of Commons on
2 November 1988. If confirmation of this purpose is
required, it may be found in the averments contained in the
passages which I have quoted from Mr. Scoble's affidavit,
which have not been controverted. If the applicant is
correct in his contention that the effect of the directives
is to hinder members of Sinn Fein in carrying out
legitimate political activities, that does not make the
actions of the Home Secretary unlawful as discriminating
against those members on the ground of political opinion.
His object was to reduce the support for terrorism afforded
by the participation of Sinn Fein representatives in
television and radio broadcasts. It is perfectly clear
that the support of terrorist violence is an intrinsic part
of Sinn Fein policy. I accept the Home Secretary's
contention that in issuing the directives he was attempting
to take steps to reduce the publicity given to such
support. In my opinion this is not discrimination against
the members or supporters of Sinn Fein on the ground of any
legitimate political opinions which they hold. The Home
Secretary issued the directives on the ground of the
support for terrorism which is an integral part of that
party's policy. As such it is not in my judgment unlawful
under Section 19(1) of the Northern Ireland Constitution
Act 1973.
The applicant's second objection to the directives was
based upon the fact that the applicant has signed a
declaration pursuant to the Elected Authorities (Northern
Ireland) Act 1989. This is not the time and place for a
detailed discussion of or ruling upon the scope and effect
of the execution of such a declaration. It is sufficient
to say that the directives were not issued in order to
prevent the broadcasting of programmes in which particular
persons or classes of persons take part. Their object was
the prevention of matter of a particular kind being
broadcast. It is therefore immaterial that a particular
speaker on a broadcast programme may have forsworn support
for acts of terrorism, if he represents or expresses
support for Sinn Fein, a party whose notorious policy is
the support of terrorist violence."
The House of Lords gave its judgments in the case of Brind on
7 February 1991. On 4 March 1991 the applicant abandoned his appeal
in the Court of Appeal of Northern Ireland, and it was duly dismissed.
(b) The relevant domestic law
The notices made in the present case were authorised under powers
conferred on the Home Secretary in a "Licence and Agreement" of
2 April 1981 in respect of the BBC and under Section 29 of the
Broadcasting Act 1981 in respect of the IBA.
The BBC is a public corporation governed by a Royal Charter which
defines its objects, powers and obligations, its constitution and the
sources and uses of its revenues. The Licence and Agreement prescribes
the terms and conditions of the corporation's operations.
Clause 13 (4) of the Licence and Agreement reads as follows:
"The Secretary of State may from time to time by notice in
writing require the Corporation to refrain at any specified time
or at all times from sending any matter or matters of any class
specified in such notice; and the Secretary of State may at any
time or times vary or revoke any such notice..."
Section 29 (3) of the Broadcasting Act 1981 provides that:
"... the Secretary of State may at any time by notice in writing
require the Authority to refrain from broadcasting any matter or
classes of matter specified in the notice; and it shall be the
duty of the Authority to comply with the notice."
In the case of Brind, the House of Lords rejected the applicant's
challenge to the orders, finding that "it was impossible to say that
the Secretary of State, in concluding that the modest restrictions
imposed by the directives were justified by the important public
interest of combating terrorism, had exceeded the limits of his
discretion or acted unreasonably in making them" (R. v. Secretary of
State for the Home Department, ex parte Brind and others, [1991] 1 AC
696, quotation taken from the headnote).
COMPLAINTS
The applicant complains that as a result of the directions he is
prevented from having direct access to the broadcast media: he can no
longer contribute to radio and television programmes, participate in
televised press conferences, and comment on economic and political
developments in the city; he is no longer interviewed on radio and
television, and an already scheduled radio interview was cancelled; as
a city councillor he has no access to the media on matters of concern
to his constituents. The restrictions apply even to matters connected
with the affairs of the City Council, in spite of the fact that he is
a democratically elected member of the Council representing a lawful
political party. Invoking Article 10 of the Convention, he contends
that the orders constitute an unjustified interference with his right
to receive and impart information and ideas.
