Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15404/89

by Betty PURCELL et al.

against Ireland

The European Commission of Human Rights sitting in private

on 16 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 August 1989

by Betty Purcell and others against Ireland and registered on

28 August 1989 under file No. 15404/89;

Having regard to:

- the observations submitted by the respondent Government on

18 May 1990 and the observations in reply submitted by the

applicants on 31 July 1990;

- the submissions of the parties at the hearing on 16 April 1991;

Having deliberated;

Decides as follows:

THE FACTS

The application is brought by:

- Ms Betty Purcell and sixteen other Irish citizens; they are

journalists or producers of radio or television programmes, employed

by Radio Telefis Eireann (RTE) (see complete list in the Annex);

- the National Union of Journalists;

- the Services Industrial Professional Technical Union.

The individual applicants are members of one or other of the

two aforementioned trade unions.

The applicants are represented in the proceedings before the

Commission by Anne Neary & Co., solicitors in Dublin.

The facts of the case, as submitted by the parties, may be

summarised as follows:

The application concerns alleged restrictions on the

applicants' freedom of expression, resulting from a ministerial Order

made under Section 31 of the Broadcasting Authority Act 1960 (as

amended by Section 16 of the Broadcasting Authority (Amendment) Act

1976).

The relevant provisions of the amended Section 31 of the 1960

Act are as follows:

"(1) Where the Minister is of the opinion that the

broadcasting of a particular matter or any matter of a

particular class would be likely to promote, or incite to,

crime or would tend to undermine the authority of the State,

he may by order direct the Authority to refrain from

broadcasting the matter or any matter of the particular

class, and the Authority shall comply with the order.

(1A) An order under subsection (1) of this section shall

remain in force for such period not exceeding twelve months

as is specified in the order and the period for which the

order is to remain in force may be extended or further

extended by an order made by the Minister or by a

resolution passed by both Houses of the Oireachtas providing

for its extension; provided that the period for which an

order under the said subsection (1) is extended or further

extended by an order or resolution under this subsection

shall not exceed a period of twelve months."

The Section 31 Order in force at the time the application was

introduced is S.I. No. 3/1989 which provided that an earlier Order

(S.I. No. 13/1987) was to remain in force until 19 January 1990.

Under S.I. No. 3/1989, RTE is directed to refrain from

broadcasting any matter which is:

"(1) an interview, or a report of an interview, with a

spokesman or with spokesmen for any one or more of the

following organisations, namely:

(a) the organisation styling itself the Irish

Republican Army (also the IRA and Oglaigh ne

hEireann):

(b) the organisation styling itself Sinn Fein;

(c) the organisation styling itself Republican

Sinn Fein;

(d) the organisation styling itself the Ulster

Defence Association;

(e) the organisation styling itself the Irish

National Liberation Army (also the INLA);

(f) any organisation which in Northern Ireland

is a proscribed organisation for the purposes

of section 21 of the Act of the British Parliament

entitled the Northern Ireland (Emergency Provisions)

Act, 1978.

(2) A broadcast, whether purporting to be a party

political broadcast or not, made by, or on behalf of, or

advocating, offering or inviting support for, the

organisation styling itself Sinn Fein or the organisation

styling itself Republican Sinn Fein.

(3) A broadcast by any person or persons representing, or

purporting to represent, the organisation styling itself Sinn

Fein or the organisation styling itself Republican Sinn Fein."

In order to comply with the terms of the Section 31 Order,

guidelines were issued by the RTE Authority in 1978 and

re-issued in 1989. The effect of these guidelines has been summarised

by the applicants as follows:

- RTE staff are prohibited from broadcasting any interviews

with, or recording of statements uttered by any person whom

they know to be a member of one of the organisations listed

in the Section 31 Order;

- RTE staff are required to ascertain in appropriate

circumstances whether a person is a member of a proscribed

organisation within the meaning of the Section 31 Order;

- RTE staff must obtain clearance from the Divisional Head

concerned prior to broadcasting any news feature or

current/public affairs programmes relating to Northern

Ireland;

- the prohibition on publishing any interview statement,

comment or otherwise by a member of a listed organisation

within the meaning of Section 31 extends to any subject

matter, such as nature programmes, education, drugs

problems, etc;

- coverage by news programmes or current affairs

programmes of meeting or press conferences involving

representatives of listed organisations within the

meaning of the Section 31 Order must use mute film or

stills to illustrate such reportage, and the reading out of

any statements or portions of statements by the RTE staff

member concerned;

- the guidelines require that in all matters concerning news

treatment of listed organisations the Head of News will,

where appropriate, consult with the Director-General.

- failure to comply with the guidelines could result in

dismissal of the staff member concerned.

Paragraph 4 of the guidelines indicates that in news bulletins

factual reportage is not prohibited by the Order and that statements

from the listed organisations "on significant developments, including

the acceptance or denial of responsibility for violence or other

unlawful activity" may be reported. Appropriate use of mute film or

stills to illustrate such reportage is permitted but "sound recording

or sound-on-film of a spokesman or spokesmen for any one or more of

such organisations, or interviews or reports of interviews with such

persons, is not permitted."

The organisation Sinn Fein which is referred to in the Section

31 Order is not an unlawful organisation under the Offences Against

the State Act 1939. Section 19 of the 1939 Act enables the Government

to declare certain organisations unlawful. By Section 21 of the 1939

Act membership of an unlawful organisation is made an offence. The

IRA has been declared to be an unlawful organisation under the 1939

Act, but Sinn Fein has not; it is a registered political party under

Section 13 of the Electoral Act 1963 which provides for a Register of

Political Parties.

