Application No. 12726/87

AUTRONIC AG

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 8 March 1989)

TABLE OF CONTENTS

                                                                Page

I.      INTRODUCTION

        (paras. 1-13) .......................................      1

        A.      The application

                (paras. 2-4) ................................      1

        B.      The proceedings

                (paras. 5-8) ................................      1

        C.      The present Report

                (paras. 9-13) ...............................      2

II.     ESTABLISHMENT OF THE FACTS

        (paras. 14-44) ......................................      3

        A.      The particular circumstances of the case

                (paras. 14-35) ..............................      3

        B.      Relevant domestic law

                (paras. 36-41) ..............................      8

        C.      Relevant international law

                (paras. 42-44) ..............................      9

III.    OPINION OF THE COMMISSION

        (paras. 45-85) ......................................      11

        A.      Point at issue

                (para. 45) ..................................      11

        B.      Interference with the right to receive

                information under Article 10 para. 1

                of the Convention

                (paras. 46-63) ..............................      11

                a.  Scope of the right under Article 10

                    para. 1, first and second sentence

                    (paras. 46-56) ..........................      11

                b.  Licensing of broadcasts under Article 10

                    para. 1, third sentence

                    (paras. 57-63) ..........................      13

12726/87                          - ii -

                                                                Page

        C.      Justification under Article 10 para. 2

                of the Convention

                (paras. 64-87) ..............................      14

                a.  Was the interference "prescribed by law"

                    (Article 10 para. 2)?

                    (paras. 64-74) ..........................      14

                b.  Aim of the interference

                    (paras. 75-80) ..........................      16

                c.  Necessity of the interference

                    (paras. 81-87) ..........................      17

        D.      Conclusion

                (para. 88) ..................................      18

Partly Dissenting Opinion of Mr.  H.G. SCHERMERS ...............    19

Dissenting Opinion of Mrs.  J. LIDDY ............................   20

APPENDIX I:   HISTORY OF THE PROCEEDINGS ........................  22

APPENDIX II:  DECISION ON THE ADMISSIBILITY .....................  23

I.    INTRODUCTION

1.      The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.      The application&_

2.      The applicant company, a stock corporation (Aktiengesell-

schaft) registered under Swiss law, has its seat at Dübendorf in

Switzerland.  It has specialised in the field of home electronics,

inter alia in dish antennae (Parabolspiegel) of 90cm diameter for home

use.  Before the Commission the applicant company is represented by

Mr R. Gullotti, a lawyer practising in Berne.

        The application is directed against Switzerland whose

Government are represented by their Agent, Mr.  O. Jacot-Guillarmod,

Head of the Division of International Affairs of the Federal Office

of Justice.

3.      The application relates to the Swiss authorities' refusal to

permit the applicant company to receive Soviet television programmes

by means of its dish antennae without the approval of the broadcasting

authorities.

        In particular, the Radio and Television Department of the

Board of Directors (Generaldirektion) of the Swiss Post, Telegraph and

Telephone Services (PTT) held on 13 January 1983 that under the

relevant provisions of the International Telecommunications

Convention and the Radio Regulations the reception of broadcasts

transmitted over telecommunications satellites depended on the

approval by the transmitting authorities.  On 10 July 1986 the Federal

Court dismissed the applicant company's administrative law appeal on

the grounds that it had not demonstrated an economic interest worthy

of protection.

4.      Before the Commission the applicant company complains that the

free reception for private use of satellite transmissions which were

not coded and were intended for the general public was made subject to

the approval of the broadcasting State.  The applicant company alleges

a violation of its right under Article 10 of the Convention to freedom

of information.  It submits that there was no legal basis for the

requirement of an approval and that such a requirement was also

unjustified and disproportionate.

B.    The proceedings&_

5.      The application was introduced on 9 January 1987 and

registered on 17 February 1987.

        On 15 October 1987 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

before 15 January 1988 their observations in writing on the

admissibility and merits of the application.  After a prolongation of

the time-limit the Government's observations of 7 April 1988 were

received on 8 April 1988.  Further submissions of the Government were

dated 17 August 1988.  After a prolongation of the time-limit, the

applicant company's reply of 30 June 1988 was received on 4 July 1988.

6.      On 11 October 1988 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

7.      The hearing took place on 13 December 1988.  The applicant

company was represented by Mr.  R. Gullotti, as its counsel, and by

Mr.  W. Streit as assistant counsel.  Mr.  P. Krause, President of the

Board of Directors and proprietor of the applicant company was also

present.

        The respondent Government were represented by their Agent, Mr.

O. Jacot-Guillarmod, as well as by Mr.  B. Münger, then the Service of

International Affairs of the Federal Office of Justice, Mr.  A. Schmid,

Head of the General Law Department of the PTT Board of Directors, and

Mr.  H. Kieffer, Head of Section, Administration of frequencies and

transmission monopoly (Senderegal) of the Radio and Television

Department of the PTT Board of Directors, as advisers.

        Following the hearing the Commission declared the application

admissible.

8.     After declaring the application admissible, the Commission,

acting in accordance with Article 28 (b) of the Convention, also

placed itself at the disposal of the parties with a view to securing

a friendly settlement of the case.  In the light of the parties'

reaction, the Commission now finds that there is no basis upon which

such a settlement can be effected.

C.      The present Report&S

9.      The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberation and

votes, the following members being present:

             MM.  C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. VANDENBERGHE

             Mrs.  G. H. THUNE

             Sir  Basil HALL

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

10.    The text of this Report was adopted on 8 March 1989 and

is now transmitted to the Committee of Ministers of the Council of

Europe in accordance with Article 31 para. 2 of the Convention.