Under Article 14 of the Convention the applicant complains that
he has been subject to discriminatory treatment as the directions apply
only to representatives of Sinn Fein and not to those of other
political parties.
Finally, the applicant complains that he had no effective remedy
before a national authority for his Convention claims, contrary to
Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 August 1991 and registered
on 21 September 1991.
On 31 August 1992 the Commission decided to communicate the
application to the respondent Government for observations on its
admissibility and merits.
The Government submitted their observations on 1 March 1993 and
the applicant submitted his observations in reply on 20 July 1993.
THE LAW
1. The applicant alleges a violation of Article 10 (Art. 10) of the
Convention by virtue of the effect which the Home Secretary's orders
to the BBC and the IBA have on him.
Article 10 (Art. 10) of the Convention provides, so far as
relevant, as follows.
"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. ...
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 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."
The Government accept that, for the purposes of Article 10
(Art. 10) of the Convention, there has been an interference with the
applicant's right to freedom of expression, but they point out that the
extent of the interference is less than the restrictions applicable in
Ireland when the Commission decided Purcell v. Ireland (Application No.
15404/89, Dec. 16.4.91), and in any event is mitigated by the fact that
the notices do not limit the words which can be spoken on radio and
television, but merely require (for statements falling within the ambit
of the notices) an actor's voice to be used.
The applicant underlines that his position is not to be compared
with that of journalists, as he is a democratically elected local
councillor who is a member of a lawful political party. He denies that
the restrictions are in fact as limited as the Government maintain, as
in practice he is not asked to give interviews on any matters at all
because of his membership of a lawful political party. He states that
the effect of the restrictions is to give an unfair advantage to his
political opponents who are not subject to the restrictions.
The Commission recalls that Article 10 (Art. 10) rights can be
interfered with by restrictions on the manner of conveying information,
as well as on the content of the information (Nos. 11553/85 and
11658/85, Dec. 9.3.87, D.R. 51, p. 136, 144; Eur. Court H.R., Autronic
judgment of 22 May 1990, Series A no. 178, p. 23, para. 47).
The Commission cannot establish whether the fact that the
applicant is not interviewed on specific or general political questions
is attributable to the directions given by the Home Secretary to
broadcasters, but accepts that the directions affect the way in which
he is able to impart information. It also accepts that it is probable
that a councillor whose statements must be "voiced over" is less
likely, all else being equal, to be interviewed for television or radio
than one whose statements can be broadcast as they are made.
The Commission finds that the applicant has been subjected to
interference with his Article 10 (Art. 10) rights.
The interference entails a violation of Article 10 (Art. 10) of
the Convention if it does not fall within one of the exceptions
provided for in paragraph 2 (Art. 10-2). The Commission must therefore
examine whether the interference was "prescribed by law", whether it
had an aim or aims that is or are legitimate under Article 10 para. 2
(Art. 10-2), and whether it was "necessary in a democratic society" to
achieve that aim or those aims.
The Government submit that the Licence and Agreement of 1981 with
the BBC and the Broadcasting Act 1981 in the case of the IBA provide
the necessary regulatory background to the notices, and that, when
taken together with the explanatory letter from the Home Office, the
directions fall within the concept of "law" as defined by the European
Court of Human Rights in the Sunday Times case (Eur. Court H.R., Sunday
Times judgment of 26 April 1979, Series A no. 30, p. 31, para. 49).
The applicant points out that the notice made to the IBA in the present
case, unlike the Order in Application No. 15404/89, did not have to be
laid before Parliament, and that the notice to the BBC was made
pursuant to a licensing agreement, which is not of the nature of a
"law" within the meaning of Article 10 (Art. 10) of the Convention.
The applicant also considers that, if the notices had to be explained
by a letter from the Home Office, then they do not have the requisite
precision to comply with Article 10 (Art. 10). He underlines that his
membership of the local council results from his membership of Sinn
Fein, and states that neither the notices nor the explanatory letter
addresses this problem.