The constitutional validity of Section 31 of the 1960 Act in

the light of the constitutional guarantee of freedom of expression

(Article 40.6.1.) was considered by the Supreme Court in the case of

The State (Lynch) v. Cooney (1982) IR 337. This case concerned the

validity of that part of a Section 31 Order made by the Minister of

Justice on 9 February 1982 which prohibited party political broadcasts

by Sinn Fein as well as broadcasts by any persons representing or

purporting to represent Sinn Fein (see similar provisions in paras.

2 and 3 of Section 31 Order above).

The relevant part of Article 40.6.1. of the Irish

Constitution provides as follows:

"6. 1° The State guarantees liberty for the exercise of

the following rights, subject to public order and morality:-

i. The right of the citizens to express freely

their convictions and opinions.

The education of public opinion being, however, a

matter of such grave import to the common good, the State

shall endeavour to ensure that organs of public opinion,

such as the radio, the press, the cinema, while preserving

their rightful liberty of expression, including criticisms

of Government policy, shall not be used to undermine public

order or morality or the authority of the State."

Chief Justice O'Higgins, delivering the judgment of the

Supreme Court on 28 July 1982, upheld the validity of Section 31 of

the 1960 Act (as amended) in the following terms (p. 361):

"The legislation deals with, amongst other things, the

control of freedom of expression and free speech within the

powers granted by s. 6, sub-s. 1, of Article 40 of the

Constitution. This provision enables the State, in certain

instances, to control these rights and freedoms. The basis

for any attempt at control must be, according to the

Constitution, the overriding consideration of public order

and public morality. The constitutional provision in

question refers to organs of public opinion and these must

be held to include television as well as radio. It places

upon the State the obligation to ensure that these organs

of public opinion shall not be used to undermine public

order or public morality or the authority of the State. It

follows that the use of such organs of opinion for the

purpose of securing or advocating support for organisations

which seek by violence to overthrow the State or its

institutions is a use which is prohibited by the

Constitution. Therefore, it is clearly the duty of the

State to intervene to prevent broadcasts on radio or

television which are aimed at such a result or which in any

way would be likely to have the effect of promoting or

inciting to crime or endangering the authority of the

State. These, however, are objective determinations and

obviously the fundamental rights of citizens to express

freely their convictions and opinions cannot be curtailed or

prevented on any irrational or capricious ground. It must

be presumed that when the Oireachtas conferred these powers

on the Minister it intended that they be exercised only in

conformity with the Constitution.

The Court is of the opinion that s. 31, sub-s. 1, of

the Act of 1960, as amended, does not confer on the Minister

the wide, unfettered and sweeping powers which have been

alleged by the prosecutor. The Court is satisfied that the

sub-section does not exclude review by the Courts and that

any opinion formed by the Minister thereunder must be one

which is bona fide held and factually sustainable and not

unreasonable. For these reasons the Court has come to the

conclusion that the invalidity alleged to attach to sub-s. 1

of s. 31 has not been established."

The Supreme Court reviewed the evidence adduced by the

Minister of Justice which was uncontroverted and which indicated that

Sinn Fein was "an integral and dependent part of the apparatus of the

Provisional I.R.A., an illegal terrorist organisation which, by both

its avowed aims and its record of criminal violence, is shown to be

committed to amongst other things the dismantling by violent and

unlawful means of the organs of the State ..." (per Mr. Justice

Henchy, at p. 381).

The Court considered that this evidence fully justified the

Minister's opinion that a broadcast made on behalf of or inviting

support for Sinn Fein, or broadcast by a person purporting to

represent that organisation, would have been likely to promote or

incite to crime or would have tended to undermine the authority of the

State. Accordingly, it was held that the Order made by the Minister

was not made ultra vires Section 31 (1) of the 1960 Act (as amended).

The individual applicants have submitted affidavits in which

they described in detail the effect of the Section 31 Order on their

capacity as broadcasters to receive and impart information. In

essence they claim that the effect of the Order and guidelines has

been gravely to distort coverage of all news events, current affairs

and social developments in Northern Ireland, to deter journalists

and/or producers from choosing to put on programmes relating to any

issue in Northern Ireland and to prevent journalists and producers

from complying with the requirement as to balance and impartiality in

its programmes produced. The applicants consider that Section 18 of

the 1960 Act (as amended) offers a sufficient safeguard against the

use of the broadcasting media to undermine the authority of the State.

This provision imposes inter alia a duty of impartiality on the RTE

Authority but also provides that no matter may be broadcast "which may

reasonably be regarded as being likely to promote, or incite to, crime

or as tending to undermine the authority of the State."