11.    The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is:

i)      to establish the facts, and

ii)     to state an opinion as to whether the facts found

        disclose a breach by the State concerned of its

        obligations under the Convention.

12.      A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

13.      The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.    ESTABLISHMENT OF THE FACTS

A.      The particular circumstances of the case&S

14.     The application concerns the reception by the applicant

company in Switzerland of uncoded Soviet television programmes.  These

programmes are prepared and broadcast in the Soviet Union.  They are

transmitted to the Soviet satellite G-Horizont from where they are

transmitted to receiving stations on the ground which distribute the

programmes to users.  The satellite in question is a telecommuni-

cations satellite rather than a direct broadcasting satellite.  It

constitutes a fixed, i.e. point-to-point, radiocommunications service

according to Article 1 para. 22 of the International Radio

Regulations, and it employs frequencies which have been allotted to

the radiocommunications service (Funkdienst).  Telecommunications

satellites transmit, apart from radio and television programmes,

also telephone conversations, telex messages and other data.

15.     While today a number of satellites exist retransmitting

television broadcasts which could be received by means of dish

antennae, in 1982, at the time when the present application

originated in Switzerland, such broadcasts could only be received

from the Soviet satellite G-Horizont.

16.     In spring 1982 the applicant company filed a request with the

Radio and Television Department of the Board of Directors (General-

direktion) of the Swiss Post, Telegraph and Telephone Services (PTT).

Therein, it applied for permission to show at the Basle trade fair

(Mustermesse) from 17 to 26 April 1982 the public Soviet television

programme which it received by means of a private dish antenna

directly from the Soviet satellite G-Horizont.

        The Radio and Television Department of the Board of the PTT

then wrote to the Soviet Embassy in Berne and inquired about the

permission to receive the Soviet programmes.  This was granted by the

Soviet authorities on 21 April 1982 for the Basle trade fair.  The

applicant company was then able at the trade fair to demonstrate its

dish antennae.

17.     On 7 July 1982 the applicant company again applied for such

a permission for the 1982 FERA exhibition in Zurich lasting from

30 August until 6 September 1982.  This exhibition concerns new

developments in radio, television and electronics equipment.

        The Radio and Television Department of the Board of the PTT

then again asked the Soviet authorities for permission, though a reply

was never received.

18.     On 14 and 26 July and 6 August 1982 the Radio and Television

Department of the Board of the PTT replied that it could not permit

the reception of transmissions from the Soviet satellite without the

express approval of the Soviet authorities.  As long as this approval

had not been granted, the PTT was bound by the Radio Regulations to

prevent any such reception.

19.     The applicant company was planning to conduct further such

demonstrations.  It therefore applied on 1 November 1982 to the Radio

and Television Department of the Board of the PTT for the issue of

a declaratory order (Erlass einer Feststellungsverfügung).  The

applicant company requested in particular a statement according to

which the reception for private use of uncoded transmissions from

telecommunications satellites, such as G-Horizont, should not be made

dependent on the approval by the authorities of the broadcasting

State.  The applicant company submitted that the use of particular

frequencies did not determine whether or not a programme was to be

kept confidential, and Article 23 of the Radio Regulations (see

para. 43 below) did not indicate which programmes were confidential.

20.     The applicant company submitted in particular that only a

licence (Konzession) under Swiss law should be required for the

reception of television and radio broadcasts.  Such a licence could be

granted to everybody as long as the programmes were generally

accessible and public and not confidential.  There was also no

interference with Swiss copyright law since the condition for such

protection was the quality of a "work" (Werk).  While individual

programmes constituted such a work, an entire broadcasting programme

did not.

21.     On 13 January 1983 the Radio and Television Department of the

Board of PTT dismissed the applicant company's request for a

declaratory order.  It issued an order that the reception at issue

could not be permitted without the approval of the broadcasting State.

The order informed the applicant company of the possibility of an

appeal.

22.     As to the reasons for its order, the Radio and Television

Department found that signals from telecommunications satellites could

only be received by specially approved ground stations.  According

to Article 9 para. 960 of the Radio Regulations each State

administration could determine for a point-to-point radiocommunication

certain frequencies, provided that these emissions were not intended

for direct reception by the general public.

23.     The order of 13 January 1983 found, on the one hand, that the

broadcasting satellites transmitted radio and television programmes to

an undefined number of receiving stations in a defined area.  They

transmitted on frequencies which were expressly reserved for direct

reception.  On the other hand, in respect of telecommunications

satellites Article 22 of the International Telecommunication

Convention obliged all members States to secure the confidentiality of

the transmissions.  Article 23 of the Radio Regulations rendered this

provision more precise (see paras. 43ff below).

24.     The decision of the Radio and Television Department continues:

"Somit ist für die Frage, ob eine Sendung für den

unmittelbaren Empfang durch die Allgemeinheit bestimmt ist,

nicht der Inhalt der übertragenen Funksendung (z.B. ein

Fernsehprogrammem) massgebend, sondern die Art und Weise der

Übertragung, nämlich ihre Qualifizierung als Fernmelde-

verbindung.  Daraus folgt, dass mittels Fernmeldesatelliten

übertragene Rundfunkprogramme in einem Land nur empfangen

werden dürfen, wenn die Fernmeldeverwaltung des Sendelandes

... die Fernmeldeverwaltung des Empfangslandes dazu

ermächtigt.  Damit wird auch den Bestimmungen betreffend das

Fernmeldegeheimnis Rechnung getragen.  Es ist nicht

einzusehen, weshalb Fernmeldeverwaltungen bestimmte

Funksendungen nicht sollten geheimhalten können, da sie doch

zur Durchsetzung der Vorschriften von Fernmeldevertrag und

Radioreglement verpflichtet sind."

