Information Note on the Court’s case-law 31

June 2001

VgT Verein gegen Tierfabriken v. Switzerland - 24699/94

Judgment 28.6.2001 [Section II]

Article 10

Article 10-1

Freedom of expression

Refusal of television authority to broadcast advertisement: violation

The applicant is an association for the protection of animals. It prepared a television advertisement denouncing the industrial rearing of pigs and encouragin g people to eat less meat by showing successively wild pigs in a forest and pigs hemmed in behind bars in an industrial rearing farm. The applicant sent the videotape of the advertisement to the authority responsible for the broadcasting of commercials on Swiss national television, the Television Commercial Company (a company established under private law), which replied that it would not broadcast it on account of its "clear political character". In order to be able to file an appeal, the applicant associa tion asked the authority to issue a formal decision of refusal. The Television Commercial Company answered that it was not empowered to do so. The applicant association turned to the Independent Radio and Television Appeal Board, which declared that it cou ld only deal with complaints about programmes that had already been broadcast. The complaint was transferred, however, to the Federal Office of Communication, which informed the applicant association that the Television Commercial Company was free in its c hoice of advertisements. The applicant association unsuccessfully filed a complaint with the Federal Department for Transport and Energy.  Finally, the Federal Court rejected its administrative law appeal.

Law : Government's preliminary objection (abuse of the right of petition) – With regard to the assertion that the applicant had, when lodging the application, stated that an administrative appeal was not open but had at the same time introduced such an appeal, the Court recalled that it was not excluded th at supplements to an initial application might relate in particular to the proof that the applicant had complied with the conditions of Article 35 § 1, even after the lodging of the application, provided it was before the decision on admissibility. It saw no reason to reconsider these issues and dismissed the preliminary objection.

Article 10 – The Commercial Television Company and later the Federal Court relied on the prohibition on "political advertising" in Swiss law, which made lawful the treatment of w hich the applicant association complains. In effect, political speech by the applicant association was prohibited and the responsibility of the respondent State may be engaged on that basis. The refusal to broadcast therefore constituted an interference by a public authority. The advertisement fell outside the regular commercial context in the sense of inciting the public to purchase a particular product; rather, by exhorting reduced meat consumption, it reflected controversial opinions pertaining to modern society in general and lying at the heart of various political debates. As such, the advertisement could be regarded as "political" and it was foreseeable that it would not be broadcast. Moreover, it pursued the legtimate aim of protecting the rights of o thers, in particular by preventing financially strong groups from obtaining an advantage in politics. As to the necessity of the interference, the State's margin of appreciation is particularly essential in commercial matters, but since in this case what w as at stake was participation in a debate affecting the general interest rather than purely commercial interests, the margin of appreciation is reduced. The limitation of the prohibition on political avertising to radio and television broadcasts, and not t o other media, on the basis of television's stronger effect on the public, does not appear to be of a particularly pressing nature. Moreover, it has not been argued that the applicant association itself constituted a powerful financial group which aimed at endangering the independence of the broadcaster, unduly influencing public opinion, or endangering the equality of opportunity between the different forces of society. Indeed, all it intended to do was participate in an ongoing general debate on animal pr otection. A prohibition of "political advertising" may be compatible with Article 10 in certain situations, but the reasons must be relevant and sufficient in respect of the particular interference and it has not been shown in a relevant and sufficient man ner why the grounds generally advanced in support of the prohibition of political advertising also justified the interference in the particular case. The domestic authorities did not invoke the disturbing nature of any particular sequence or of any particu lar words in the advertisement as a ground for refusing to broadcast, so it mattered little that the pictures and words may have appeared provocative or even disagreeable. The applicant association, aiming at reaching the entire Swiss public, had no other means than national television at its disposal, since regional private television channels and foreign television stations cannot be received throughout Switzerland, and the Commercial Television Company was the sole instance responsible for the broadcasti ng of commercials within national programmes. Various possibilities are conceivable as regards the organisation of broadcasting television commercials, but it is not the Court’s task to indicate which means a State should utilise in order to comply with it s Convention obligations.

Conclusion : violation (unanimously)

Article 13 – The administrative law appeal was an effective remedy.

Conclusion : no violation (unanimously).

Article 14 – The different aims of advertisements by the meat industry and that of the applicant means that they are not in comparable situations.

Conclusion : no violation (unanimously).

Article 41 – The Court made an award in respect of costs and expenses .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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