In their affidavits to the Commission the applicants submit

that the professional morale and competence of RTE journalists have

been significantly undermined. By way of illustration of the impact

of the Order on the role of television journalism they state inter

alia as follows:

- the restrictions prevent RTE staff from giving a balanced

account of many events as they are happening. During

elections campaigns RTE staff are not permitted to interview

candidates or broadcast statements or comments by candidates

from the listed organisations (i.e. listed in the Section 31

Order) who are running for election. They are also prevented

from interviewing members of listed organisations who hold

public office, such as Sinn Fein councillors;

- restrictions on coverage of Sinn Fein candidates,

notwithstanding that Sinn Fein is a lawful political party

in Ireland, mean that journalists could not cover press

conferences live but could only read out press statements

afterwards. This prevented the applicants from challenging

the candidates on their campaign manifesto or covering a

question and answer session in which journalists question the

organisation or its candidates about their campaign manifesto

or objectives. The restrictions have the effect of deterring

RTE staff from covering any story which might involve the

participation of a member of Sinn Fein whether as a local

councillor, local activist in a voluntary body or otherwise;

- the ban on interviewing a member of Sinn Fein or other

listed organisation is a blanket ban, irrespective of

the news story being covered. As one of many examples, the

applicants cite the coverage by RTE of an incident where a

teacher had been dismissed from a convent school where she

was teaching because she had become pregnant outside

marriage. The teacher had brought proceedings in the High

Court, claiming unfair dismissal and RTE could not interview

her because she was a member of Sinn Fein. It is claimed

that the mere recording of the woman's voice saying "no

comment" being broadcast on air resulted in the reporter

concerned being reprimanded;

- the restrictions particularly affect RTE staff working in

Radio na Gaeltachta which serves the Irish-speaking sector

of the country, presenting news, information and a full

range of programmes through the medium of the Irish

language. One of the applicants details his inability to

interview a recent chairman of Galway County Council who is

a fluent Irish speaker but also a member of Sinn Fein and

the difficulty of mounting programmes on areas such as the

state of the roads in the Connemara area. He also refers

to the fact that he could not use on his programmes a local

solicitor who has a specialist knowledge of Gaeltacht areas

because he happens to be a member of Sinn Fein;

- even programmes critical of Sinn Fein are subject to the

restrictions under the Section 31 Order. Thus in a

television programme reporting on the morality of voting for

Sinn Fein it was not possible to interview anybody from Sinn

Fein itself to represent their views in a panel discussion;

- the Section 31 Order has never been suspended to enable RTE

journalists to cover an election either in Ireland or in

Northern Ireland. The Order operated fully during the 1989

combined general election and European elections in Ireland

and the European elections in Northern Ireland. It is

pointed out that similar broadcasting restrictions imposed

by the United Kingdom Home Secretary on 19 October 1988 on the

BBC and the IBA were suspended for the duration of the

election campaign in Northern Ireland;

- the applicants point to the anomalous consequences of the

restriction in that they could not interview Gerry Adams,

MP, on a successful election to Westminster but were forced

to interview the losing candidate. The British and

Worldwide radio and television carried direct interviews

with Mr. Adams which further undermined the credibility of

RTE.

COMPLAINTS

Article 10 of the Convention

The applicants complain under Article 10 of the Convention

that the Section 31 Order constitutes an unjustifiable interference

with freedom of expression and is a serious infringement of their

right in a democratic society to impart information to the public, and

of their right to receive information without unnecessary interference

by a public authority.

They submit that the wording of the Section 31 Order

lacks the requisite precision to be "prescribed by law" within the

meaning of Article 10 para. 2 of the Convention. Efforts made by the

RTE Authority, by journalists in RTE and by the two trade union

applicants to seek clear ministerial guidelines as to the scope of the

Order have failed. In the event, the applicants have been compelled

to comply with the guidelines issued by the RTE Authority in purported

compliance with the Section 31 Order.

The applicants accept that in principle the objectives pursued

by Section 31 come within the legitimate aims "in the interests of

national security or for the prevention of disorder or crime" under

Article 10 para. 2. However, the practical effect of the Section 31

Order has greatly exceeded those aims and has become a blanket ban on

the proper and adequate coverage of political, social and current

affairs issues related to Northern Ireland. It is also submitted that

these legitimate aims are adequately covered by Section 18 (1) of the

Broadcasting Authority Act 1960 (as amended) which provides that RTE

in complying with its duty of impartiality is prohibited from

including in any of its broadcasts "anything which may reasonably be

regarded as being likely to promote, or incite to crime as tending to

undermine the authority of the State."

The applicants further submit that the restrictions do not

correspond to a pressing social need and are disproportionate to the

aims pursued. In particular they submit that:

- the Section 31 Order relates to the personality of the

interviewee as a possible member of one of the listed

organisations rather than to the content of the interview or

utterance;

- the Order has deterred RTE journalists from carrying out

investigative journalism and from producing programmes

covering a wide range of social and current affairs issues

in Northern Ireland;

- no attempt has been made by the State to justify the

difference in legal regulation of the electronic media and

newspapers;

- the Government have never explained why they reject the

views of the RTE Authority that the Order is overbroad in

scope;

- successive Ministers have refused to explain in Parliament

or elsewhere the rationale behind the Section 31 Order and its

annual renewal.

Article 3 of Protocol No. 1 to the Convention

The applicants complain under Article 3 of Protocol No. 1 that

the current Section 31 Order and previous Section 31 Orders enforced

during general parliamentary elections and European Parliament

elections in Ireland are a serious infringement to the free expression

of the opinion of the people and with the ability of the individual

applicants as journalists to ensure such free expression.

The individual applicants point out that they are also voters

in Irish general elections and European elections and have an

additional concern as journalists to ensure the free expression of the

people's opinion, as guaranteed by this provision. They state that

they do not support Sinn Fein and distinguish their complaint entirely

from any possible complaint which that organisation or its members

might be in a position to make. They point out, however, that Sinn

Fein is registered as a political party in the State and is lawfully

entitled to put forward candidates for general elections to the

national parliament.

The effect of the Section 31 Order has been that Sinn Fein

candidates cannot be interviewed by RTE. Moreover, there can be no

direct coverage of press conferences of Sinn Fein, including question

and answer sessions by journalists at such press conferences. In

addition, current affairs programmes, panel discussions, news

bulletins and question and answer programmes all exclude Sinn Fein

participation.

