14
MURPHY v. IRELAND JUDGMENT
in contemporary Irish society on the part of adherents of both dominant and
minority religions. Given this potentially incendiary situation, the State was
entitled to act with caution in conditioning the circumstances in which
religious material, and in particular religious advertising, would be made
available in the broadcast media.
The Government disputed that the Sunday Times and Handyside
judgments (Handyside v. the United Kingdom, judgment of 7 December
1976, Series A no. 24, and Sunday Times v. the United Kingdom (no. 1),
judgment of 26 April 1979, Series A no. 30) allowed the applicant to
broadcast religious advertisements that offended, shocked and disturbed.
The Sunday Times case could be distinguished from the present case: the
former concerned expression of a political or public interest nature, the print
media, and an editorial feature in a newspaper. The Government rejected the
implication from the applicant's reliance on the Sunday Times jurisprudence
that, in the area of religious advertising, one has the right to be a bit
shocking, somewhat disturbing and mildly offensive.
39. Turning to the audio-visual (as opposed to print) context of the
prohibition, the Government recalled that Article 10 § 1 specifically foresaw
the regulation by a licensing system of the manner in which broadcasting
was organised in a State's territory which control had to be justified for one
of the reasons included in the second paragraph of Article 10 of the
Convention. According to Convention jurisprudence relevant considerations
included the nature and objectives of the proposed station, its potential
audience and the rights and interests of a specific audience. The
Government argued that control of the broadcasting media had been
accepted as necessary for, inter alia, the orderly regulation of broadcasting
enterprises and the appropriate allocation of limited broadcasting resources.
In addition, and critically for the purposes of the present case, such
regulation was necessary given the particularly intrusive and compelling
nature of the broadcast media together with its consequent impact and
potential for offence (including on the passive recipient).
40. As to the advertising context of the prohibition, the Government
distinguished between paid advertising space and programmes, the latter
being subject to the universally recognised and fundamental requirement of
impartiality and neutrality. This was an obligation of the national and the
independent broadcasters (section 18 of the 1960 Act and section 9 of the
1988 Act) and required each programme dealing with a controversial matter
to be balanced or that the overall programming of the station on such
matters would be such as to give a sufficient hearing to other or opposing
views. Given the necessary neutrality of programmes, the State could expect
a fair degree of tolerance on the part of the recipient. Conversely, the
Government maintained that advertising was, by definition, partisan, onesided and unbalanced in which case the principle of impartiality could not
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