The Commission recalls that the European Court of Human Rights
has identified at least three requirements which flow from the phrase
"in accordance with the law" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention. The phrase "prescribed by law" in
Article 10 para. 2 (Art. 10-2) of the Convention must be interpreted
in the same way as the phrase "in accordance with the law" in Article
8 para. 2 (Art. 8-2) of the Convention (Eur. Court H.R., Silver
judgment of 25 March 1983, Series A no. 61, p. 33, para. 85). Thus a
norm must be formulated with sufficient precision; the phrase "in
accordance with the law", or the equivalent phrase "prescribed by law",
does not merely refer back to domestic law, but also relates to the
quality of the law, and a law conferring a discretion is not in itself
inconsistent with the requirement of foreseeability provided that the
scope of the discretion and the manner of its exercise are indicated
with sufficient clarity (Eur. Court H.R., Olsson judgment of 24 March
1988, Series A no. 130, p. 30, para. 61 with further references).
The Commission notes that there is no contention in the present
case that the interference was not in accordance with domestic law, as
the House of Lords in the case of Brind ultimately established. As to
whether the "law" at issue in the present case has the required
"quality", the Commission notes that the authority to make notices is
of a general, blanket nature. It sets no limits on the type of
directions the minister may give, and does not require the directions
to be made for any particular purpose. The Commission must, however,
look not only to the source of the authority for the making of the
directions, but also to the directions themselves, as it is the
directions which laid down the restrictions which had, and have, to be
complied with by broadcasters and thereby affect the applicant.
The Commission recalls that accessibility and foreseeability are
two of the requirements inherent in the phrase "prescribed by law" in
Article 10 para. 2 (Art. 10-2) of the Convention (see, for example,
Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A no
30, p. 31, para. 49). The accessibility of the directions is not in
question in the present case: the source of the authority for the
respective notices is generally available, and the notices made by the
Home Secretary were announced in Parliament, debated in Parliament, and
the subject of widespread comment in the press. As to foreseeability,
even if the original notices contained areas of uncertainty, such as
the impact on elected individuals speaking on matters unrelated to
terrorism, the Commission finds that the subsequent clarification by
the Home Office to the broadcasting authorities rendered the scope of
the interference apparent to all concerned.
Accordingly, the Commission finds that the interference was
"prescribed by law" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
The Commission must next consider whether the interference with
the applicant's rights pursued a "legitimate aim". The Government
point to the address by the Home Secretary to the House of Commons on
19 October 1988, in which he referred to the restrictions as part of
the campaign against terrorism. They recall that Lord Templeman in the
House of Lords also recognised this aim. They see the aim of the
notices as principally the protection of "the interests of national
security" and "the prevention of disorder or crime". The applicant
regards the test of the legitimacy of aims under Article 10 (Art. 10)
as an objective one. He considers that the Government must show how
they expected the measure to protect national security or prevent
crime, and adds that there is no evidence that audiences are offended
by responsible journalism (and the Home Secretary expressly stated in
Parliament that there was no criticism of journalists); that Irish
"terrorists" have not been interviewed on British television since
1979; that there is no indication that or how the "standing" of
terrorists had been increased, and that "intimidating" statements had
been broadcast.
The Commission notes that the restrictions in the present case
refer in terms to proscribed organisations and to named organisations
which, although not prohibited, are known to have connections with
unlawful organisations. The Commission finds no indication that the
directions were anything other than part of the measures to combat
terrorism which were made in good faith. The Commission accepts that
the aim of the restrictions is legitimate.
Finally, the Commission must consider the question of the
necessity for the interference with the applicant's Article 10
(Art. 10) rights. The European Court of Human Rights has summarised
the major principles of its case-law on the "necessity" test in Article
10 (Art. 10) of the Convention as follows:
"(a) Freedom of expression constitutes one of the essential
foundations of a democratic society; subject to paragraph 2 of
Article 10 (Art. 10), it 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. Freedom of expression, as
enshrined in Article 10 (Art. 10), is subject to a number of
exceptions which, however, must be narrowly interpreted and the
necessity for any restrictions must be convincingly established.