It is also submitted that Article 3 of Protocol No. 1 applies

to elections to the European Parliament. The individual applicants

complain that the above-mentioned restrictions of the interviewing of

Sinn Fein candidates also apply to these elections and that they were

required by the Section 31 Order to distort the "conditions which will

ensure the free expression of the opinion of the people" in violation

of this provision.

Article 14 in conjunction with Article 10 of the Convention and

Article 3 of Protocol No. 1

The applicants submit that the Section 31 Order also infringes

Article 14 in conjunction with Article 10 insofar as the individual

applicants are prohibited from broadcasting interviews with or

statements by, members (including elected representatives) of Sinn

Fein.

The applicants further complain of a breach of Article 14 in

conjunction with Article 3 of Protocol No. 1. They claim that the

current Section 31 Order and previous Section 31 Orders

discriminate on the grounds of political opinion against candidates

and elected representatives of a registered political party in the

State, Sinn Fein. They complain that as journalists and producers

working in RTE, in contrast with journalists in the print media, the

individual applicants are required to enforce this discrimination on

the basis of political opinion. They are unable to broadcast any

interview with or utterance by a member of Sinn Fein, regardless of

the content.

Article 13 of the Convention

The applicants further complain of a breach of Article 13 of

the Convention in that they have no effective remedy before a national

authority for the infringement of their rights under the Convention.

The constitutionality of the relevant legislation, and the power of

the Minister to issue and renew a Section 31 Order were upheld by the

Supreme Court in the case of The State (Lynch) v. Cooney (1982) IR

337. As a consequence the applicants have no effective remedy to

challenge the requirement that they comply with the terms of the

Section 31 Order and the guidelines issued by the RTE Authority

setting out procedures for the full implementation of the Order.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 August 1989 and

registered on 28 August 1989.

On 4 December 1989, the Commission decided to communicate the

application to the Government pursuant to Rule 42 para. 2 (b) of the

Commission's Rules of Procedure (former version) and to invite them to

submit written observations on the admissibility and merits.

The Government's observations were submitted on 18 May 1990

after two extensions of the time-limit and the applicants'

observations were submitted on 31 July 1990 after one extension of the

time-limit.

On 16 April 1991, the Commission held a hearing on the

admissibility and merits of the application at which the parties were

represented as follows:

For the Government

Ms. Emer Kilcullen, Department of Foreign Affairs, Agent

Mr. Harold A. Whelehan S.C., Counsel

Mr. J. Gerard Danaher B.L., Counsel

Ms. Finola Flanagan, Office of the Attorney General, Adviser

Mr. Thomas Kennington, Department of Tourism, Transport and

Communications, Adviser

For the Applicants

Mr. Frank Clarke S.C., Counsel

Mr. Kevin Boyle, Counsel

Miss Mary O'Toole, Counsel

Miss Anne M. Neary, Solicitor

Applicants

Ms. Betty Purcell

Mr. Seosamh O'Cuaig

Mr. Alex White

Mr. James J. Eadie (on behalf of the National Union of Journalists)

Mr. Patrick Keenan (on behalf of the Services Industrial

Professional Technical Union)

THE LAW

The applicants as victims

The Commission has first examined whether the applicants can

claim to be "victims" within the meaning of Article 25 para. 1

(Art. 25-1) of the Convention. According to this provision, the

Commission "may receive petitions ... from any person,

non-governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties of

the rights set forth in this Convention ...".

The Government contend that the trade union applicants cannot

claim to be victims of the alleged violations as the Section 31 Order

is not directed to them and has not been applied to their detriment.

They consider their complaints as an "actio popularis" aimed at

furthering the trade unions' campaign for the abolition of Section 31 of

the 1960 Act. The applicants submit that in a situation where all

members of a trade union are affected by a measure which they complain

infringes their Convention rights the union itself, as a collective of

its members, is directly affected by the measure and becomes a victim

within the meaning of Article 25 (Art. 25), particularly where the union

concerned has consistently asserted those rights on behalf of its

members. At the hearing, the applicants have also advanced the

argument that it is not only journalists that are affected by the

Section 31 Order but journalism as a profession: as professional

associations of their members the trade union applicants represent all

journalists in defending freedom of expression and in resisting and

challenging censorship.

The Commission cannot espouse that argument. In order to

satisfy the conditions of Article 25 (Art. 25), an applicant must be able to

demonstrate that he himself has been affected by the alleged breach of

the Convention. In the present case, the measure complained of does

not affect the rights of the applicant unions themselves: the

Section 31 Order does not refer to the exercise of any of their

rights. The fact alone that the trade unions consider themselves as

guardians of the collective interests of their members does not

suffice to make them victims within the meaning of Article 25

(Art. 25) (cf. No. 9900/82, Dec. 4.5.83, D.R. 32 p. 261; No. 9939/82,

Dec. 4.7.83, D.R. 34 p. 213; No. 10733/84, Dec. 11.3.85, D.R. 41 p.

211).

It follows that insofar as the application is brought by the

two trade unions, it is incompatible ratione personae with the

provisions of the Convention and must be rejected in accordance with

Article 27 para. 2 (Art. 27-2) of the Convention.

The Government also submit that the individual applicants

cannot claim to be victims as the Section 31 Order is directed to the

RTE Authority and not to them. They argue that the applicants are

free to receive and impart any information in their individual and

personal capacity. If, as they allege, they are affected by the

Order it is only by virtue of their employment by the RTE Authority

and its adherence to the terms of the Order; as employees of RTE they

are bound by the rules and regulations of that organisation.

