THE FACTS

The facts of the case, as submitted by the applicant, may be summarised

as follows:

The applicant, a Netherlands Company with its seat in Amsterdam, is

represented by Mr. S. K. Martens a lawyer practising in The Hague.

The applicant company is a publisher of "General Interest Magazines"

in the Netherlands and also a member of the "Groep Publicksbladen"

consisting of such publishers. It claims to be a victim of an

oppressive legal and factual situation arising from a combination of

the interpretation placed upon Article 10 of the 1912 Netherlands

Copyright Act (Auteurswet) by the Supreme Court (Hoge Raad) of the

Netherlands in its judgment of 1 March 1976 (Omroepwet) together with

the Royal Decree of 1 April 1969 (Omroep Besluit).

The applicant company submits that its present application is, in some

respects, a sequel to Application No 2690/65 (1) N. V. Televizier v.

the Netherlands. It will be recalled that, in that case, the applicant

company, publisher of a weekly magazine containing details of

forthcoming broadcasts, was sued for breach of copyright by an

organisation called the Centraal Bureau voor den Omroep in Nederland

and various broadcasting corporations. The applicant company finally

brought the case before the Commission which decided on 15 December

1966, that the application was admissible under Articles 10 and 14 of

the Convention. However, subsequently, on 3 October 1968, the

Commission struck the case off the list after the applicant company had

withdrawn the application and the respondent Government had indicated

its agreement. It appeared that the relevant provisions of the 1912

Copyright Act, on which the proceedings against the applicant company

were based, had been replaced by the Broadcasting Act of 1967 and the

Royal Decree of 1969, that the proceedings against the applicant

company were discontinued, and that the magazine "Televizier" was

absorbed into one of the five major broadcasting companies on

advantageous terms.

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(1)  Collection of Decisions No 21, p. 90

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In support of its present application, the applicant company first

gives an outline of the broadcasting legislation which entered into

force on 29 May 1969.

Articles 13 and 14 of the Broadcasting Act specify certain criteria by

which a " broadcasting organisation" (omroeporganisatie) might be

recognised. In addition, Article 39 of the Act creates a national

corporation, the Netherlands Broadcasting Corporation (Nederlandse

Omroep Stichting = N.O.S.) as an "organ for co-operation of the

broadcasting organisations". Under Article 27 of that Act these various

organisations fall into one of three classes for the purpose of

allocating broadcasting time depending on the size of their registered

membership. Article 23 of the 1967 Act and Article 13 of the Royal

Decree prescribe that any broadcasting organisation to which time has

been allocated must send the relevant data concerning their programmes

to the N.O.S. Article 23 also provides that the N.O.S. may only make

available the "complete programme data" for publication to broadcasting

organisations to which broadcasting time has been allocated. When the

"complete programme data" have been approved by the NOS and forwarded

to the broadcasting organisations, Article 14 of the Decree specifies

that the said organisations may publish the data in their Programme

Magazines which Article 14 (3) defines as being "a weekly, that is

edited by or under instructions of a broadcasting organisation or

applicant broadcasting organisation and that in principle is only

intended for its members or contributors ..."  Article 15 of the Decree

makes provision for the programme data to be summarised by the NOS once

a week and for this summary to be made available to daily papers and

newspapers which appear at least three times a week in the Netherlands.

Article 16 of the Decree provides for such summaries also to be made

available to foreign broadcasting organisations and to editors of

foreign papers. Finally, Article 22 of the 1967 Broadcasting Act

provides that any "reproduction or publication of lists or other

statements of those programmes otherwise than on behalf of or with

authorization of the Corporation" constitutes a breach of copyright and

entails civil liability.

The applicant company submits that, on 28 October 1969 it petitioned

the NOS with a request that either all programme data be made available

for publication in its "General Interest Magazine" or, alternatively,

that NOS should negotiate to permit the applicant to publish a

"Programme Magazine" on behalf of NOS. By a letter of 9 December 1969

NOS rejected the first request on the basis of Articles 22 and 23 of

the 1967 Act and dismissed the alternative as contrary to the spirit

of Article 23 of the Act in conjunction with Article 14 the Royal

Decree.

