THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38218/97 by Trevor BROOK against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 11 July 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 ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 August 1997 and registered on 15 October 1997,

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 British national, born in 1949 and living in Surrey, England.

A. The circumstances of the case

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

The applicant, who has run a company specialising in the research, design and manufacture of equipment for the broadcasting industry since 1967, wanted to set up a short wave radio station which would broadcast scientific, technological and media news. None of his proposed programmes had any political content, but were aimed at an audience interested in the technical side of radio. The BBC World Service has a short wave radio licence to broadcast in the United Kingdom and a few other independent stations are also licensed, for example, Voice of America.

The applicant wrote to the Foreign and Commonwealth Office on 5 August 1986 (having been told on the telephone that this was the relevant department) to apply for a short wave radio licence. Over the next ten years, the applicant wrote about 150 letters in pursuit of his licence to the Radio Authority, the Home Office and other relevant entities. The Government's line of reply was to acknowledge the applicant's interest without giving any definitive response to his request. On 18 March 1997, the Department of National Heritage wrote to the applicant saying:

"...the Department continues to consider the broadcasting policy issues which your proposal for the licensing of short wave frequencies has raised.

I am sorry that there has been such a long interval since your original proposal was received and that you still await a decision.  ...

While I am sorry that the resolution of other domestic broadcasting policy issues have been given greater priority than your request to use short wave frequencies, I am not in a position to give you a firm decision on your proposal. The Department is, however, looking at your ideas and we are discussing them with the Radiocommunications Agency which has overall responsibility for the use of the radio spectrum.

I shall write to you again when a decision has been taken."

Following this letter, the applicant applied for judicial review of the failure by the Department of National Heritage to take a final decision. In his affidavit to the High Court, the applicant explained that setting up a station would be a much more difficult prospect now and he would no longer wish to do so, but that this was only as a result of the Government's refusal to reach a clear decision at an early stage. Leave to apply was refused by the High Court on 26 June 1997, there being no arguable basis for judicial review. Mr Justice Tuckey , refusing leave, observed:

"Whilst I can understand your frustration at the failure of the authorities concerned to consider your proposals more favourably and speedily to the point where (as I understand it) it is now really too late to do anything, I am afraid I can see no arguable basis for judicial review."

B. Relevant domestic law and practice

The Radiocommunications Agency (“the Agency”), has overall responsibility for the management of the civil electromagnetic spectrum in the United Kingdom, and an obligation to ensure that it is used efficiently. The Agency represents the United Kingdom at the International Telecommunications Union (“ITU” – an agency of the United Nations), who order the way in which the radio spectrum can be shared effectively between nations, such that one country’s transmissions do not interfere with those of another. The Agency also has responsibility for deciding how the civil use of the radio spectrum in the United Kingdom is divided between different users, such as broadcasting, telecommunication, public safety services (Police, Ambulance etc) and hobby radio, etc.

A quantity of the radio spectrum is allocated for radio broadcasting purposes. This is in turn divided by the Secretary of State for Trade and Industry (under the provisions of the Broadcasting Acts of 1990 and 1996) between the BBC (the public service broadcaster) and the Radio Authority (“the Authority”). The Authority is a body established by statute (section 83 of the Broadcasting Act 1990), and is responsible for licensing and regulating independent radio services within the United Kingdom. It has statutory duties to increase choice for different tastes and interests, to encourage range and diversity and to ensure fair and effective competition in the provision of sound broadcasting.

All radio transmissions require either a licence or a licence exemption under the Wireless Telegraphy Act 1949 (as amended) and, for commercial broadcasts, a licence under the Broadcasting Acts of 1990 and 1996. Licences are awarded by the Authority under open competition. In general terms national licences are considered on the basis of the highest cash bid, whereas the award of local licences takes into account the needs of the community to be served. The Authority seeks the agreement of the BBC and the Agency, so that neither United Kingdom broadcasting services nor non-broadcasting users of the radio spectrum will be adversely affected. In addition the agreement of neighbouring countries is sought. After these negotiations, the Agency is able to issue a licence under the Wireless Telegraphy Act 1949. This system of licensing does not extend to short wave frequencies.

Under section 97 of the Broadcasting Act 1990, it is a criminal offence to provide an independent radio service without an appropriate licence.

COMPLAINTS

The applicant complains under Article 10 of the Convention that the failure by the Government to grant him a short wave broadcasting licence is an unjustified interference with his right to impart information.