The Commission sees no force in this argument. All the

individual applicants are full-time broadcasting journalists or

producers of radio and television programmes. As employees of RTE

they are bound to comply with the Section 31 Order, in accordance with

the guidelines issued by their employer. The exercise of their

freedom to receive and impart information is directly affected by the

terms of the Order, and they face disciplinary action for failure to

comply with it.

The 17 individual applicants can therefore claim to be victims

of the alleged violations within the meaning of Article 25 para. 1

(Art. 25-1) of the Convention.

Exhaustion of domestic remedies

The Government contend that the application fails to satisfy

the requirement under Article 26 (Art. 26) of the Convention that "the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law". They submit that the individual applicants had a

remedy available to them as the Irish courts could review any Order

made under Section 31. They refer in this respect to the decision of

the Supreme Court in the matter of The State (Lynch) v. Cooney (1982)

I.R. 337, pointing out that this case concerned the validity of a part

of a Section 31 Order - made by the Minister of Justice on 9 February

1982 - which prohibited party political broadcasts by Sinn Fein and

had therefore no direct bearing on the issues raised by the

applicants: the question whether the Order was an unjustified

interference with the right to freedom of expression or the right to

vote of any person other than a candidate in an election had not been

adjudicated upon. The applicants have therefore not exhausted

available domestic remedies in respect of the complaints they raise in

their application. Refuting this argument, the applicants point out

that in the Lynch case the Supreme Court had unequivocally endorsed

the Minister's justification for issuing the Section 31 Order in 1982

and that nothing in the development of the state of affairs in Ireland

suggests that the courts would find otherwise if the current Order

were to be challenged by way of judicial review, particularly since

the applicants do not contest the Minister's good faith in forming the

opinion underlying the Order but whether the Minister should be

entitled to exercise the powers which he has upon forming that

opinion. They argue, therefore, that a renewed challenge would be

devoid of any chance of success and constitute futile proceedings.

In the Commission's opinion, the applicants have convincingly

established that in view of the Supreme Court's clear decision in the

Lynch case, upholding the validity of a Section 31 Order largely

identical to the one contested in the present case, a renewed

challenge would have offered no prospect of success.

The Commission has consistently held that the rule of

exhaustion of domestic remedies requires the use of only those

remedies which are capable of providing redress for the complaints

submitted (cf. Nos 8805/79 and 8806/79, Dec. 7.5.81, D.R. 24 p. 144

with further references). The complaints of the individual applicants

cannot therefore be rejected in accordance with Article 27 para. 3

(Art. 27-3) of the Convention as being inadmissible under Article 26

(Art. 26).

Article 10 (Art. 10) of the Convention

The individual applicants complain that the Section 31 Order

as applied to them constitutes an unjustifiable interference with

their freedom of expression as it is a serious infringement of their

right to receive and to impart information without unnecessary

interference by public authority. They invoke Article 10 (Art. 10) of the

Convention which 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 ...

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

duties and responsibilities, 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."

The Government submit that the restriction, if any, on the

exercise of the applicants' freedom of expression is marginal and in

any case prescribed by law and - in the circumstances pertaining in

Ireland with regard to terrorist organisations - necessary for

protecting national security, territorial integrity and public safety,

and for preventing disorder and crime, thus fully in accordance with

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

In support of their contention, the Government have submitted

documentary material on the extent of terrorist violence in Ireland,

in Northern Ireland and elsewhere in Europe, the support of Sinn Fein

for the activities of the IRA and the involvement of other

organisations enumerated in the Section 31 Order.

The Commission notes on the question of interference that,

although the Ministerial Order is not addressed to the applicants but

to their employer, the RTE, it produces serious effects on the

applicants' work as journalists and producers, by virtue of the

guidelines issued by their employer which they have to observe: they

cannot broadcast interviews, or reports of interviews, with

representatives of the listed organisations; they must use mute film

or stills to illustrate any reportage relating to any of the listed

organisations; they must obtain clearance from their superiors prior

to broadcasting any news feature or current affairs programme relating

to a matter connected with these organisations. As these prohibitions

apply to any statement of a representative of a listed organisation

regardless of the subject matter, compliance with the Order entails

restrictions and conditions not only on the choice of the material the

applicants may broadcast but also on their editorial judgment.

Considering the eminent role of journalists in the dissemination of

information and considering in particular that the ban applies to

interviews with spokesmen of a registered political party (Sinn Fein),

the Commission concludes that the Order constitutes an interference

with the exercise of the applicants' right under Article 10 para. 1

(Art. 10-1) of the Convention to receive and impart information and

ideas.

The question is whether this interference was justified, as

the Government maintain, by any of the restrictions which may be

imposed on the exercise of the freedom of expression in accordance

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

To be justified under this provision, the condition or

restriction must be "prescribed by law". The European Court of Human

Rights has repeatedly emphasised that "foreseeability" is one of the

requirements inherent in the phrase "prescribed by law" in Article 10

para. 2 (Art. 10-2). A norm cannot be regarded as a "law" unless it

is formulated with sufficient precision to enable the citizen - 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., Müller and Others judgment of 24 May

1988, Series A No. 133, p. 20, para. 29 with further references).