(b) These principles are of particular importance as far as the
press is concerned. While it must not overstep the bounds set,
inter alia, in the `interests of national security' or for
`maintaining the authority of the judiciary', it is nevertheless
incumbent on it to impart information and ideas on matters of
public interest. Not only does the press have the task of
imparting such information and ideas: the public also has a
right to receive them. were it otherwise, the press would be
unable to play its vital role of `public watchdog'.
(c) The adjective 'necessary', within the meaning of Article 10
para. 2 (Art. 10-2), implies the existence of a 'pressing social
need'. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with a European supervision, embracing both the law
and the decisions applying it, even those given by independent
courts. The [Convention organs] are therefore empowered to give
the final ruling on whether a 'restriction' is reconcilable with
freedom of expression as protected by Article 10 (Art. 10).
(d) The [Convention organs'] task, in exercising [their]
supervisory jurisdiction, is not to take the place of the
competent national authorities but rather to review under Article
10 (Art. 10) the decisions they delivered pursuant to their power
of appreciation. This does not mean that [their] supervision is
limited to ascertaining whether the respondent State exercised
its discretion reasonably, carefully and in good faith; what
[they have] to do is to look at the interference complained of
in the light of the case as a whole and determine whether it was
'proportionate to the legitimate aim pursued' and whether the
reasons adduced by the national authorities to justify it are
'relevant and sufficient'."
(Eur. Court H.R., Sunday Times (No. 2) judgment of
26 November 1991, Series A no. 217, p. 29, para. 50)
The Government accept that the directions given to broadcasting
authorities will not directly reduce the number of terrorist acts in
Northern Ireland or in the United Kingdom, but state that they are
intended to reduce the impact and influence of the advocates and
supporters of such acts, and that they correspond to the need to
prevent the giving of overt support for certain organisations. They
refer to the Purcell case, where the Commission found that the
restrictions were designed to "deny representatives of known terrorist
organisations and their political supporters a possibility of using the
broadcast media as a platform for advocating their cause, encouraging
support for their organisation and conveying the impression of their
legitimacy". They consider that, notwithstanding the compliance by
broadcasters with their various statutory or contractual duties,
interviews were broadcast before the notices were issued which gave
terrorists and their apologists a spurious air of authority.
The Government regard the extensive experience of the executive
and the legislature of terrorist matters as justifying a greater margin
of appreciation than might be the case in other spheres involving
restrictions on freedom of expression. They nevertheless point out
that the restrictions on the applicant's freedom of expression are less
onerous than those in the Purcell case, in that they are very precisely
targeted and they do not apply during elections.
The applicant underlines that he is impeded in his work as an
elected representative. He refers in particular to the narrow margin
of appreciation required by the Court in Castells v. Spain (Eur. Court
H.R., Castells judgment of 23 April 1992, Series A no. 236), and again
refers to the fact that he is caught by the notices whenever he speaks
as a councillor, because he is a Sinn Fein councillor. He also
emphasises that, pursuant to the Elected Authorities (Northern Ireland)
Act 1989 he declared that, if elected, he would not lend support to
violence.
The Commission notes that the extent of the interference in the
present case is limited. Whilst he may be affected by the directions
in the way he can broadcast his views on the airwaves, the directions
given on 19 October 1988 do not have any impact on the words that can
be spoken or the images that can be shown on television or the radio.
The Commission has accepted that journalists may be slower to interview
councillors who are subject to the restrictions (such as the applicant)
than others, but nevertheless finds that as it is the case that whilst
the actual words spoken by persons subject to the directions may be
broadcast, the directions cannot be seen as having a major impact on
the way in which the applicant fulfils his democratic functions.
The Commission recalls that freedom of expression is especially
important for an elected representative of the people, and that freedom
of the press affords the public one of the best means of discovering
and forming an opinion of the ideas and attitudes of their political
leaders (Eur. Court H.R., Castells judgment referred to above, pp. 22
and 23, paras. 42 and 43).