"For the question, therefore, whether or not a broadcast is

destined for the direct reception by the general public, the

content of the transmitted radiocommunication (e.g. a television

programme) is not relevant.  Rather, the means of transmitting

is important, in particular its qualification as a

telecommunication.  It results therefrom that radio and

television programmes which have been transmitted over a

telecommunications satellite may only be received in a country

if the telecommunications administration of the transmitting

State ... has given its approval to the telecommunications

administration of the receiving State.  Thus, due

consideration is taken of telecommunications confidentiality.

There are no reasons why telecommunications administrations

should not keep certain radiocommunications confidential since

they are bound to ensure compliance with the provisions of the

International Telecommunications Convention and the Radio

Regulations."

25.     The applicant company thereupon filed an appeal (Beschwerde)

which was dismissed, on 26 July 1983, by the Board of Directors of

the PTT. The Board stated that it was competent to examine the appeal.

It continued that the applicant company had an interest worthy of

protection in having the contested order quashed within the meaning

of Article 48 of the Swiss Administrative Procedure Act.

26.     In the grounds for its decision the Board then found that the

protection of the information at issue could not depend, as the

applicant company had suggested, on whether the transmissions were

intended for the use by the general public since in the case of

telecommunications satellites at the moment of transmitting it was

not clear or generally known which transmissions were intended for

the use of the general public.  The Board also considered that

Article 10 of the Convention only granted the right to receive

information from generally accessible sources which the telecommu-

nications satellite did not constitute.  Moreover, it was irrelevant

that the transmissions were later intended for general use since at

the time of transmission there was a duty to keep the transmitted data

confidential.

27.     Against this decision the applicant filed, on 13 September

1983, an administrative law appeal (Verwaltungsgerichtsbeschwerde)

to the Federal Court (Bundesgericht) in which it requested the Court

to issue a declaratory order to clarify the legal situation for the

future.  In particular, the Court was requested to declare that the

reception for private use of uncoded transmissions of telecommuni-

cations satellites intended for the general public should not depend

on the approval of the emitting State.

28.     On 7 February 1984, upon request of the Swiss PTT

authorities, a member of the direction of the Soviet Gostelradio

informed the Swiss PTT by telex that the broadcasts transmitted by the

satellite in question were intended for Soviet television viewers and

not for other countries.  According to the telex, any international

use of such signals would have to be resolved on an international

level.

29.     During the ensuing proceedings the Federal Court decided on

9 July 1984 to ask the Board of the PTT a number of questions on the

factual and legal situation of the case.  The reply thereto, counting

22 pages, was submitted by the PTT General Direction on 22 August

1984.  On 31 August 1984 the applicant company submitted its own

statements on the questions.  On 10 June 1985 the Federal Court

Rapporteur informed the applicant company that its administrative

court appeal had, for different reasons (umständehalber), so far not

been treated and that the applicant company could submit further

statements in reply until 16 August 1985.

30.     Meanwhile, on 26 June 1985, the Radio and Television

Department of the Board of Directors of the PTT transmitted by telex

the following enquiry to the Dutch Telecommunications authorities:

"...  In connection with the judgment of a request, we would

like to know on which conditions reception of TV programmes

via telecommunications satellites is permitted in the

Netherlands.  Please let us also know if the Soviet

communications satellite G-Horizont stationar is received

in your country (by cable operators)..."

31.     On 1 July 1975 the Dutch authorities replied by telex:

"...  The conditions for reception of TV programmes by cable

operators in the Netherlands seem to be quite similar to those

in your country.  The Netherlands PTT issues licences to cable

operators, separate for each particular TV programme.  With

such a licence the operator can install his own TVRO antenna,

although it is advisable for him to consult with PTT for

frequency coordination purposes in order to avoid interference

from terrestrial microwaves. ...  A few years ago some reception

of the Ghorizont satellite did indeed take place.  This was

considered illegal because of the absence of agreements with

the USSR programme provider and satellite operator, and the

cable operators were so informed. ..."

32.     The Swiss Radio and Television Department also asked the

Finnish Telecomunications authorities about reception of television

programmes from satellites.  On 8 July 1985 the latter replied by

telex:

"...  We have permission from the Telecommunications Ministry

of USSR to receive as an experiment the Ghorisont signal

up to 31.12.1985.  Authorisation for distribution has been

given in 7 cases so far."

33.     On 10 July 1986 the Federal Court rejected the applicant

company's administrative court appeal.  The decision was served on

11 November 1986.

34.     The Federal Court stated in its decision that, while the

applicant company had envisaged an abstract determination of the legal

situation, it could in fact only complain that it had been unable to

receive the transmissions in question at FERA since only such a

reception was relevant for the applicant company (kam für sie konkret

in Betracht).  The Court nevertheless found it unnecessary to resolve

whether for this reason the applicant company's request for a

declaratory order was inadmissible since it had in any event also

failed to demonstrate an interest worthy of protection (schutzwürdiges

Interesse).

35.     The Federal Court observed that at that moment there was over

Europe, with the exception of the Soviet G-Horizont satellite, no

other satellite the emissions of which could be received by a home

dish antenna.  In fact, the applicant company had received signals of

the Soviet satellite since it had no possibility to receive other

programmes.  As long as this was the case, the Court found that there

was hardly a market for such antennae, and only "strange persons"

(Sonderlinge) would be inclined to buy such an antenna.  While a

German and a French satellite would eventually commence operation it

was unclear how these means of transmission should be used, and it

could not be estimated how big the interest would be in a direct

reception of their programmes, and how many dish antennae would be put

into use.  Thus, since the applicant company had not demonstrated a

direct economic interest, it had no interest worthy of protection in

the issue of a declaratory order and the Federal Court therefore

refused to enter into the complaint.