According to the applicants, the wording of the Section 31

Order lacks the requisite precision to satisfy this criterion. They

submit that the restriction is in such indefinite terms that it

curtails a whole range of choices of programmes, choices of persons to

be interviewed on programmes, balance in coverage of events and of

elections and balance in treatment of the subject matter of

programmes. The Goverment refute this allegation. They maintain that

the Order has been formulated with sufficient precision to enable the

persons concerned to regulate their conduct, and they point out that

the applicants were well aware of the consequences which a breach of

the provisions of the Order would entail.

In order to ascertain whether the impugned restrictions were

"prescribed by law" - in the sense given to that phrase in the Court's

case-law - the Commission has considered it necessary to examine

Section 31 of the Broadcasting Authority Act 1960 (as amended by

Section 16 of the Broadcasting Authority (Amendment) Act 1976) in

conjunction with the Order issued in accordance with that provision.

Section 31 alone would indeed give rise to objections as to the

requisite precision: it empowers the Minister to direct the authority

to refrain from broadcasting certain matters solely on the basis of

his "opinion that the broadcasting of a particular matter or any

matter of a particular class would be likely to promote, or incite to,

crime or would tend to undermine the authority of the State". But the

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

includes the Order issued pursuant to Section 31. It is a statutory

instrument which must be laid before the two Houses of the Oireachtas

(Parliament), and either House has the power to annul the Order

(Section 16, Subsection 1B of the Amendment Act). As the Order

describes in great detail not only the kind of material to which it

applies but also the manner in which such material may be conveyed to

listeners and viewers, the applicants cannot claim to be unaware of

the scope of application of the restrictions imposed upon them. It

follows that these restrictions were "prescribed by law" within the

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

In accordance with the Court's case-law, the Commission has

next to examine whether the impugned restrictions had an aim which is

legitimate under Article 10 para. 2 (Art. 10-2) and whether they were

"necessary in a democratic society" for achieving that aim (cf. Eur.

Court H.R., Sunday Times judgment of 26 April 1979, Series A No. 30,

p. 29, para. 45).

In examining whether the aim pursued by the Section 31 Order

can be said to be legitimate under Article 10 para. 2 (Art. 10-2), the

Commission notes that the applicants did not express disagreement with

the Government's statements concerning the seriousness of the

terrorist threat in Ireland and the involvement of the organisations

enumerated in the Section 31 Order, including Sinn Fein, which,

although a registered political party, has been qualified as "an

integral and dependent part of the apparatus of the Provisional

I.R.A., an illegal terrorist organisation which, by both its avowed

aims and its record of criminal violence, is shown to be committed to,

amongst other

things, the dismantling by violent and unlawful means of the organs of

State established by the Constitution" (Mr. Justice Henchy in the

Supreme Court's judgment in the case of The State (Lynch) v. Cooney

(1982) I.R. 337, at p. 381). In this context, the Commission notes

that the impugned Order does not prohibit the reporting of the

activities of any of the listed organisations; it only bans live

interviews with their spokesmen. It thus prohibits the use of the

broadcast media for the purpose of advocating support for

organisations which seek to undermine, by violence and other illegal

means, the constitutional order and the fundamental rights and

freedoms it guarantees. While it is true that Sinn Fein - as opposed

to the other organisations enumerated in the Order - is not a

proscribed organisation, it is also true that it condones the

terrorist activities of one of the listed organisations - which is

proscribed - and is closely associated with them, as the Supreme Court

has stated in the aforementioned Lynch judgment. The Commission notes

that under these circumstances it might well be possible under Irish

legislation to declare Sinn Fein an unlawful organisation. That it is

not so proscribed, is a matter of policy which is alone for the Irish

Government to determine. However, the decision not to declare Sinn

Fein an unlawful organisation does not imply an obligation on the

Government to grant Sinn Fein unimpeded access to the broadcast media.

By allowing, in Article 10 para. 2 (Art. 10-2), certain restrictions on the

exercise of the freedom of expression, the Convention recognises the

principle that no group or person has the right to pursue activities

which aim at the destruction of any of the rights and freedom

enshrined in it (cf. Article 17 (Art. 17) of the Convention).

The Commission therefore finds that the impugned restrictions

on the applicants' freedom to receive and impart information had a

legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention. It

observes in this context that the applicants themselves concede that

in principle the objectives of the Section 31 Order would appear to

come within the legitimate aims mentioned in Article 10 para. 2

(Art. 10-2) of the Convention, i.e. protecting the interests of

national security and preventing disorder and crime.

The Commission has next to examine whether the impugned

restrictions were "necessary in a democratic society" for achieving

these aims.

The applicants contest that the methods adopted by the

Government to achieve those legitimate aims are reasonable and

proportionate. They submit that these aims are adequately covered by

Section 18 Subsection 1A of the Broadcasting Authority Act 1960 (as

amended by Section 3 of the 1976 Act) which precludes the broadcasting

of "anything which may reasonably be regarded as being likely to

promote, or incite to, crime or as tending to undermine the authority

of the State". In their opinion the Government have ignored the role

of the professional broadcaster in critically presenting and analysing

the views of those who are interviewed. They contend therefore that

the restrictions imposed by the Section 31 Order were not "necessary

in a democratic society" as required by Article 10 para. 2 (Art. 10-2)

of the Convention.

