THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44802/98 by UNITED CHRISTIAN BROADCASTERS LTD against the United Kingdom

The European Court of Human Rights (Third Section)] , sitting on 7 November 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , a nd Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 30 September 1998 and registered on 3 December 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a charitable company registered in the United Kingdom. It is represented before the Court by Ms R. Boothroyd of Nicholson Graham and Jones, a firm of solicitors practising in London, together with Mr D. Pannick QC and Ms M. Carss -Frisk, barristers practising in London. The Government are represented by Mr C. Whomersley of the Foreign and Commonwealth Office.

A. Particular circumstances of the case

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

The applicant is a charity whose main objective is to promote and bring into effect national religious broadcasting in the United Kingdom and Ireland.

On 23 March 1998 the Radio Authority, a statutory body which regulates radio broadcasting and allocates radio licences, announced that it was inviting applications for the licence for the first commercial digital radio multiplex. The deadline for applications was 23 June 1998. On 24 March 1998 the applicant wrote expressing interest in applying for a licence. In its letter in response, dated 2 April 1998, the Authority explained that the relevant statutory provisions prevent the award of a licence to religious bodies, and for this reason refused to send an application form to the applicant.

B. Relevant domestic law and practice

The United Kingdom’s public broadcasting service, the BBC, provides five national and a number of local radio services. In addition, independent bodies may operate radio services subject to the grant of a licence by the Radio Authority under the statutory regime set out in the Broadcasting Acts 1990 and 1996.

There is currently available only sufficient suitable spectrum to support three analogue national independent radio services. The Broadcasting Act 1990 (“the 1990 Act”) states, in section 85(2)(a), that the Authority must ensure in the grant of those licences:

“a diversity of national services each catering for tastes and interests different from those catered for by the others and of which -             

( i ) one is a service the greater part of which consists in the broadcasting of spoken material, and             

(ii) another is a service which consists, wholly or mainly, in the broadcasting of music which, in the opinion of the Authority, is not pop music;”

The analogue national independent radio licences are currently held by Talk Radio, Classic FM and Virgin 1215 (a rock and pop music station).

In addition, there is one frequency available for an independent national digital multiplex. The licence for the service is awarded for twelve years after open competition. The first and only such licence became available in March 1997, but, because of the high costs of operating a digital multiplex, there was only one candidate, Digital One, which was awarded the licence in October 1998.

It would be possible to make available frequency space for more national digital and analogue radio services if the number of local stations was reduced. However, during the passage of the 1990 and 1996 Acts Parliament took the view that as many local services as possible should be licensed, in order better to meet consumer demand.

The 1990 Act provides in Schedule 2, Part II, paragraph 2(1) that:

“Subject to subparagraph (2), the following persons are disqualified persons in relation to a licence granted by ... the Radio Authority –             

(a) a body whose objects are wholly or mainly of a religious nature ... .”

Political organisations are also prohibited from holding national radio licences.

However, by virtue of subparagraph 2(2), a body who is disqualified under subparagraph 2(1) may nevertheless be granted a licence other than a national licence (for example, a local radio licence) if the Authority is satisfied that this is appropriate. By the end of 1999, the Authority had granted 242 local radio licences, including one to a London-based Christian station.

COMPLAINTS

The applicant complains that, because of the statutory ban on the award of a national radio licence to a body whose objects are wholly or mainly of a religious nature, it was prevented from having its application for a digital multiplex radio licence considered on the merits. It alleges a breach of Articles 10 of the Convention, taken alone and in conjunction with Articles 9 and 14.

THE LAW

1. The applicant contends that the provisions of the 1990 Act, Schedule 2, Part II, paragraph 2(1), give rise to a breach of its rights under Article 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.             

  2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the … rights of others, … .”

In their written observations the Government point out that capacity for national radio service, both analogue and digital, is very limited. They submit that the aim of the restriction on the holding of a national licence by a religious group is to promote the efficient use of scarce resources in order to safeguard pluralism in the media, cater for a variety of tastes and interests and avoid discrimination as between the many different religions practised in the United Kingdom. In contrast, there is no restriction on the grant of local or satellite radio licences to a religious organisation, since such services are not subject to the same constraints on spectrum capacity and can be targeted at a variety of minority audiences.

