CONCURRING OPINION OF JUDGE VALTICOS

(Translation)

Like the majority of the Court I consider that there has been no breach of Article 10 (art. 10) of the Convention, but for different, simpler reasons.

It seems to me that the issue raised is one that in all events does not come within the ambit of Article 10 (art. 10).  That provision refers to "freedom of expression", defined as including "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers".

Can the view really be taken that this case raises an issue of freedom of expression, and in particular of the imparting of information and ideas?  What was actually broadcast by the radio station in question? According to its own representative, Mr Minelli , at the public hearing on 21 November 1989 , it broadcast light music, variety programmes, news and programmes in which listeners could take part.  Apart from the news programmes, which were clearly bulletins of the type usual in broadcasts of this kind, these programmes were therefore essentially light entertainment and contained none of the kind of discussion or mere airing of views and expression of ideas or cultural or artistic events with which Article 10 (art. 10) is concerned.  Mr Minelli moreover specified that the programming left political problems untouched and aimed to provide entertainment but also an opportunity for the expression of personal opinions on personal matters.  This is far from the discussion of ideas and artistic expression.  Besides, the radio station's essentially commercial objective accounts for the emphasis on mere entertainment in its programmes.  Article 10 (art. 10) is certainly not designed to protect either commercial operations or mere entertainment.  I therefore conclude that no issue arises under it and that consequently there can be no question of a breach in this case.

[*]  Note by the registry: The case is numbered 14/1988/158/214. The first number is the case's position on the list of the 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.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 173 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] These principles have been clearly laid down by the United States Supreme Court: see Red Lion Broadcasting Co v. the Federal Communications Commission and US v. Radio Television News Directors Association (1969), 395 US 367, 23 LEd 2d 371, 89 SCt 1794; Columbia Broadcasting System v. Democratic National Committee (1973), 412 US 94, 36 LEd 2d 772, 93 SCt 2080; Federal Communications Commission v. National Citizens Committee for Broadcasting (1978), 436 US 775, 56 LEd 2d 697, 98 SCt 2896; Columbia Broadcasting System, American Broadcasting Companies & National Broadcasting Company v. Federal Communications Commission & al. (1981), 453 US 367, 69 LEd 2d 706, 101 SCt 2813; Federal Communications Commission v. League of Women Voters of California & al. (1984), 468 US 364, 82 LEd 2d 278, 104 SCt 3106; and City of Los Angeles & Department of Water and Power v. Preferred Communications (1986), 476 US 488, 90 LEd 2d 480, 106 SCt 2034.

[2] See on this point the case-law of the United States Supreme Court on "time, place and manner regulation" and, in particular, mutatis mutandis, Virginia State Board of Pharmacy & al. v. Virginia Citizens Consumers Council & al. (1976), 425 US 748, 48 LEd 2d 346, 96 SCt 1817, and Cox v. New Hampshire (1941), 312 US 569, 85 LEd 2d 1049, 61 SCt 762.

[3] See the following judgments: Handyside , 7 December 1976, Series A no. 24, pp. 22-24, §§ 48-50; The Sunday Times, 26 April 1979, Series A no. 30, pp. 36 and 38, §§ 59 and 62; Barthold , 25 March 1985, Series A no. 90, p. 25, § 55; Lingens , 8 July 1986, Series A no. 103, pp. 25-26, §§ 39-40; and Müller and Others, 24 May 1988, Series A no. 133, p. 21, § 32.

[4] See the following judgments: Case "relating to certain aspects of the laws on the use of languages in education in Belgium", 23 July 1968, Series A no. 6, p. 24, § 10; Marckx , 13 June 1979, Series A no. 31, p. 16, § 33; Rasmussen, 28 November 1984, Series A no. 87, p. 14, § 38; Abdulaziz , Cabales and Balkandali , 28 May 1985, Series A no. 94, pp. 35-36, § 72; James and Others, 21 February 1986, Series A no. 98, p. 44, § 75; Lithgow and Others, 8 July 1986, Series A no. 102, p. 66, § 177; Gillow , 24 November 1986, Series A no. 109, pp. 25-26, § 64; and Inze , 28 October 1987, Series A no. 126, p. 18, § 41.

[5] See paragraphs 69 and 70 of the judgment.

[6] See paragraphs 26-32 of the judgment and the extract of the Swiss Federal Court's decision of 14 June 1985 , reproduced in paragraph 25.

[7] Barfod judgment of 22 February 1989 , Series A no. 149, p. 12, § 28. (See also the Barthold judgment previously cited, p. 26, § 58, and the previously cited judgments in the cases of Handyside , p. 23, § 49, The Sunday Times, p. 40, § 65, Lingens , p. 26, § 41, and Müller and Others, p. 21, § 32.

[8] See paragraphs 149-157 of the Commission's report.

[9] See paragraphs 19 and 20 of the judgment.

[10] According to Mr Jacot-Guillarmod's reply to Mr Walsh, at the end of the hearing on 21 November 1989 , there were not very many subscribers to this network.

[11] See paragraph 11 of the judgment.

[12] See paragraphs 13-16 of the judgment.  See also the Federal Court's decision cited in paragraph 25.