In determining whether a measure complained of is "necessary

in a democratic society", the European Court of Human Rights has

consistently held that the adjective "necessary" implies the existence

of a pressing social need and that the Contracting States have a

certain margin of appreciation in assessing whether such a need

exists, but that this goes hand in hand with a European supervision

(Eur. Court H.R., Müller and Others judgment of 24 May 1988, Series A

No. 133, p. 21, para. 32, with further reference). In the present

case, it is therefore not the Commission's task to determine whether

other measures would have been more appropriate for achieving the

intended purpose, as the applicants maintain, nor to assess the

expediency and efficacy of the measures taken by the Minister. In

view of the Government's margin of appreciation, the Commission's sole

task is to examine whether the reasons underlying the Section 31 Order

are relevant and sufficient under Article 10 para. 2 (Art. 10-2) (cf.

Eur. Court H.R., Müller and Others judgment, loc. cit.), i.e. whether

the Minister had convincing reasons for assuming the existence of a

pressing social need for imposing the impugned restrictions on the

applicants.

In this connection, the Commission must emphasise, as the

Court has done on several occasions (cf. Eur. Court H.R., The Sunday

Times judgment of 26 April 1979, Series A No. 30, p. 40, para. 65),

that freedom of expression constitutes one of the essential

foundations of a democratic society. But it must also emphasise that

the exercise of that freedom "carries with it duties and

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

and that the defeat of terrorism is a public interest of the first

importance in a democratic society. In a situation where politically

motivated violence poses a constant threat to the lives and security

of the population and where the advocates of this violence seek access

to the mass media for publicity purposes, it is particularly difficult

to strike a fair balance between the requirements of protecting

freedom of information and the imperatives of protecting the State and

the public against armed conspiracies seeking to overthrow the

democratic order which guarantees this freedom and other human rights.

Called upon to consider whether the Section 31 Order can be

said to strike this balance in conformity with the provisions of

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

that the restrictions resulting from the Order do not refer to the

contents of radio and television programmes. As has already been

emphasised, their purpose is to ensure that spokesmen of the listed

organisations do not use the opportunity of live interviews and other

broadcasts for promoting illegal activities which aim at undermining

the constitutional order of the State. The restrictions are designed

to deny representatives of known terrorist organisations and their

political supporters the possibility of using the broadcast media as a

platform for advocating their cause, encouraging support for their

organisations and conveying the impression of their legitimacy.

The Commission recognises that some of these restrictions,

particularly the ban on live interviews with spokesmen of the listed

organisations, may cause the applicants inconvenience in the exercise

of their professional duties, but it does not, on balance, find that

they amount to restrictions on the applicants' right to freedom of

expression which are incompatible with the aforementioned requirements

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

In contemporary society radio and television are media of

considerable power and influence. Their impact is more immediate than

that of the print media, and the possibilities for the broadcaster to

correct, qualify, interpret or comment on any statement made on radio

or television are limited in comparison with those available to

journalists in the press. Live statements could also involve a

special risk of coded messages being conveyed, a risk which even

conscientious journalists cannot control within the exercise of their

professional judgment.

Given the limited scope of the restrictions imposed on the

applicants and the overriding interests they were designed to protect,

the Commission finds that they can reasonably be considered "necessary

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

(Art. 10-2) of the Convention.

It follows that the complaints made by the individual

applicants under Article 10 (Art. 10) are manifestly ill-founded and

must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of

the Convention.

Article 3 of Protocol No. 1 (P1-3) to the Convention

The individual applicants complain that the Section 31 Order,

insofar as it applies to broadcasts involving spokesmen for Sinn Fein,

a registered political party, and is enforced during Irish general

elections and elections to the European Parliament, violates the

provisions of Article 3 of Protocol No. 1 (P1-3) to the Convention which

read as follows:

"The High Contracting Parties undertake to hold free elections

at reasonable intervals by secret ballot, under conditions which

will ensure the free expression of the opinion of the people in

the choice of the legislature".

They submit that they are voters in both elections and as journalists

have an additional concern to ensure the free expression of the

people's opinion.

Referring to the judgment of the European Court of Human

Rights in the Mathieu-Mohin and Clerfayt case (Eur. Court H.R.,

Mathieu-Mohin and Clerfayt judgment of 2 March 1987, Series A No. 113,

p. 24, para. 54), the Government submit that Article 3 of Protocol

No. 1 (P1-3) implies the principle of equality of treatment of all citizens

in the exercise of their right to vote and their right to stand for

election, but that the applicants have not been prevented or hindered

in the exercise of that right. Furthermore they contend that

Article 3 of Protocol No. 1 (P1-3) is not applicable to elections to the

European Parliament.

While accepting that the individual applicants as voters may

be affected by the ban on broadcasts involving spokesmen for Sinn

Fein, the Commission does not find in their submissions any

substantiated claim that the principle of equality of treatment in the

exercise of their right to vote has been violated to their detriment.

The applicants submit that the effect of the Section 31 Order has been

that Sinn Fein candidates cannot be interviewed, that there can be no

direct coverage of press conferences of Sinn Fein, and that current

affairs programmes, panel discussions, news bulletins and question and

answer programmes all exclude Sinn Fein participation. These are

complaints which concern the applicants' position as broadcast

journalists which the Commission has already considered under

Article 10 (Art. 10) of the Convention. The guarantee, under

Article 3 of Protocol No. 1 (P1-3), of "conditions which will ensure

the free expression of the opinion of the people in the choice of the

legislature" implies - as the Court has stated (cf. its Mathieu-Mohin

and Clerfayt judgment, loc. cit.) - the principle of equality of

treatment of all citizens in the exercise of their right to vote, but

it does not give the citizen a right to demand that all political

parties competing in an election be granted radio and television

coverage or be granted the same amount of such coverage. The fact

that Sinn Fein is a registered political party makes no difference in

this respect. The registration of a party in Ireland is a mere

administrative formality; its only legal effect is that candidates who

are members of a registered party may add that party's name to their

own name on the ballot-paper. Registration is not a licence, nor does

it imply a recognition of the party or its activities. In any case,

since the applicants expressly state that they do not support Sinn

Fein, it is difficult to see how they can be disadvantaged as voters

by the broadcasting ban concerning Sinn Fein spokesmen.