B.      Relevant domestic law&S

36.     The Government have referred to a number of provisions of

Swiss law which may be summarised as follows:

37.     Reference is first made to Article 36 para. 4 of the Swiss

Constitution which provides for the inviolability of the secrecy of

letters and telegrams.  The 1922 Federal Act on telegraph and

telephone correspondence provides in Article 1 a State monopoly for

establishing and exploiting all installations serving the electrical

or radio-electrical transmissions.  Article 3 of the 1922 Act provides

for licences by the competent authority for the establishment and

exploitation of installations destined for the transmission of

electrical and radio-electrical signals.  Article 46 para. 2 empowers

the Federal Council (Bundesrat) to enact further legislation.

38.     On the basis of Article 46 para. 2 of the 1922 Federal Act

the Federal Council enacted on 10 December 1973 Ordonnance No. 1

on Telegraph and Telephone Correspondence.  A revised version of this

Ordonnance was enacted on 17 August 1983 and entered into force on

1 January 1984.

39.     Article 50 para. 4 of Ordonnance No. 1 in the version of 1973

requires a licence for the exercise of the monopoly rights, in

particular to demonstrate the functioning of radio reception

installations.  Article 66 para. 4 requires a licence in particular

to demonstrate the functioning of television reception installations.

40.     Ordonnance No. 1 of 17 August 1983 defines in Article 57 the

content of a concession to receive radio broadcasts.  In particular,

the holder of such a concession may receive Swiss or foreign, private

or public radio broadcasts.  Article 78 para. 1 defines the scope of a

licence for a collective antenna whereby its subpara. (a) expressly

refers to the framework of the 1973 International Telecommunications

Convention (see below para. 43).  Subpara. (f) states that the owner of

a collective antenna is entitled to broadcast programmes and provide

individual radio broadcasting services received from telecommunications

satellites with the authorisation of the PTT which themselves require

permission from the Department of Transport, Telecommunications and

Energy.  Reference is also made to Article 79 para 2 of this

Ordonnance No. 1 which states:

"The authorisation envisaged in Article 78 para. 1 (f) shall

be granted if the competent telecommunications authorities

have given their agreement and if none of the reasons for

refusal laid down in Article 19 are present."

        Article 19 of the 1983 Ordonnance No. 1 states that a licence

may be refused if there are serious reasons for supposing that the

telecommunications equipment will be used for purposes which are

illegal, immoral or contrary to public policy, or are harmful to the

overriding interests of the country, of the PTT or of radio

broadcasting.

41.     Under Article 28 of Federal Decree on Satellite Broadcasting

of 18 December 1987, permission from the relevant Federal Department

is required for the retransmission of foreign programmes broadcast by

satellite under a foreign licence.  Such permission is granted only if

the PTT is satisfied that the requirements of Swiss and international

telecommunications law are met.

C.      Relevant international law&S

42.     In the domestic proceedings in which the applicant company was

involved, the Swiss authorities referred to various provisions under

international law, which may be summarised as follows:

43.     Article 22 of the International Telecommunications Convention

of 1973 states:

"Secrecy of Telecommunications.

      1.  Members agree to take all possible measures,

compatible with the system of telecommunication used, with

a view to ensuring the secrecy of international correspondence.

      2.  Nevertheless, they reserve the right to communicate

such correspondence to the competent authorities in order to

ensure the application of their internal laws or the execution

of international conventions to which they are parties."

        Article 42 of the Convention envisages further Administrative

Regulations which shall be binding on the parties.  Under Article 44

Members are bound to abide by the Convention and the Administrative

Regulations in all telecommunications offices and stations established

or operated by them which engage in international services or which

are capable of causing harmful interference with radio services of

other countries.  Finally, Article 82 states that the Convention is

completed inter alia by the Radio Regulations.

44.     Article 1 para. 37 of the Radio Regulations, adopted in the

framework of the International Telecommunications Union (ITU), states

that signals transmitted via broadcasting satellite in outer space may

be directly received by the general public, either individually or

collectively.  Article 9 para. 960 of the Radio Regulations states:

"Any administration may assign a frequency in a band

allocated to the fixed service or allocated to the

fixed-satellite service to a station authorized to transmit,

unilaterally, from one specified fixed point to one or more

specified fixed points provided that such transmissions are

not intended to be received directly by the general public."

        According to Article 23 of the Radio Regulations, States

members of the ITU are bound to prevent reception by the general

public of certain emissions:

"In the application of the appropriate provisions of the

Convention, administrations bind themselves to take the

necessary measures to prohibit and prevent:

        (a) the unauthorised interception of radiocommunications

            not intended for the general use of the public;

        (b) the divulgence of the contents, simple disclosure of

            the existence, publication or any use whatever, without

            authorisation, of information of any nature whatever

            obtained by the interception of the radiocommunications

            mentioned in (lit. a above)."

III.    OPINION OF THE COMMISSION

A.      Point at issue&S

45.     The point at issue in the present case is whether the Swiss

authorities' refusal to permit the applicant company to receive

television broadcasts by a dish antenna from a telecommunications

satellite constitutes a violation of Article 10 (Art. 10) of the Convention.

