European Court rules on the use of religious imagery in advertising
Sekmadienis Ltd v Lithuania [2018] ECHR 112
On 30 January 2018, the European Court of Human Rights (ECtHR) ruled that there had been an unjustifiable infringement of the right to freedom of expression under article 10 of the European Convention on Human Rights (the European Convention), through the restrictions that had been placed on the applicant company’s use of religious imagery in its advertising.
The case originated between September and October 2012, when Sekmadienis Ltd – the applicant company – ran the following three advertisements for a new clothing line: (i) the first showed a young man with long hair, a headband, a halo around his head and several tattoos wearing a pair of jeans, with a caption that read “Jesus, what trousers!”; (ii) the second showed a young woman wearing a white dress, with a halo around her head and holding a string of beads, with a caption that read “Dear Mary, what a dress!”; and (iii) the third showed the man and woman together, with a caption that read “Jesus [and] Mary, what are you wearing!”.
Various complaints were lodged with the State Consumer Rights Protection Authority (SCRPA) in Lithuania. Following several sets of proceedings, the SCRPA concluded that the advertisements had breached article 4(2) of the Law on Advertising dealing with public morals, and fined the applicant company approximately €580. The applicant company’s attempts to appeal the decision domestically were unsuccessful, and the matter ultimately came before the Fourth Section of the ECtHR wherein the applicant company argued that the fine imposed for the advertisements breached its right to freedom of expression contained in article 10 of the European Convention.
Before the ECtHR, the applicant company did not dispute that the persons depicted in the advertisements resembled religious figures, and further accepted that the advertisements had a commercial purpose and did not intend to contribute to any public debate concerning religion or other matters of general interest. The ECtHR noted that the right to freedom of expression does not only apply to information or ideas that are favourably received or regarded as inoffensive, but also to those that offend, shock or disturb. On considering the advertisements, the ECtHR was of the view that they did not appear to the gratuitously offensive or profane, and did not incite hatred on the grounds of religious belief or attack a religion in an unwarranted or abusive manner.
The ECtHR, in its own words, took particular issue with the finding by the SCRPA that the advertisements promoted a lifestyle that was incompatible with the principles of a religious person, without the SCRPA explaining how or why that would be so. The ECtHR noted further that, in a pluralistic democratic society, those who choose to exercise the freedom to manifest their religion “cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith”. Moreover, the ECtHR went on to note that even if it could be assumed that the majority of the Lithuanian population found the advertisements offensive, it would be incompatible with the underlying values of the Convention if the exercise of rights by a minority group were made conditional on it being accepted by the majority; such a position would render a minority group’s right to freedom of expression, for example, as merely theoretical rather than practical and effective.
Accordingly, the ECtHR held that the domestic authorities had violated article 10 of the Convention, and failed to strike a fair balance between the applicant company’s right to freedom of expression on the one hand, and the protection of public morals and the rights of religious people on the other. In the separate concurring opinion of Judge de Gaetano, it was noted that the judgment should not be seen as giving carte blanche to the use of religious symbols, but should be understood in the context of the present matter wherein there was nothing in the advertisements that could be considered offensive or as vilifying religion or religious symbols.
The full judgment is accessible here.
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