The applicant company, regarding the NOS as "an administrative organ

of the central Government" for the purpose of Articles 1 and 2 of the

Act for Appeal from Administrative Decrees (Wet Beroep Administratieve

Beschikkingen), lodged an appeal in conformity with the above Appeals

act to the Queen. The appeal alleged that Article 23 of the

Broadcasting Act should not be construed as forbidding NOS to make

available programme data to "General Interest Magazines", and that the

provisions of the broadcasting legislation violated Articles 10 and 14

of the European Convention on Human Rights. The appeal was declared

inadmissible by a Royal Decree dated 8 April 1971 on the grounds that

the NOS could not be deemed to be "an administrative organ of the

central Government" as it was not vested with any public authority but

was the co-operation body of the broadcasting organisations which are

independent private-law legal persons.

Complaints

The applicant company now complains to the Commission that both the

Supreme Court's interpretation of Article 10 of the Netherlands

Copyright Act in its judgment of 25 June 1965 and particularly the

legislation regarding the publication of radio and television programme

data is inconsistent with Article 10 of the Convention and amounts to

discrimination within the meaning of Article 14 of the Convention.

The applicant company maintains above that Article 22 of the 1967

Broadcasting Act has created, in favour of the Broadcasting

organisations, an absolute right or monopoly regarding the publication

of programme data. This clearly violates their right freely to receive

an impart information as well as the right of the public to be advised

on the oncoming programmes by impartial publications.

The applicant company further alleges that in any event the law

regarding copyright has been changed greatly to the disadvantage of

publishers of "General Interest Magazines" in several ways. For

instance, under Article 10 of the Copyright Act copyright existed for

programme writings only and not for programme data, and by the judgment

of the Netherlands Supreme Court of 25 June 1965 only "... with respect

to writings without distinctive or personal character ... if they have

been published or if they are meant to be published". However, the new

legislation has, inter alia, removed these qualifications in the 1965

judgment and thus even the "avant-programme" data of the broadcasting

organisations, which are never used for publication, may now be covered

by copyright. Furthermore, prior to the 1967 Act and the Royal Decree

the burden of proof lay upon those broadcasting organisations seeking

to prove an infringement of copyright. The Broadcasting Act has

reversed this burden, thus imposing the obligation on those who publish

to prove that their material does not breach another's copyright.

In the applicant company's submission the general effect of this

legislation on the publishers of General Interest Magazines has been

severe. The broadcasting organisations have developed their Programme

Magazines into attractive publications of a "general interest" format,

offering precisely the same reading as the "General Interest

Magazines", including topical information and comment, sports,

amusements, stories, puzzles etc., in addition to the complete radio

and television programmes which have considerable "news value". It was

true that Article 20 of the NOS Statute seeks to prevent this very

trend, and the applicant company has allegedly complained to the

Minister responsible, concerning observance of Article 20, but without

success. In consequence the circulation figures of the "General

Interest Magazines" are dwindling. In addition, advertisers, noticing

the increasing popularity of the "Programme Magazines" which now enjoy,

in effect, a monopoly of broadcasting data, are shifting their orders

away from "General Interest Magazines" thus causing a further threat

to such publications.

The applicant company's allegations can thus be summarised as follows:

1.   The interpretation placed upon Article 10 of the 1912 Copyright

Act by the Netherlands Supreme Court in its judgment of 25 June 1965

concerning programme writings "without distinctive or personal

character" constitutes a violation of Articles 10 and 14 of the

Convention. In this connection the applicant refers to the submissions

of the applicant in Application No 2690/65, N. V. Televizier v. the

Netherlands, which it fully endorses.

2.   The absolute right to publish "complete programme data" conferred

on the broadcasting organisations by the NOS in its interpretation of

the Broadcasting Act and the Decree of 1969 constitutes a breach of

Article 10 of the Convention. It imposes a restriction on the free

circulation of impartial information concerning news and other

broadcasting programmes which is unjustifiable in a democratic society.

Furthermore, the exceptions provided for in Article 10 (2) of the

Convention are inapplicable in this case for the following reasons:

neither the Broadcasting Act nor the Royal Decree are intended as a law

within the meaning of that provision; furthermore the phrase "rights

of others" in that paragraph may only refer to rights protected by the

Convention and the monopoly of programme data cannot be regarded as

such a right; finally, and in the alternative, the national legislator

is not at liberty to create "rights of others" which are not "necessary

in a democratic society" and granting an absolute right to publish such

information as programme data to a restricted group is certainly

contrary to the principles of a democratic society.

3.   The aforementioned inequality in the competitive positions of the

"Programme Magazines" and the "General Interest Magazines", arising

from the broadcasting legislation, violates Article 14 of the

Convention.