THE LAW

The applicant complains that he was not granted a short wave broadcasting licence. He relies on 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, 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 contend that the applicant has made no application for a licence or, alternatively, that any application which may be inferred from correspondence, has not been refused. Further the Government submit that even if it be held that there was a licence application which was refused, then this did not amount to interference with the applicant’s right to freedom of expression under Article 10 § 1.

The Government point out that the applicant is free to apply for an independent national licence or a local radio licence for AM or FM frequencies, or for a satellite radio licence. Alternatively, he could use short wave frequencies siting his transmissions in another country for reception in the United Kingdom. The Government also comment that the radio spectrum is a scarce resource whose characteristics fit it for international broadcasting and not for national broadcasting. Further, the Government submit that the licensing measures were prescribed by law, pursued a legitimate aim and were necessary in a democratic society, inter alia, by regulating a limited spectrum and protecting those awarded licences from illegal broadcasts which might interfere with reception.

The applicant replies that the alternative frequencies and other means of transmitting, as suggested by the Government, are inappropriate for his purposes (namely for a programme with a niche audience intended to be received by short wave portable radios). He does not accept the alleged shortage of short wave broadcasting bands, and notes that there have always been vacant slots at certain times of the day on certain frequencies on such bands.

The Court notes the third sentence of Article 10 § 1 of the Convention, and recalls that States are permitted to control, by a licensing system, the way in which broadcasting is organised in their territories, but that licensing measures must comply with the requirements of Article 10 § 2 (see Groppera Radio AG and Others v. Switzerland judgment of 20 June 1989, Series A no. 173, p. 24 § 61). The Contracting States' margin of appreciation in this area involves strict supervision because of the importance of the right to freedom of expression (see Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, p. 15 § 35). Further the necessity for any restriction must be convincingly established (see Autronic AG v. Switzerland judgment of 22 May 1990, Series A no. 178, p. 26 § 61).

The Court also recalls that 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 (No. 10746/94, Dec. 16.10.86, D.R. 49, p. 126).

In the present case, the Court notes at the outset that it is not clear at which point of the applicant’s discussions with the various authorities an interference with his right to freedom of expression could be said to have crystallised: it may well be that the interference took place at some stage of the ten years’ discussions with the authorities before his unsuccessful application for judicial review. If this were the case, then the application would be out of time. However,   even assuming that there has been an interference with the applicant’s freedom of expression, with which the Court has jurisdiction to deal, the necessity for a licence falls within the permitted exception in the third sentence of Article 10 § 1 of the Convention. The question then is whether the licensing regime and the failure to grant the applicant a short wave licence satisfy the requirements of Article 10 § 2.

The system of licensing was set up by statute and it has not been argued by the applicant that it was not “prescribed by law.” The Court must then consider whether the failure to the grant a short wave licence to the applicant pursued a legitimate aim and was proportionate and “necessary in a democratic society.”

The Court takes into account that the spectrum for short wave is finite and that there is a legitimate interest in prioritising short wave for international broadcasts and ensuring that clear reception is maintained for those who make such broadcasts. The failure to grant the applicant a short wave licence may therefore be said to have pursued the aim of protecting the rights of others, within the meaning of Article  10 § 2 of the Convention.

The Court further takes into account that in general terms short wave, due to, inter alia , the need for frequent re-tuning to maintain reception, is not the preferred option for the vast majority of commercial domestic radio stations. Moreover, individuals like the applicant or commercial enterprises are able to apply for national or local radio licences on either AM or FM frequencies, or for satellite radio licences. In addition, there is the possibility of using short wave frequencies if transmissions are sited in another country for reception in the United Kingdom.

Taking all these factors into account, the Court considers that it is proportionate to exclude short wave frequencies from the licensing regime. Even assuming that the applicant may be deemed to have applied for and been refused a licence, the Court does not consider that such refusal, or the fact the applicant was unable to exploit a relatively novel business venture using short wave, can of itself amount to a violation of Article 10 of the Convention.

The Court notes in this respect that the present case is to be distinguished from the case of Informationsverein Lentia and Others v. Austria judgment of 24 November 1993 (Series A no. 276) where there was a monopoly of all broadcasting and radio stations held by the State. In contrast, the present case concerns a restriction regarding only short wave frequencies.

The Court concludes that the purported interference with the applicant’s freedom of expression may be said to have been necessary in a democratic society, pursuing, in a proportionate manner, the aim of protecting the rights and freedoms of others.

It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 34 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President