MURPHY v. IRELAND JUDGMENT
15
be, and was not, applied. The State could therefore reasonably expect a
lower degree of tolerance of advertising, particularly on sensitive issues.
In addition, just as the restriction on broadcasting of advertising
promoted neutrality and balance, allowing or obliging stations to accept
advertising on religious issues would undermine that balance. Moreover,
they pointed out that the applicant's position went so far as to challenge the
requirement of impartiality even in a political context as he wrongly implied
that any restriction on political advertising would be invalid (Vgt Verein
gegen Tierfabriken v. Switzerland, cited above, §§ 66-67).
41. Furthermore, the Government maintained that the means chosen by
the State to balance freedom of expression against those sensitivities was
limited: it was concerned with broadcasting of religious advertisements only
so that proportionality was thereby built into the overall regulatory regime.
42. The Government accepted that there might have been different ways
of responding to the concerns outlined by it above but considered that the
State was entitled to view certain alternatives as inherently unattractive.
43. They rejected the idea of permitting limited religious advertising. In
the first place, any limitation would have unequal consequences for
broadcasters. The national broadcaster (RTE) would be compelled to
broadcast any advertisement which satisfied the relevant criteria whereas
independent broadcasters would be free to refuse, accept or favour any
religious advertising satisfying such criteria on purely commercial grounds.
Indeed, permitting some form of religious broadcasting would have unequal
consequences for religions with the larger religions potentially exploiting
their dominant position or resources to obtain access to the broadcast media
to the prejudice of smaller religions. The present prohibition, in contrast,
ensured that one viewpoint was not allowed to dominate over another and it
promoted a “level playing field” for all religions irrespective of their wealth,
their dominance, their power and their current popularity (United Christian
Broadcasters v. the United Kingdom, application no. 44802/98, decision of
7 November 2000).
Secondly, the assessment of any such restrictions would be inherently
problematic. Restricting the amount of advertising from certain religious
groups could easily have been perceived as discriminatory - individuals
might have been prepared to accept that no one could advertise, but to
control advertising by certain religions was bound to inflame some religious
sensibilities. In addition, the Government wondered whether it was indeed
possible to distinguish between the passionate and committed preacher and
the incendiary proselytiser. A limitation based on the content of the
advertisement raised the spectre of subjective religious censorship by either
the State or by the broadcasters themselves. The involvement of the State, or
indeed of any non-State agent, in such censorship could potentially be
considered offensive of itself and, further, there was a risk that the familiar
would be considered more permissible than the marginal and unfamiliar.
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