4.   The distinction in Article 15 of the Royal Decree of 1969 between

publishers of daily and three-times-weekly papers and the "General

Interest Magazines", such that the former are permitted to publish a

summary of programme data whereas the latter are not, is discriminatory

and violates Article s 10 and 14 of the Convention.

5.   The permission granted by Article 16 of the Royal Decree of 1969

to "General Interest Magazines" abroad to publish summaries of the

programme data is discriminatory and violates Articles 10 and 14 of the

Convention.

The applicant company finally submits that no further domestic remedies

are available to it in the Netherlands but proposes to elaborate

further on this point if this should be required.

It requests the Commission to accept the present application and to

ensure that the respondent Government stop the alleged violations of

the Convention by taking such measures as will make available the

complete programme data to the applicant company for publication in its

"General Interest Magazines" and/or in such other magazines as it may

deem fit, possibly against payment of a fair and reasonable

remuneration.

PROCEEDINGS

A group of three members of the Commission considered the application

on 2 October 1972 and was unanimously of the opinion that, in the

present state of the file, it appeared to be admissible. Consequently,

the President of the Commission on the same date made an order in

accordance with Rule 45, 2 of the Commission's Rules of Procedure that

notice of the application should be given to the Netherlands Government

who should be invited to submit to the Commission their observations

in writing on its admissibility.

The Government submitted such observations on 21 February 1973 and the

applicant company's lawyer replied on 15 June 1973.

SUBMISSIONS OF THE PARTIES

1.   The respondent Government first submitted that, insofar as the

applicant company referred to arguments put forward in Application No

2690/65 (Televizier v. the Netherlands), without repeating them in this

application, they could not be discussed here. Moreover, the present

case was different insofar as, contrary to the Televizier Case, the

present applicant sought to force the Netherlands Government to take

measures whereby the broadcasting organisations and the NOS should be

compelled to release data which they possessed.

The Government then outlined the history and the present state of the

broadcasting legislation as well as the actual situation in the

Netherlands.

Thus, under the Telecommunication Act (Telegraf- en Telefoonwet) 1904,

as amended in 1928, the existence of broadcasting organisations, whose

object was the transmission of wireless broadcasts and who were

established in the 1920's, was formally accepted. Transmission time was

allocated to these broadcasting organisations if they could show that

their aim was to satisfy the cultural or religious needs felt among the

people to such an extent that their transmissions would, on that

account, be deemed as serving the common good.

During World War II the occupation authorities set up a State-owned

enterprise, but after the war the private broadcasting organisations

returned and resumed their transmission. Under temporary regulations

the transmissions were financed by levying a radio-licence fee. All

other expenses of the broadcasting organisations were covered by

contributions from their members, either in the form of subscriptions

to the organisation's weekly magazines or as simple contributions. This

system was incorporated in the Broadcasting Act 1967 which came into

effect on 29 May 1969.

The respondent Government next turned to the two basic ideas on which

the Netherlands broadcasting system was founded namely the principle

of openness of the system and the requirement of co-operation within

the system. As regards the principle of openness the Government

explained that the number of members of or contributors to a particular

broadcasting organisation, as established by means of periodic surveys,

determined both the question of whether or not transmission time was

at all to be allocated to that organisation and the amount of its

transmission time. Using such criterion of numbers was fully in

conformity with the principles of a democratic society and should be

viewed within the context of the requirement laid down by Article 13

(2) (iii) in conjunction with Article 35 (2) of the Broadcasting Act,

that for broadcasting organisations to receive a licence they should

transmit a complete programme which should include at least elements

of a cultural, informative, educational and entertaining nature in

reasonable proportion.

There were presently operating in the Netherlands seven such

broadcasting organisations, two of which had only recently been granted

transmission time. Dutch law also provided for so-called "prospective

broadcasting organisations" who were allocated transmission time for

a period not exceeding two years during which period they had the

opportunity of developing into full-fledged broadcasting organisations.

In addition, transmission time might also be granted to religious

bodies, associations founded on ethical principles, political parties

or other institutions who aimed at satisfying certain cultural,

religious or spiritual needs felt among the people and not otherwise

provided for by existing programmes (Articles 16-19 of the Broadcasting

Act).

