16
MURPHY v. IRELAND JUDGMENT
The Government also rejected the idea of a limitation based on the level of
offence as suggested by the applicant (advertising which was “likely and
bound” or “calculated” to cause offence): the Government reiterated that in
the Irish context there was no such thing as “a little bit of offence” as the
fact of religious advertising was considered of itself to be potentially
offensive.
Thirdly, the Government noted that section 65 of the 2001 Act had
somewhat diluted the force of section 10(3) of the 1988 Act. However, the
Government maintained that the State was entitled to consider in 1960 and
in 1988 that a restraint on all broadcasting of religious advertising was
necessary whether the message was purely informational or not. This choice
was not undermined by the decision incorporated in the 2001 Act to allow
the broadcasting of informational advertisements only. In any event, the
applicant's advertisement would, in the Government's view, have still fallen
foul of section 65 of the 2001 Act. Furthermore, the new regime had its own
associated difficulties: the dividing line between religious information and
the underpinning religious assumptions of a message was difficult to
establish.
44. Finally, the Government pointed out that the prohibition challenged
by the present applicant was not unique. A statutory prohibition of religious
advertising was in force in the United Kingdom until the Broadcasting Act
1990 and numerous self-regulatory codes continue to control such matters.
Swiss law (section 18 of the Federal Radio and Television Act together with
section 15 of the Radio and Television Ordinance) prohibited, inter alia,
religious and political advertising. Council Directive 89/552/EEC also
contained a restriction on religious advertising.
45. In such circumstances, the Government submitted that the Irish State
was entitled, under Articles 9 and 10, to act with caution and to chose to
prohibit the broadcasting of religious advertising.
2. The applicant
46. The applicant maintained that his being prevented from using his
method of choice to advertise a religious event by the application of
section 10(3) of the 1988 Act clearly constituted an interference with his
rights under Articles 9 and 10 of the Convention. The above-cited
Handyside judgment indicated that the protection of Article 10 extended to
ideas that “offend, shock or disturb”. He observed that the prohibition
extended to all broadcasters and, while the possibility of advertising in other
media and contexts may have reduced the impact of the interference, it
remained nonetheless a significant and substantial one.
47. He accepted that the relevant restriction was “prescribed by law” and
did not dispute that the aim of protecting public order and safety and the
rights and freedoms of others constituted legitimate aims.
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