MURPHY v. IRELAND JUDGMENT
17
48. He also agreed that the main issue in the present case was whether
the interference with his rights could be considered justified and he
maintained that the Government had not demonstrated any “pressing social
need” justifying the prohibition of the broadcasting of religious advertising,
whether the matter was considered under Article 9 or under Article 10 of the
Convention.
49. The applicant did not dispute that the above-cited Otto-PremingerInstitut and Wingrove cases indicated that a greater margin of appreciation
was to be accorded to the State in matters of morals and religion. However,
he submitted that, in both of those cases, the Court ended its examination of
the applicable margin of appreciation by a reference to the final supervision
of this Court. The State's margin was not therefore unlimited and did not
absolve it from establishing the necessity of the restrictions in question, the
Court being the final arbiter in that respect.
50. As to where the balance lay between the conflicting rights
guaranteed by Articles 9 and 10, the applicant relied on the Court's
statement in its Otto-Preminger-Institut judgment (§§ 46-50) where it was
indicated that those who hold religious beliefs must tolerate and accept the
denial by others of their religious beliefs and even the propagation by others
of doctrines hostile to their own. In that case the Court found the expression
in question to be so offensive as to be a malicious violation of the spirit of
tolerance and that the “duties and responsibilities” of those who expressed
themselves included an obligation to avoid in so far as possible expressions
that were gratuitously offensive to others and thus an infringement of their
rights. The applicant concluded that the key to the balance to be struck
between the Article 10 rights of one person and the Article 9 rights of
another lay in the degree of offensiveness in which the advertisement was
couched.
However, he maintained that his advertisement was completely
inoffensive. It may have advanced a particular religious view but it did not
do so in terms which could possibly have caused offence to an adherent to
any other religion. It fell to be contrasted with the expression at issue in the
above-cited Otto-Preminger-Institut and Wingrove cases. Accordingly, a
prohibition on religious advertising regardless of its nature or content could
not be justified to protect the religious feeling of others. Such a prohibition
would only be justified if the Article 9 rights of others included a right not
to be exposed to any religious views different to their own. However, no
such right exists under Article 9 or elsewhere in the Convention. Indeed, the
applicant argued that such a position would be contrary to the pluralism,
tolerance and broadmindedness required in a democratic society.
51. The applicant went on to point out that Ireland was religiously
homogeneous being over ninety-five percent Roman Catholic. There was no
contemporary problem of religious disharmony in Ireland. He submitted
that broadcasts frequently related to controversial religious themes and that
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