The second requirement, that of co-operation, was satisfied in

particular by the existence of the NOS, the Netherlands Broadcasting

Foundation, being a body within which all broadcasting organisations

having obtained transmission time co-operated. The NOS acted as a

coordinating body with the provision that it should not concern itself

in any way with the preparation and composition of the programmes of

the various organisations. Nevertheless, the NOS was responsible for

featuring joint programmes for which it was granted transmission time

of its own.

Under Article 23 of the Broadcasting Act, the broadcasting

organisations were required to make available to the NOS lists of the

programmes which they proposed to broadcast. Such lists were normally

sent about three weeks prior to the date of the broadcasts in question.

The NOS added its own programme lists and sent the compilation to each

of the broadcasting organisations.

Furthermore, the NOS prepared a short summary of the lists submitted

to it and sent it to the Netherlands Daily Newspaper Publishers'

Association (Nederlandse Dagbladpers) and to the Netherlands Newspaper

Publishers' Association (Nederlandse Niewsbladpers) for publication in

the daily and other newspapers appearing in the Netherlands. A similar

summary was also sent to a number of foreign broadcasting

organisations, on a basis of reciprocity, for publication in their

programme magazines.

The Government submitted that the programme magazines published by the

broadcasting organisations played an important part in the Netherlands

broadcasting system. The seven organisations represented the various

sections of society such as Liberals, Conservatives, Socialists,

Protestants (both orthodox and liberal), Roman Catholics and

Independents, and the number of the members of each broadcasting

organisation determined its position within the system. The link

between the organisations and their members was magazines, which thus

also yielded the funds necessary for the organisation's broadcasting

activities. Furthermore, such link was a natural one, as a person would

choose a programme magazine published by the broadcasting organisation

whose transmissions represented his own religious or ideological

thoughts and objectives.

After having thus described the system prevailing in the Netherlands,

the respondent Government turned to the question of the admissibility

of the present application.

The Government noted that the applicant company not only requested the

Commission to put an end to alleged violations of the Convention but

also to require the Government to take such measures as would ensure

that the complete programme data would become available to the

applicant company for publication.

Dealing first with the applicant's latter request, the Government

maintained that such result was not contemplated by Article 10 (1) of

the Convention. It was true that the right to freedom of expression

included the freedom "to hold opinions and to receive and impart

information and ideas without interference by public authority and

regardless of frontiers". This meant that, where information was

offered or ideas were expressed, public authority might not prevent a

person from receiving that information or taking cognisance of those

ideas. However, the Convention did not give a person access to

information or ideas which the holder wished to keep for himself or to

make accessible only to certain persons of his choice and on his own

conditions.

As regards the applicant company's complaint under Article 10 as such

the Government submitted that it was manifestly ill-founded. Indeed,

the broadcasting organisations were fully entitled to refuse the

disclosure of information concerning their programme to persons whom

they did not wish to profit from their exertions, the more so as such

programmes constituted the principal means by which the organisations

could expound their message and give expression to their character.

It was true that the law made special provision requiring that the

complete programmes should be made available, via the NOS, to all

broadcasting organisations who should be permitted to publish these

programmes in their respective magazines. Nevertheless, under Article

23 of the Broadcasting Act and Article 14 of the Broadcasting Decree

each organisation had the right itself to determine when, how, and to

what extent its programmes should be published, and this right was

protected under Article 22 of the said Act. The argument, that this

protection might overstep the limits of copyright as it was generally

understood was irrelevant for the purpose of answering the question

whether or not Article 10 of the Convention had been violated. Indeed

the protection of the right of broadcasting organisations to deny

publication of their programmes to other persons was justified by the

aims which it sought to achieve and had, in fact, achieved.

In this context the Government also replied to certain allegations by

the applicant company concerning the interpretation placed on Article

10 of the Copyright Act by the Netherlands Supreme Court. They

submitted that the Broadcasting Act did not grant a monopoly on "data"

but only protected programme writings, i.e. written statements or lists

containing programme information. The Act was thus perfectly consistent

with Article 10 of the Copyright Act and its interpretation by the

Supreme Court, having regard to the legitimate interest of the

broadcasting organisations in having the exclusive right to publish

their programme lists and to use their publication in order to

strengthen their ties with their members.