B.      Interference with the right to receive information

        under Article 10 para. 1 (Art. 10-1) of the Convention&S

        a. Scope of the right under Article 10 para. 1 (Art. 10-1) , first and

          second sentence

46.     The applicant company submits that Article 10 (Art. 10) of the

Convention includes the right to receive information from accessible

sources.  In its opinion, Article 10 (Art. 10) includes the right to receive

television broadcasts which are transmitted over a telecommunications

satellite, since these broadcasts are destined for the general

public.  Article 10 (Art. 10) of the Convention provides:

"1.   Everyone has the right to freedom of expression.  This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers.  This Article

shall not prevent States from requiring the licensing of

broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it

duties and responsibiities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary".

47.     The Government submit that there are inherent limitations to

the rights to receive information under Article 10 para. 1 (Art. 10-1) of the

Convention.  In particular, Article 22 (Art. 22) of the International Tele-

communications Convention and Article 23 of the Radio Regulations

which govern all telecommunications transmitted over a telecommu-

nications satellite provide for the secrecy of such telecommuni-

cations.  The Government contend that Article 10 (Art. 10) of the Convention

does not include the right to receive telecommunications intended to

be secret.

48.     The Commission in declaring the present application admissible

on 13 December 1988, left open whether or not the applicant company can claim a

right under Article 10 (Art. 10) of the Convention to receive broadcasts from a

telecommunications satellite, as opposed to a direct broadcasting satellite.

49.     Furthermore, according to the Commission's case-law, Article

10 (Art. 10) of the Convention, in particular the first and second sentence of

its para. 1, must be seen in principle to include the right that the

reception of broadcasts is not interfered with (see No. 10799/84,

Radio X and others v.  Switzerland, Dec. 17.5.84, DR 37 p. 236;

No. 10248/83, A. v.  Switzerland, Dec. 5.3.85, DR 41 p. 141).

50.     The Commission considers that Article 22 of the International

Telecommunications Convention and Article 23 of the Radio Regulations

primarily protect the secrecy of fixed, i.e. point-to-point, radio

communications.  An issue arises whether these rules also refer to

signals transmitted over a telecommunications satellite which are

destined for the general public although they are generally considered

point-to-point communications.

51.     In this respect the Commission observes that at present only

telecommunications satellites are in operation over Europe.  These

satellites transmit broadcasts for the general public though they are

picked up primarily by receiving stations which then transmit them to

the public.  However, it is clear that these broadcasts are also

directly received by individual private antennae or by collective

antennae.

        It appears from the documents submitted by the applicant

company, the content of which has not been contested in substance by

the Government, that legal regulations have been enacted in France and

Britain under which private individuals may obtain a normal licence to

receive transmission from telecommunications satellites (see Arrêté du

22 octobre 1986 prévoyant les conditions d'exploitation des stations

terriennes de réception de signaux de télévision transmis point Ã

point dans les bandes 10,7-11,7 GHz et 12,5-12,75 GHz pour la France

métropolitaine; the United Kingdom Wireless Telegraphy Act 1949,

Amended, Part I, Article 1, and the concomitant Note of the Department

of Trade and Industry concerning the Application for a licence for

Television Receive Only Satellite Receiving Equipment).

        In this context the Commission further takes note of the 26th

Report by the International Telecommunication Union on telecommun-

ication and the peaceful uses of outer space of 1987.  Therein

reference is made to a new experimental telecommunication satellite

system, TELE-X.  In this programme Finland, Norway and Sweden are

engaged.  The Tele-X mission centres on experiments, inter alia, of

direct television and sound broadcasting to home receivers and cable

television networks.

        The practice of some States therefore appears to accept that

the provisions of the International Telecommunications Convention and

the Radio Regulations do not exclude direct reception of signals

transmitted over telecommunications satellites if they are destined

for the general public.

52.     It is true that in 1982, when the present application

originated, the applicant company could only receive broadcasts

transmitted over the Soviet telecommunications satellite G-Horizont.

However, the Commission finds that this fact does not affect its above

consideration.  In particular, in the domestic proceedings the

applicant company did not limit its application to the specific

situation of the Soviet satellite.  Rather it extended its argument

generally to any broadcast transmitted over a telecommunications

satellite.  Moreover, the Government have confirmed that today the

Swiss PTT authorities would again decide in the same manner as they

did in 1983, if the applicant company were again to file the same

request.

53.     As a result, the Commission does not find it possible to base

its examination on a purely formal distinction between signals,

destined for the general public, which are transmitted over a direct

broadcasting satellite and signals which, uncoded and also destined

for the general public, are transmitted over a telecommunications

satellite.

54.     Consequently, under Article 10 para. 1 (Art. 10-1) of the Convention,

the Commission finds that an interference with the right under para. 1 of this

provision to receive the broadcasts at issue cannot be made dependent on the

formal criterion that the secrecy must be protected of all signals which have

been transmitted over a telecommunications satellite as opposed to those

transmitted over a direct broadcasting satellite.

55.     Rather, where no issue arises as to the secrecy of telecom-

munications, because they are intended for the general public, and where,

furthermore, technical developments enable an individual, with his equipment,

to receive these broadcasts, the right to do so is included in the right,

protected by the first and second sentence of Article 10 para. 1 (Art. 10-1) of

the Convention, to receive information.

56.     The applicant company therefore enjoys the right under Article 10 (Art.

10) to receive the broadcasts at issue.  Since the Swiss authorities have

refused to grant permission to the applicant company to receive these

broadcasts, there has been an interference with its rights under Article 10

para. 1 (Art. 10-1) of the Convention.

        b. Licensing of broadcasts under Article 10 para. 1 (Art. 10-1),

           third sentence

57.     The Government submit that under international telecommuni-

cations law all telecommunications transmitted over a telecommunications

satellite are secret, and that all States are obliged to maintain

their secrecy.  Such secrecy requires also for the reception of

broadcasts a licensing system which, in the Government's view, finds

its basis in Article 10 para. 1 (Art. 10-1), third sentence.

