MURPHY v. IRELAND JUDGMENT
19
56. In the first place, he maintained that it would have been possible to
have limited the prohibition to religious advertising couched in terms
offensive to the religious beliefs of others. The precise terms by which this
could be done, including the standard of offensiveness to be prohibited,
would be a matter for the State and a certain margin of appreciation would
be accorded in that respect. Contrary to the Government, the applicant
considered such a restriction possible and he referred, in particular, to
Council Directive No. 89/552/EEC.
According to the applicant, section 65 of the 2001 Act demonstrated that
the State considered it possible to identify purely informational religious
advertising and to allow the broadcasting of such advertising. Since his own
advertisement contained an element of religious opinion and belief, he
accepted in his oral submissions that his advertisement would be likely to
fall foul of section 65 of the 2001 Act. However, he maintained that the
dilution of the prohibition by section 65 of the 2001 Act was insufficient –
the Convention also protected a person from expression on religious matters
which was “likely and bound” or “calculated” to cause deep-seated offence
to their religious beliefs.
57. Secondly, and as to the Government's wish to avoid benefiting
dominant and powerful religious groups, the applicant noted that in the
above-cited case of Vgt Verein gegen Tierfabriken the Government had
referred to the risk of large and financially powerful groups seeking to
exercise disproportionate influence through advertising. The Court,
however, had found (at § 75 of that judgment) that the Government had not
demonstrated in a “relevant and sufficient” manner why the grounds
generally advanced in support of the prohibition of political advertising also
served to justify the interference in the particular circumstances of the
applicant association's case. The present applicant was in a similar position:
there was no suggestion that he represented a large or powerful religion
seeking to exercise a disproportionate influence through advertising. Indeed,
section 65 of the 2001 Act was also inconsistent with any such concern by
the Irish State: section 65 did not contain any limitation on access by
religious groups to advertising notices in the broadcast media and, indeed, it
could be argued that that section favoured large and well-established
religions at the expense of smaller and less well-known groups because
simple factual references to publications, events or ceremonies would be
likely to have more impact in the case of established and familiar religions.
58. Thirdly, the applicant disagreed that the State would be put in an
invidious position if it had to assess what kind of advertisement would
cause offence. The State had already accepted that it would make a certain
assessment under section 65 of the 2001 Act. In any event, bodies in many
countries including Ireland regularly assessed commercial advertisements
according to advertising standards which regulated, inter alia, the content
and broadcasting of such advertisements. Accordingly, the applicant could
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