The applicants also submit that, to be consistent in its

endeavour to prohibit Sinn Fein's access to the broadcast media, the

Government should have proscribed it as a party. In the Commission's

opinion, this is a question of policy which it is not called upon to

consider in the context of its examination of the application under

Article 3 of Protocol No. 1 (P1-3).

As the Commission has found that the applicants' complaint

with regard to Article 3 of Protocol No. 1 (P1-3) do not disclose any

appearance of a violation, it is not necessary to determine whether

the European Parliament can be considered as "legislature" within the

meaning of this provision (cf. Nos 8364/78, Dec. 8.3.79, D.R. 15

p. 247, 8612/79, Dec. 10.5.87, D.R. 15 p. 259, and 11123/84,

Dec. 9.12.87, unpublished).

It follows that the complaints made under Article 3 of

Protocol No. 1 (P1-3) are manifestly ill-founded and must be rejected

in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention

and Article 3 of Protocol No. 1 (P1-3)

The individual applicants complain that the Section 31 Order

infringes Article 14 in conjunction with Article 10 (Art. 14+10)

insofar as it applies to broadcasts involving Sinn Fein

representatives, and in conjunction with Article 3 of Protocol No. 1

(P1-3) insofar as it discriminates on the grounds of political opinion

against candidates and elected representatives of Sinn Fein.

The Commission has already found that the applicants'

complaints under Article 10 (Art. 10) of the Convention and Article 3

of Protocol No. 1 (P1-3) are manifestly ill-founded, also in respect

of the alleged discriminatory application of the Section 31 Order to

broadcasts involving Sinn Fein spokesmen.

It follows that the complaints made under Article 14 (Art. 14) in

conjunction with these provisions must also be rejected in accordance

with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly

ill-founded.

Article 13 (Art. 13) of the Convention

The individual applicants further complain under Article 13

(Art. 13) of the Convention that they have no effective remedy before

a national authority to challenge the Section 31 Order for violation

of their rights under the Convention. Article 13 (Art. 13) provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission first observes that, by complaining about the

effects of the Section 31 Order on their Convention rights, the

applicants in fact seek to challenge Section 31 of the Broadcasting

Authority Act 1960 (as amended). It is in this Act that the Minister

is given authority to restrict broadcasting by Order in the way he has

done. In this respect, the Commission recalls the case-law of the

Convention organs according to which Article 13 (Art. 13) does not go

so far as to guarantee a remedy allowing a legislative act as such to

be challenged (cf. Eur. Court H.R., James and Others judgment of 21

February 1986, Series A No. 98, p. 47, para. 85; Eur. Court H.R.,

Lithgow and Others judgment of 8 July 1986, Series A No. 102, p. 74,

para. 206).

Insofar as the complaints relate to the implementation of

Section 31 by Ministerial Order, the Commission observes that the

applicants themselves refer to the challenge of a previous Section 31

Order which led to a judgment of the Supreme Court (The State (Lynch)

v. Cooney (1982) I.R. 337). They thus concede that there is a remedy

under Irish law. They submit, however, that in view of the Supreme

Court's judgment in the Lynch case, their challenge of the current

Section 31 Order would offer no prospect of success.

In considering whether the remedy available under Irish law

satisfies the conditions of Article 13 (Art. 13) of the Convention in the

present case, the Commission recalls that in the Lynch case the

constitutionally guaranteed right to freedom of expression has been

considered by the High Court as well as by the Supreme Court. Both

courts have thus considered the alleged violation of a right which is

also guaranteed by the Convention in Article 10 (Art. 10). The Commission

therefore finds that there is a remedy under Irish law which enables

the applicants to invoke the alleged violation of their rights under

Article 10 (Art. 10) before a national authority. Whether this remedy

is likely to succeed depends on the appreciation of the merits of

their case by the Irish courts. The fact alone that their claims may

be unlikely to succeed does not mean that there is no effective remedy

within the meaning of Article 13 (Art. 13) of the Convention.

It follows that the complaint made under Article 13 (Art. 13)

must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of

the Convention as being manifestly ill-founded.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

ANNEX

List of individual applicants

Betty Purcell, resident in Dublin,

Brian O'Connell, resident in Billericay,

Colm Murray, resident in Dublin,

Sean Duignan, resident in Dublin,

Cathal Poirteir, resident in Dublin,

Cathal McCoille, born in 1952 and resident in Dublin,

Noelle O'Reilly, resident in Dublin,

Ronan O'Donoghue, born in 1957 and resident in Dublin,

Michael McCarthy, resident in Dublin,

Helen Shaw, born in 1962 and resident in Dublin,

Marian Finucane, resident in Dublin,

Roisin Boyd, resident in Dublin,

Brendan O'Brien, resident in Bray,

Peter Feeney, resident in Dublin,

Alex White, born in 1958 and resident in Dublin,

Anna Heussaff, resident in Dublin,

Seosamh O'Cuaig, resident in Connemara.

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PURCELL AND OTHERS v. IRELAND

PURCELL AND OTHERS v. IRELAND