        This provision provides in particular that Article 10 (Art. 10) "shall

not prevent States from requiring the licensing of broadcasting,

television or cinema enterprises."

58.     The applicant company submit that, under the provisions of the

International Telecommunications Convention and the Radio Regulations,

the reception for private purposes of uncoded satellite broadcasts

does not require the consent of the transmitting authorities, for

which reason Article 10 para. 1 (Art. 10-1), third sentence, is inapplicable in

the present case.

59.     The Commission has already found that it cannot proceed from a

formal distinction between signals which are transmitted over a direct

broadcasting satellite and signals, destined for the general public,

which are transmitted over a telecommunications satellite (see para.

53 above).

60.     In the Commission's opinion, the Government's argument would

imply that, whenever a State declares that its broadcasts destined for

its own general public are not destined for the general public of

another State, this would restrict the rights under Article 10 para. 1 (Art.

10-1).  However, such an interpretation would render meaningless an important

principle of Article 10 para. 1 (Art. 10-1), namely that the rights are

enshrined "regardless of frontiers".  This principle implies that States

Parties to the Convention may only restrict information received from abroad

within the confines provided for by the grounds of justification of Article 10

para. 2 (Art. 10-2).

61.     The Commission further notes that the third sentence of Article 10

para. 1 (Art. 10-1) refers to the licensing of "broadcasting". However, in the

present case the equipment of the applicant company was clearly employed as a

means for receiving the broadcasts at issue. For this reason, Article 10 para.

1 (Art. 10-1), third sentence cannot apply in the present case.

62.     As a result, the licensing clause of the third sentence of Article 10

para. 1 (Art. 10-1) does not remove the interference with the applicant

company's right under Article 10 para. 1 (Art. 10-1), first and second

sentence, of the Convention to receive the broadcasts at issue.

63.     The Commission must therefore examine whether this interference

satisfied the conditions laid down in Article 10 para. 2 (Art. 10-2) of the

Convention.

C.    Justification under Article 10 para. 2 (Art. 10-2) of the Convention&S

        a. Was the interference "prescribed by law"

           (Article 10 para. 2 (Art. 10-2) )?

64.     The first question under Article 10 para. 2 (Art. 10-2) of the

Convention is whether the interference was "prescribed by law" within the

meaning of this provision.

65.     The Government submit that, in the light of various provisions of Swiss

domestic law and international telecommunications law (see paras. 36 ff above),

the interference complained of was "prescribed by law" within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.  The Government further

recall, with reference to their submissions in the Groppera case (see Comm.

Report, 13.10.88, paras. 90 ff), that in Switzerland international law is in

principle directly applicable in the domestic legal order.

66.     The applicant company submits that there are no provisions under Swiss

law which provide for the interference at issue, or contain a sufficient

reference to provisions of international

telecommunications law.  Moreover, under the latter it is only the content of

broadcasts and not the frequencies employed which will determine whether the

broadcasts are destined for the general public.

67.     The Commission recalls that two requirements flow from the expression

"prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention:

"Firstly, the law must be adequately accessible:  the citizen must be able to

have an indication that is adequate in the circumstances of the legal rules

applicable to a given case.  Secondly, a norm cannot be regarded as a 'law'

unless it is formulated with sufficient precision to enable the citizen to

regulate his conduct:  he must be able - if need be with appropriate advice -

to foresee, to a degree that is reasonable in the circumstances, the

consequences which a given action may entail."  (Eur.  Court H.R., Sunday Times

judgment of 26 April 1979, Series A No. 30, p. 31 para. 49).

68.     In cases such as the present one, concerning both a domestic as well as

the international legal order, the Commission has further considered that these

requirements may be complied with if international law is directly incorporated

into the domestic legal order, or if the latter refers to international law, as

long as the provisions concerned are sufficiently precise and accessible (see

Groppera v.  Switzerland, ibid. para. 153).

69.     On the international level, the Government refer to Article 22 para. 1

of the International Telecommunications Convention which requires member States

to take all measures compatible to ensure the secrecy of international

correspondence.  According to Article 23 of the Radio Regulations, national

administrations bind themselves to prohibit and prevent the unauthorised

interception of radio- communications.  Such radio-communications are envisaged

in Article 9 para. 960 of the Radio Regulations.  This provision refers to

frequencies in a band which are allocated to fixed, i.e. point-to-point,

satellite services, in particular to a telecommuni- cations satellite.

70.     However, the Commission notes that both provisions of the Radio

Regulations expressly limit their own scope to telecommuni- cations which are

not intended to be received by the general public. It can be left open whether

these provisions should be interpreted as meaning that broadcasts transmitted

over a telecommunications satellite can never be intended to be received by the

general public according to the relevant international telecommunications

provisions.  The Commission finds that these provisions, insofar as they are

interpreted as excluding reception by individuals of broadcasts finally

destined for the general public, have not been formulated in a manner

sufficiently precise to meet the conditions under Article 10 para. 2 (Art.

10-2) of the Convention.  Broadcasts destined for the public require, by their

nature, no measures ensuring their secrecy.

71.     There remain the provisions under Swiss domestic law.  The Commission

finds that Article 36 of the Swiss Constitution, providing for the secrecy of

letters and telegrams, cannot be applied to

broadcasts for the general public.  Ordonnance No. 1 in its version of 10

December 1973, based on the 1922 Federal Act of telegraph and telephone

correspondence, requires a licence for the exercise of the monopoly rights

under the 1922 Act, in particular to demonstrate the functioning of television

reception installations.  No reference is made here to the transmitting State's

approval as a requirement to receive its broadcasts destined for its general

public.  Therefore, already for this reason the Ordonnance does not meet the

requirements of a sufficient legal basis.