The applicant does not contend that it should be awarded a national radio licence; its complaint concerns the fact that it is prevented even from applying. The Government’s claim that the restriction promotes pluralism and quality of radio services, cannot, in the applicant’s submission, be sustained, since however weak any rival contender for a national licence may be, and whether or not the contender appeals to more than a small proportion of listeners, the applicant is denied the opportunity to compete and have its application judged on the merits. According to the applicant, the ban is not necessary to achieve the aim cited by the Government since various provisions of the Broadcasting Acts 1990 and 1996 already require the Radio Authority to award licences in the manner best calculated to facilitate the provision of a wide range of quality programmes appealing to a variety of tastes and interests.

It is common ground that the prohibition on the applicant, as a religious body, from applying for a national radio licence amounts to an interference with its right to freedom of expression. The applicant does not suggest that the rule, provided for by statute, is not “prescribed by law.” The Court must however examine whether the restriction pursues a legitimate aim and is proportionate and “necessary in a democratic society.”

It notes that for technical reasons the amount of radio spectrum available for broadcasting in the United Kingdom - in common with other European countries - is limited. Parliament has decided that, in allocating access to the spectrum, local radio should be prioritised. The applicant does not criticise this policy which would in any event appear to fall well within the State’s margin of appreciation. As a result, however, the restricted capacity for national radio broadcasting permits the grant of only three independent national analogue licences and one independent national digital licence.

The Court recalls that the third sentence of Article 10 § 1 permits States to regulate broadcasting by a licensing system based on such criteria as the nature and objectives of the proposed station and its potential audience (see the Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, § 32). Moreover, it considers that the aim of the rule prohibiting religious bodies from applying for a national radio licence is to attempt to ensure that the limited spectrum available for national radio broadcasting is distributed in such a way as to satisfy as many radio listeners as possible. The restriction can, therefore, be said to pursue the aim of protecting the rights of others, within the meaning of Article 10 § 2 (see, mutatis mutandis , No. 38218/97, Brook v. the United Kingdom, Third Section, decision of 11 July 2000).

In assessing whether the restriction is proportionate to the aim pursued, the Court observes that States have a margin of appreciation in this area, subject, however, to strict supervision because of the importance of the right to freedom of expression (see the Groppera Radio AG and Others v. Switzerland judgment of 20 June 1989, Series A no. 173, § 61, and the above-mentioned Informationsverein Lentia and Others judgment, § 35). Although broadcasting enterprises have no guarantee of any right to a licence under the Convention, the rejection by a State of a licence application must not be manifestly arbitrary or discriminatory and the necessity for any restriction must be convincingly established (see the Autronic AG v. Switzerland judgment of 22 May 1990, Series A no. 178, § 61, and No. 10746/94, Dec. 16.10.86, D.R. 49, p. 126).

The Court notes that the restriction on applying for a national radio licence applies not only to the applicant but to all “ bod [ ies ] whose objects are wholly or mainly of a religious nature” and also to all political organisations. The Government have submitted that, in a country such as the United Kingdom which is the home to such a wide diversity of religious faiths and political beliefs, the rule is necessary to ensure that any one viewpoint is not allowed to dominate to the disadvantage of others. It is well-established in the Court’s case-law under Article 9 of the Convention that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on the freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, § 33). The Court does not consider that the restriction in question, the object of which is to avoid discrimination, can be said to be arbitrary or to fall outside the State’s margin of appreciation.

It is, moreover, significant that the limitation on the applicant’s right to freedom of expression through radio broadcasting is far from being absolute, since there is no restriction on religious bodies applying for and being granted licences for local radio broadcasting.

Finally, the Court recognises that, rather than contending that it should be awarded a national radio licence, the applicant’s complaint focuses on the fact that it is prevented even from applying and having its application examined on the merits. However, given the above finding that it falls within the State’s margin of appreciation to attempt to avoid discrimination between different religious groups by denying to each of them the opportunity to monopolise limited national broadcasting resources, the Court does not consider that it makes any difference whether the decision to refuse a national licence takes effect from the outset or following the submission of an application.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The Court does not find that the complaints under Article 10 taken in conjunction with Articles 9 and 14 of the Convention raise any new issue. It does not, therefore, consider it necessary to examine these complaints separately. It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President