DISS ENTING OPINION OF JUDGE LOHMUS

1. I am unable to agree with the conclusion of the majority that the interference with the applicant ’ s right to freedom of expression was "necessary in a democratic society". 2. The British Board of Film Classification and the five-member panel of the VAC took the view that the applicant would commit an offence of blasphemy if his video work Visions of Ecstasy were to be distributed (see paragraph 20 of the judgment). 3. In cases of prior restraint (censorship) there is interference by the authorities with freedom of expression even though the members of the society whose feelings they seek to protect have not called for such interference. The interference is based on the opinion of the authorities that they understand correctly the feelings they claim to protect.  The actual opinion of believers remains unknown.  I think that this is why we cannot conclude that the interference corresponded to a "pressing social need". 4. The law of blasphemy only protects the Christian religion and, more specifically, the established Church of England (see paragraph 28 of the judgment).  The aim of the interference was therefore to protect the Christian faith alone and not other beliefs. This in itself raises the question whether the interference was "necessary in a democratic society". 5. As the Court has consistently held, the guarantees enshrined in Article 10 (art. 10) apply not only to information or ideas that are favourably received or regarded as inoffensive, but also to those that shock or disturb. Artistic impressions are often conveyed through images and situations which may shock or disturb the feelings of a person of average sensitivity. In my view, the makers of the film in issue did not exceed the reasonable limit beyond which it can be said that objects of religious veneration have been reviled or ridiculed. 6. The majority has found that in the field of morals the national authorities have a wide margin of appreciation.  As in that field, "there is no uniform European conception of the requirements of ‘ the protection of the rights of others ’ in relation to attacks on their religious convictions" (see paragraph 58 of the judgment). The Court makes distinctions within Article 10 (art. 10) when applying its doctrine on the States ’ margin of appreciation. Whereas, in some cases, the margin of appreciation applied is wide, in other cases it is more limited.  However, it is difficult to ascertain what principles determine the scope of that margin of appreciation.

[1] The case is numbered 19/1995/525/611. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-V), but a copy of the Commission's report is obtainable from the registry.

[4] Judgment of 26 November 1991, Series A no. 216, p. 46

[5] Section 7 of the Video Recordings Act 1984

[6] Section 4 of the Act

[7] See paragraph 29 of the present judgment