72.     Ordonnance No. 1 in the version of 17 August 1983, which entered into

force while the applicant company's administrative court appeal was pending

before the Federal Court, requires in Article 79 para. 2, taken together with

Article 78 para. 1 (f), the authorisation of the competent telecommunications

authorities for the reception of television broadcasts from telecommunications

satellites.  Article 78 para. 1 (f) of this Ordonnance also refers to the

International Telecommunications Convention.  However, these provisions concern

the reception of broadcasts by means of collective antennae, whereas they are

silent about individual dish antennae.

73.     Given the specific nature of the broadcasts mentioned in particular in

Article 78 para. 1 (f) of the Ordonnance No. 1 of 17 August 1983, the

Commission has considered whether these provisions can be construed as

permitting, only under certain conditions, the reception by collective

antennae, of broadcasts transmitted over a telecommunications satellite, while

intending by their silence to exclude the reception of such broadcasts by means

of individual antennae.

74.     However, the Commission does not consider it necessary further to

explore this matter in view of its conclusions concerning the other

requirements of Article 10 para. 2 (Art. 10-2) of the Convention.

        b. Aim of the interference

75.     The next condition to be examined under Article 10 para. 2 (Art. 10-2)

is whether the interference had an aim which is legitimate.

76.     In this respect, the Government submit that the spectrum of frequencies

is a limited resource, that the unlimited flow of information on the

international level would result in anarchy, and that a minimum of order is

required to ensure the cultural and political pluralism lying at the heart of

Article 10 (Art. 10) of the Convention.  Dish antennae may cause disturbances

with other frequencies and with the reception of other antennae.  For these

reasons the interference with the applicant company's rights served the

"prevention of disorder" within the meaning of Article 10 para. 2 (Art. 10-2)

of the Convention.

77.     The applicant company submits that the interference at issue cannot be

regarded as pursuing a legitimate aim, since the broadcasts are intended for

the general public.  This view is confirmed by the more liberal regulations of

other High Contracting Parties.

78.     To the extent that the Government contend that the unlimited flow of

telecommunications would result in anarchy and curtail cultural and political

pluralism, the Commission considers that, as long as no further specifications

are given in this respect, it cannot regard this as a legitimate aim within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention, since it would

call in question a fundamental right of Article 10 para. 1 (Art. 10-1) of the

Convention, namely "to receive an impart information and ideas ... regardless

of frontiers".

79.     The Commission considers that modern telecommunications require both on

the national and on the international level a legal order to prevent

disturbances between the various radio-communication services and other

transmissions.  In this area, disturbances for instance of radio-communications

for flight-control, may have particularly severe consequences.

80.     The Commission accepts therefore that the establishment of legal

provisions which attempt to avoid such disturbances is a legitimate aim,

serving in particular "the prevention of disorder" within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.

        c. Necessity of the interference

81.     The Commission must further examine whether the interference was

"necessary in a democratic society" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.  This term implies, inter alia, that a "pressing

social need" must be demonstrated with regard to the particular interference at

issue (see Eur.  Court H.R., Barthold judgment of 25 March 1985, Series A No.

90, pp. 24 et seq. para. 55).

82.     The Commission is aware that equipment, such as the antennae employed

by the applicant company, although intended solely for the reception of

television broadcasts, can on its own develop a transmitting activity which

might disturb the reception by means of other antennae.

83.     The Government submit in this respect that a potential interference is

possible if the location of the various antennae is not controlled, in

particular if the location is not coordinated with other installations.  Here,

the Commission observes that, as the Government themselves imply, such a

difficulty can be resolved by determining the specific location of the antennae

in advance.  In fact, such coordination in order to avoid any technical

interference of one installation with another may well call for certain

limitations when issuing licences for the employment of individual dish

antennae.

84.     However, such technical difficulties do not require a general ban of

all dish antennae.  Indeed, the same difficulties, resulting from location or

otherwise, must also arise in the case of collective dish antennae, and yet, as

the Government themselves submit, licences are granted to employ such

collective antennae.

85.     The Commission notes that the present case raises no problems with

regard to the secrecy of protected data, such as the transmission of telephone

conversations or telex messages.  Therefore, the prohibition cannot be seen as

necessary for that purpose.

86.     Moreover, the formal distinction between direct broadcasting and

telecommunications satellites cannot serve to justify the necessity of the

interference at issue since the mere reception of signals is not able to

disturb the order established by the respective international

telecommunications law.

87.     In the Commission's opinion, therefore, it has not been shown that the

Swiss authorities' refusal to permit the applicant company to receive the

broadcasts at issue was "necessary in a democratic society ... for the

prevention of disorder" within the meaning of Article 10 para. 2 (Art. 10-2) of

the Convention.

D.      Conclusion&S

88.     The Commission concludes, by 11 votes to 2 with 1 abstention, that

there has been a violation of Article 10 (Art. 10) of the Convention.

Secretary to the Commission             President of the Commission

       (H.C. KRÜGER)                          (C.A. NØRGAARD)

PARTLY DISSENTING OPINION BY MR. H. G. SCHERMERS

        Basically, I agree with the report of the Commission.

Nonetheless, I could not vote for it as I consider that the

application should have been declared inadmissible on the ground that

the applicant company was not the victim of a violation of Article 10

of the Convention.  Nowhere was it even submitted that the company

itself wanted to receive information from the Soviet Union.  It wished

to sell equipment enabling others to receive the information.