On the other hand, the present application appeared to be inspired

solely by the applicant company's wish to derive advantage, for its own

benefit, by utilising for commercial purposes the results of other

people's work. Yet, the applicant company's interests were sufficiently

protected by measures restricting the sale of programme magazines to

persons other than members of the broadcasting organisations, by

requiring that programme magazines must confine their subject matter

solely, or almost solely, to broadcasting, broadcasting organisations,

and programmes, (e.g. the magazines may not publish other subject

matters in excess of 10% of their total contents during a calender

month, on a maximum of five pages of an issue which is cut in a format

of about 26 x 36 cm), and by prohibiting broadcasting organisations to

make their magazines look like general magazines or to combine them

with such general magazines.

Apart from this, the Government contended that, even if there were an

interference with the applicant company's rights under Article 10 (1),

such interference was justified as being "prescribed by law and ...

necessary in a democratic society ... for the protection of the ...

rights of others ..." within the meaning of  Article 10 (2) of the

Convention. The applicant's interpretation of the term "rights of

others" in a sense that only rights protected by the Convention might

enjoy protection under that provision of the Convention provided that

they were, as in the present case, necessary in a democratic society.

Moreover, the Government were unable to understand why the Broadcasting

Act and the Broadcasting Decree which were enacted in accordance with

normal legislative procedure under the Netherlands Constitution should

not be considered as "laws" within the meaning of Article 10 (2) of the

Convention.

The Government lastly submitted that there could be no question of

discrimination within the meaning of Article 14 of the Convention as

publication of the programme writings was not denied on any of the

grounds mentioned in that Article, but on legitimate grounds of

protecting the rights of others.

For these reasons the respondent Government submitted that the

application should be declared inadmissible as being manifestly

ill-founded.

2.   The applicant company, in its written observations of 15 June

1973, first pointed out that it maintained in full its original

application and the arguments submitted therein.

In summarising the present situation under the Netherlands broadcasting

system the applicant submitted that the broadcasting organisations had

become regular competitors of the editors of "General Interest

Magazines" in that they were publishing "Programme Magazines" which for

all practical purposes were quite equal to ordinary magazines except

for the fact that the former contained the complete programme data

which the latter were not allowed to publish. It was true that there

were several provisions aimed at preventing "Programme Magazines" from

assuming the character of "General Interest Magazines", but these were

not observed by the broadcasting organisations and the Government

undertook nothing to enforce these provisions. Indeed, this had been

realised by Members of Parliament already when the Broadcasting Bill

was discussed in Parliament. The allegation that membership in a

broadcasting organisation reflected the members' religious or

ideological thoughts was simply no longer true:  market analyses had

shown that in many cases it was not his preference for the political,

religious or cultural principles for which the broadcasting

organisation stood that determined the subscriber's choice, but rather

the attractiveness of that organisation's "Programme Magazine".

Consequently, since the number of members determined whether or not a

broadcasting organisation was recognised as such and what broadcasting

time should be allocated to it, it was natural that the organisations

were striving for the favours of the public by using all means, and

particularly by making their "Programme Magazine" as attractive as

possible.

In support of these allegations the applicant company submitted

statistical data which had been collected by NIPO, a well known Dutch

survey organisation, in November 1971. According to this survey, 75%

of all persons questioned were subscribers to a programme magazine, of

the Roman Catholic organisation (KRO), out of 100 Protestants only 25

subscribed to the NCRV magazine, and of those who said that they would

vote socialist only 44% were subscribers of the VARA magazine.

Furthermore, only 47% of the subscribers to a programme magazine

considered themselves to be members of the respective broadcasting

organisation and only 31% had said that they became members of the

organisation to whose magazine they subscribed because they agreed with

the principles for which that broadcasting organisation stood. On the

other hand, 33% had chosen the broadcasting organisation because they

liked its "Programme Magazine" and this percentage was even higher with

respect to the individual broadcasting organisations where the above

reason was indicated by subscribers to the programme magazine of the

VARA (53%), AVRO (50%), TROS (41%), NCVR (35%) and KRO (34%).

Moreover, it was hardly correct to suggest that the broadcasting

organisations expressed their character and objectives in their

programme magazines. For instance, during the week of 20 to 26 May 1973

the KRO magazine had devoted only 41/2 out of 88 pages to subjects which

might be considered as expressing that organisation's character and

objective, the VARA magazine 4 out of 64 pages, the AVRO magazine 3 out

of 55 pages, the VPRO magazine 2 out of 64 pages, the TROS magazine 2

out of 160 pages, and the EO magazine 1 out of 56 pages.

