24
MURPHY v. IRELAND JUDGMENT
Indeed, the High Court pointed out that it was the very fact that an
advertisement was directed towards a religious end which might have been
potentially offensive to the public. The Supreme Court also emphasised that
the three subjects highlighted by section 10(3) of the 1988 Act concerned
subjects which had proven “extremely divisive in Irish society in the past”
and it also agreed that the Government had been entitled to take the view
that Irish citizens would resent having advertisements touching on these
topics broadcast into their homes and that such advertisements could lead to
unrest.
74. The Court has also observed that the impugned provision was
designed to correspond, and was indeed limited, to these particular concerns
and that the bounds of the prohibition are an important consideration in the
assessment of its proportionality (see paragraph 68 above).
The prohibition concerned only the audio-visual media. The State was, in
the Court's view, entitled to be particularly wary of the potential for offence
in the broadcasting context, such media being accepted by this Court (see
paragraph 69) and acknowledged by the applicant, as having a more
immediate, invasive and powerful impact including, as the Government and
the High Court noted, on the passive recipient. He was consequently free to
advertise the same matter in any of the print media (including local and
national newspapers) and during public meetings and other assemblies.
Moreover, the prohibition related only to advertising. This Court
considers that this limitation reflects a reasonable distinction made by the
State between, on the one hand, purchasing broadcasting time to advertise
and, on the other, coverage of religious matters through programming
(including documentaries, debates, films, discussions and live coverage of
religious events and occasions). Programming is not broadcast because a
party has purchased airtime and, as outlined by the Government, must be
impartial, neutral and balanced, the objective value of which obligation the
parties did not dispute. The applicant retained the same right as any other
citizen to participate in programmes on religious matters and to have
services of his church broadcast in the audio-visual media. Advertising,
however, tends to have a distinctly partial objective: it cannot be, and is not,
therefore subject to the above-outlined principle of impartiality and the fact
that advertising time is purchased would lean in favour of unbalanced usage
by religious groups with larger resources and advertising.
Consequently, other than advertisements in the broadcast media, the
applicant's religious expression was not otherwise restricted.
75. Such considerations provide, in the Court's view, highly “relevant
reasons” justifying the Irish State's prohibition of the broadcasting of
religious advertisements.
76. The applicant, however, also maintained that these reasons were not
“sufficient” and, in particular, that the State could have achieved its aims by
a more limited prohibition and, indeed, that it should have gone further than
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