        It may seem formalistic to distinguish between the seller and

the buyer of the equipment.  Why should a person who is prevented from

buying the equipment necessary to acquire information be admitted to

lodge a complaint and not the person who wants to sell the equipment?

        There are four reasons:

1.      Article 10, para. 1 grants the right to receive and impart

information, not a right to enable others to receive information.  Of

course, there is a connection, but Article 10 does not require States

to allow unlimited sales of e.g. dish antennae.

2.      The possibility to apply para. 2 of Article 10 depends on the

exercise of the freedom, that is to say on the way the equipment

is used.  This can be established only with respect to the buyer,

not to the seller.

3.      The delimitation of what equipment is necessary to receive

information and what is not is difficult to make.  Electricity, wires,

plugs, etc., are also needed to acquire information by television, but

it is hard to bring restrictions in their sales under Article 10 of

the Convention.  Only with the buyer can one establish whether a

particular use of the equipment is restricted.

4.      There exist all sorts of instruments enabling persons to

listen to conversations in other people's houses or over other

people's telephones.  Restrictions of the sales of such instruments

should be classified rather with restrictions in the sales of

dangerous goods, weapons and poisons than with freedom of

information.  Such sales or market regulations belong to another

category and differ fundamentally from the regulations applied in the

field of freedom of information.

        My conclusion, therefore, is that the application should have

been inadmissible.  Had the underlying facts been different, had the

applicant company been a true recipient of information instead of a

producer of dish antennae, then I would have supported the

Commission's report.  Under these circumstances, I considered best to

abstain from voting.  In accordance with Rule 18 para. 2 I informed

the Commission accordingly before the final vote was taken.

DISSENTING OPINION OF MRS. J. LIDDY

        I regret that I find myself unable to share the majority

opinion in this case.

As to Article 10 para. 1

        The applicant company wished to receive whatever information

might have been contained in a broadcast which was intended for the

general public, albeit a public outside the Swiss frontiers.  In the

light of the Commission's decision that the applicant company may

claim to be a victim (on which I refer to the opinion of Mr.

Schermers).  I accept that its freedom to receive such information was

interfered with.  Moreover the third sentence of Article 10 para. 1

does not apply to the licensing of a company which as a specialist in

the field of home electronics merely wished to demonstrate the

capacity of its equipment.

As to Article 10 para. 2

        In my view the requirement to apply for a licence was

"prescribed by law" (Ordonnance No. 1 on Telegraph and Telephone

Correspondence of 10 December 1973).  At domestic level there was a

dispute as to whether the legal criteria applied by the licensing

authorities and contained in the International Telecommunications

Convention (Article 22) and the International Radio Regulations

(Article 23) which form part of the Swiss legal order were correctly

interpreted and applied.  The issue under the Convention is whether

the licensing requirement and criteria were formulated with sufficient

precision.  The Court has stated that "whilst certainty is highly

desirable, it may bring in its train excessible rigidity and the law

must be able to keep pace with changing circumstances.  Accordingly,

many laws are inevitably couched in terms which, to a greater or

lesser extent, are vague and whose interpretation and application are

questions of practice" (Eur.  Court H.R., Sunday Times judgment of 26

April 1979, Series A No. 30, p. 31 para. 49).

        These principles enunciated by the Court in the context of a

different legal system seem to me to be equally apt where

international law forms part of the legal order.  The interpretation

of the Convention and Regulations adopted and applied by the Swiss

authorities in Spring and July 1982 was clear and it apparently

accorded with the practice of at least three other States at the

relevant time.  I accept that at the relevant time the law was as

clear and accessible as was required under the Convention in the

circumstances of this case.

        The restriction on the applicant's freedom of information was

designed to prevent disorder in the area of international

telecommunications.

        This legitimate aim, in the view of the Swiss authorities, made it

necessary in a democratic society to require the applicant to apply

for a licence, and to refuse it in the absence of the consent of the

transmitting State.  It is not without significance here that the

applicant company itself had no interest in the substance of such

information as might be received, and that it failed at domestic level

to demonstrate a direct economic interest - which would, presumably,

have reflected others' interest in the substance of the information.

The context involved the use of newly discovered means of

communication which might have had implications for inter-State

obligations under existing telecommunications and other international

agreements and for the interests of individuals in there being a certain

stability in the international legal order.  Without exceeding their

margin of appreciation, the Swiss authorities were in my view entitled

to consider that the maintenance and development of international

telecommunications co-operation created, at the relevant time, a

pressing social need to restrict the applicant's freedom to receive

information insofar as it entailed use for the purpose of

demonstration only of new technology without the consent of the other

State concerned.

        I express no view as to whether, in the light of development,

since 1982, such restriction could still be regarded as "necessary in

a democratic society" or as to whether the law applied would still

meet the requirements of precision and accessibility implicit in the

expression "prescribed by law".

APPENDIX I

HISTORY OF PROCEEDINGS

Date                    Item

------------------------------------------------------------------

9 January 1987         Introduction of the application

17 February 1987        Registration of the application

Examination of admissibility

15 October 1987         Commission's deliberations and decision to

                        invite the Government to submit observations

                        on the admissibility and merits of the

                        application

7 April 1988           Government's observations

30 June 1988            Applicant company's observations in reply

17 August 1988          Government's further submissions

11 October 1988         Commission's decision to invite the parties

                        to a hearing on the admissibility and merits

                        of the application.

13 December 1988        Hearing and Commission's decision on

                        admissibility.

Examination of the merits

8 March 1989           Commission's deliberations on the merits

                        and final vote and adoption of the Report