In the applicant company's submission, the Government themselves had

admitted that Article 22 of the Broadcasting Act created an exclusive

right to mere factual data and had justified this by pointing out that

the programmes were the result of much thought, effort, inventiveness

and organising skill and also constituted the principal means by which

the broadcasting organisations could expound their message and give

expression to their character. However, the Government confused

"programmes" with "programme data", the latter meaning lists of items

and of performers, with which the present applications was solely

concerned. In the applicant's submission these were not the result of

much thought, effort, inventiveness and organising skill and they

concerned mere facts, such as the day and time when a particular

broadcasting organisation transmitted a particular programme. Perhaps

the contents of such broadcasts and also the special "mixture" of

cultural, informative, educational and entertaining elements which each

organisation was obliged to include in its broadcasts should be

protected against imitation by other organisations, but it was not

possible to protect on that ground the mere fact of the broadcasts.

Thus it was also not possible to maintain that those who wished to

publish such programme data were seeking an unfair advantage by using

the results of other people's efforts and skills. Otherwise it would

equally be justified to accuse newspapers which published programme

data of football matches or of theatre plays that they were preying on

the efforts and skills of football-clubs and/or their teams or

respectively on those of the theatrical companies.

Furthermore, the Government's allegation that the broadcasting

organisations needed the money which they received from their members

in the form of subscriptions to their programme magazines in order to

finance their broadcasting activities was simply not true. In fact,

under Article 58 of the Broadcasting Act "institutions to which

broadcasting time has been allocated will receive from Our Minister an

allowance that is equal to the total of their expenditure approved by

him". Thus broadcasting was, in principle, wholly financed from public

funds which were derived from the fees which every owner of a

television/or wireless set had to pay, and from the yields of

television advertising. But even if it were true that the broadcasting

organisations needed the profits from the subscription to their

programme magazines for their broadcasting activities, the legislature

could have adopted the arrangements proposed by the Advisory Committee

on Broadcasting Legislation which allowed publication of the complete

programme data by all interested members of the press against payment

of a fair and reasonable retribution. However, for the reasons already

given the broadcasting organisations had opposed such a solution.

The applicant company then dealt with the respondent Government's

submissions concerning the Supreme Court's interpretation of Article

10 of the Copyright Act. It maintained that its previous allegations

on this point were relevant insofar as they tended to show that the

restrictions on copyright protection imposed by the Supreme Court in

respect of "writings without a distinctive personal character" to the

extent that such writings had been published or were meant to be

published, had only one purpose namely that of preventing that

copyright from degrading into a monopoly of mere factual data.

Nevertheless, the Broadcasting Legislation in fact went beyond the

scope of the Court's interpretation of the Copyright Act and the

proposals of the Government's Standing Advisory Committee on Copyright

when the new Bill was discussed in Parliament.

The Government denied that the Broadcasting Act created a monopoly on

mere factual data and it was true that the Act did not do so in so many

words. However, in the applicant company's submission, its effect

brought about such result. Indeed, the Government had themselves

admitted that the purposes of Articles 22 and 23 of the Act was to

protect the exclusive right of the broadcasting organisations to

publish the complete programme data in their "Programme Magazines" and

to deny such publication to others.

In the applicant company's further submission, the Government's claim

that the application was manifestly ill-founded under Article 10 or 14

of the Convention rested on a misunderstanding of the applicant's

complaints.

First of all, reference to the Televizier Case was quite relevant, as

the applicant maintained that, apart from the broadcasting legislation,

already the construction which the Supreme Court placed on Article 10

of the Copyright Act by including "writings without distinctive or

personal character" constituted a violation of Article 10 and/or

Article 14 of the Convention. To that extent it had endorsed, and fully

made its own, the arguments submitted by the applicant in the

Televizier Case.

Secondly, the applicant company had not alleged that Article 10 of the

Convention imposed an obligation on the broadcasting organisations to

made the complete programme data available to the editors of "General

Interest Magazines" nor had it demanded that the respondent Government

should compel these organisations to do so. Indeed, the question

whether or not Article 10 of the Convention included the right to

information was an interesting one but was not the subject of

discussion in this case.

The present case was rather based on the thesis that, by making

unlawful the publication of the complete programme data, i.e. a full

weekly programme and not simply the programme for a few days to come,

for all except the broadcasting organisations, the broadcasting

legislation interfered with the applicant company's right under Article

10 of the Convention, freely to impart information, and with everyone's

right under the same provision freely to receive such information.