Although the Government do not contend that the interference with
the applicant's rights is a prime element in the struggle against
terrorism, it can be regarded as one aspect of a very important area
of domestic policy. The European Court of Human Rights has referred
to the special problems involved in combating terrorism (Eur. Court
H.R., Brogan and others judgment of 29 November 1988, Series A no. 145,
p. 33, para. 61; p. 27, para. 48; Brannigan and McBride judgment of
26 May 1993, Series A no. 258, p. 50, para. 47, with further
references), and the Commission has no doubt as to the difficulties
involved in striking a fair balance between the requirements of
protecting freedom of information - especially the free flow of
information from the media - and the need to protect the State and the
public against armed conspiracies seeking to overthrow the democratic
order which guarantees this freedom and other human rights.
Finally, the Commission notes the findings of the High Court in
the present case as to the role of Sinn Fein in the Northern Irish
political scene, where Mr. Justice Carswell found that Sinn Fein's
"support [for violence] is an intrinsic part of the policy of Sinn
Fein". He was satisfied that the notices were aimed at terrorism, and
indeed considered that even if members of Sinn Fein were hindered in
carrying out political activities by the directions, the Home
Secretary's notices still were not unlawful.
The Commission finds, in the circumstances of the present case
and bearing in mind the margin of appreciation permitted to States, the
limited extent of the interference with the applicant's rights and the
importance of measures against terrorism, that it cannot be said that
the interference with the applicant's freedom of expression was
disproportionate to the aim sought to be pursued.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 13 (Art. 13)
of the Convention. Article 13 (Art. 13) provides as follows.
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls Article 13 (Art. 13) cannot be interpreted
so as to require a remedy in domestic law in respect of any supposed
grievance under the Convention: the grievance must be an arguable one
in terms of the Convention. Moreover, the European Court of Human
Rights has pointed to the link between the notion of "arguable claim"
in its own case-law and the notion of "manifestly ill-founded" in
Article 27 (Art. 27) of the Convention (Eur. Court H.R., Boyle and Rice
judgment of 27 April 1988, Series A no. 131, p. 23, paras. 52 and 54).
The Commission has found the applicant's claims under Article 10
(Art. 10) to be manifestly ill-founded. It also finds the claims under
Article 13 (Art. 13) to be not arguable.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant alleges a violation of Article 14 of the
Convention in conjunction with Article 10 (Art. 14+10) of the
Convention as the restrictions to which he is subject do not apply to
members of other political parties. Article 14 (Art. 14) of the
Convention provides as follows.
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that the applicant abandoned his appeal
to the Northern Irish Court of Appeal against the decision of Mr.
Justice Carswell, so that the question arises whether the applicant has
complied with the requirement of Article 26 (Art. 26) of the Convention
that he exhaust domestic remedies. However, the Commission does not
find it necessary to address this question as the complaint is in any
event manifestly ill-founded for the following reasons.
The Commission recalls that whether or not a difference in
treatment constitutes discrimination in the sense of Article 14
(Art. 14) depends on whether there exists an objective and reasonable
justification. The difference in treatment must pursue a legitimate aim
and there must be a reasonable relationship of proportionality between
the means employed and the aim sought to be realised (see eg. Eur.
Court H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 18,
para. 41).
Mr. Justice Carswell in the High Court in Northern Ireland
accepted that the directions to the broadcasting authorities were made
not in order to prevent the broadcasting of programmes in which
particular persons or classes of persons took part, but rather to
prevent matter of a particular kind being broadcast. He also found it
to be immaterial that a particular speaker may have forsworn support
for acts of terrorism "if he represents or expresses support for Sinn
Fein, a party whose notorious policy is the support of terrorist
violence".
The Commission has above found that the notices issued to the
broadcasting authorities pursued a legitimate aim as such. It also
finds that the reasons given by Mr. Justice Carswell in the High Court
for the application of the broadcasting restrictions to those
organisations specified in para. 2(b) of the notices (including Sinn
Fein), namely the support given by those organisations to terrorist
violence, justify the inclusion of those organisations in the notices.
This part of the application is therefore also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For the these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
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