MURPHY v. IRELAND JUDGMENT
25
the limited dilution of the prohibition contained in section 65 of the 2001
Act. However, the Court considers persuasive the Government's argument
that a complete or partial relaxation of the impugned prohibition would sit
uneasily with the nature and level of the religious sensitivities outlined
above and with the principle of neutrality in the broadcast media.
77. In the first place, the Court would accept that a provision allowing
one religion, and not another, to advertise would be difficult to justify and
that a provision which allowed the filtering by the State or any organ
designated by it, on a case by case basis, of unacceptable or excessive
religious advertising would be difficult to apply fairly, objectively and
coherently (the above-cited case of United Christian Broadcasters Ltd v. the
United Kingdom). There is, in this context, some force in the Government's
argument that the exclusion of all religious groupings from broadcasting
advertisements generates less discomfort than any filtering of the amount
and content of such expression by such groupings.
The applicant suggested that such a filtering process is already applied
through the application of the principle of neutrality to programmes and
programming. However, and as the Court has noted above, the distinct
nature of advertising and programming means that the regulatory tools
employed for programming are not directly applicable to advertising. The
applicant also referred to the fact that advertisements (other than those
prohibited by the impugned provision) are already subjected to advertising
standards control. The Court does not, however, consider that the same
public sensitivities and issues of neutrality arise in the case of religious
advertisements and those concerning, for example, commercial services,
goods or products.
78. Secondly, the Court considers it reasonable for the State to consider
it likely that even a limited freedom to advertise would benefit a dominant
religion more than those religions with significantly less adherents and
resources. Such a result would jar with the objective of promoting neutrality
in broadcasting and, in particular, of ensuring a “level playing field” for all
religions in the medium considered to have the most powerful impact.
79. Thirdly, the applicant did not dispute the Government's concern that
allowing limited religious advertising would result in unequal consequences
for the national and independent broadcasters.
80. Fourthly, while the State has, subsequent to the facts of the present
case, diluted section 10(3) of the 1988 Act (through section 65 of the 2001
Act), the Minister's comments in April 1999 together with the limited nature
of the 2001 amendment do not undermine, and indeed are consistent with,
the State's view of the religious sensitivities in Ireland in 1988 and its
understanding of the consequent necessity for full reflection and prudence
when considering any evolution including a relaxation of the provisions of
section 10(3) of the 1988 Act. In addition, the nature of the assessment
required by section 65 of the 2001 Act (whether or not the advertisement
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