Furthermore, insofar as the broadcasting legislation was especially

designed to prevent the publishers of "General Interest Magazines" from

publishing the complete programme data, and thus from the enjoyment of

their rights under Article 10 on no other ground than that their

magazines were competitive with the "Programme Magazines", this

legislation was discriminatory within the meaning of Article 14 of the

Convention. In this context the applicant company submitted that a

short summary of the programme data was allowed to be published by the

Dutch daily and other newspapers and by foreign "General Interest

Magazines" sold in the Netherlands and of which some were written in

Dutch.

The applicant company finally submitted that the interference

complained of was not justifiable under paragraph (2) of Article 10 of

the Convention. In this connection it explained that neither the

Broadcasting Act nor the Decree could be considered as "laws" within

the meaning of that provision. "Laws" within that meaning required that

the legislature had consciously and conscientiously balanced the right

to freedom of expression against other interests. This the legislature

had failed to do in respect of the broadcasting legislation as it had

consistently refused to acknowledge even the possibility that the

provisions granting an exclusive right to publish programme data might

be understood as a restriction of the freedom of expression guaranteed

under Article 10 (1) of the Convention.

In the applicant company's further submission, the term "rights of

others" in Article 10 (2) of the Convention referred only to such

rights which were protected under the Convention. Otherwise the

national legislature would have vast freedom arbitrarily to restrict

the right to freedom of expression, the only limitation then having to

be found in the words "necessary in a democratic society" which were

rather vague.

Indeed, the system contemplated by the broadcasting legislation in the

Netherlands could not be considered "necessary in a democratic

society". It was certainly not sufficient to refer to the fact that the

Government and Parliament of a democratic country had found such

restriction to be necessary, for, although the Contracting States had

a certain margin of appreciation in determining the limits that might

be set to the exercise of the right to freedom of expression, their

judgment was clearly open to supervision, inter alia by the Commission.

Furthermore, it was equally not sufficient simply to find justification

for the creation of exclusive rights, as the question was not whether

or not the interference was justified but whether or not it was

necessary. The applicant company maintained that it was not and

submitted in this context that, according to its information, no other

country provided for such exclusive right with regard to the

publication of data of radio and television programmes. On the

contrary, nearly everywhere else such data were considered as "news"

which was available to the entire press for free and complete

publication.

For these reasons the applicant company submitted that its application

was not manifestly ill-founded and should therefore be accepted by the

Commission.

THE LAW

The applicant company has complained that the restrictions imposed by

legislation in the Netherlands on the publication of radio and

television programme data are inconsistent with Article 10 (Art. 10)

of the Convention and amount to discrimination within the meaning of

Article 14 (Art. 14).

The Netherlands Government have submitted hat the application is

manifestly ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention. They maintained that Article 10

(Art. 10) of the Convention does not grant the applicant company the

right to receive information from third persons in order to impart it

further for commercial purposes. In any event, any restrictions imposed

on the publication of the programmes concerned are necessary in the

broadcasting system established in the Netherlands in order to protect

the interests of the broadcasting organisations, both financially and

otherwise, and they are therefore justified under paragraph (2) of

Article 10 (Art. 10-2). Furthermore, there is no question of a

violation of Article 14 (Art. 14) of the Convention as the publications

concerned are not prohibited on any grounds mentioned in that Article,

but on the legitimate ground of protecting the rights of others.

Article 27 (2) (Art. 27-2), of the Convention in requiring the

Commission to declare inadmissible any application from an individual,

a group of individuals or non-governmental organisation which it

considers to be manifestly ill-founded, does not permit the Commission,

at the stage of admissibility, to reject a complaint which cannot be

so described (see, for example, decisions on the admissibility of

Applications No 1474/62 and No 1769/63, Collection of Decisions, Vol.

II, pp. 50 and 59). In the present case the Commission has carried out

a preliminary examination of the information and arguments submitted

by the parties with regard to the applicant company's complaints under

Articles 10 and 14 (Art. 10, 14) of the Convention. The Commission

finds that these raise substantial issues of law and of fact and are

of such complexity that their determination should depend upon an

examination of their merits. It follows that they cannot be regarded

as manifestly ill-founded within the meaning of Article 27 (2)

(Art. 27-2), of the Convention, and no other ground for declaring the

application inadmissible has been established, or has even been

alleged.

For these reasons the Commission DECLARES ADMISSIBLE and retains the

application, without in anyway prejudging the merits of the case.