Advertising and public morals: Sekmadienis

In Sekmadienis Ltd v Lithuania [2018] ECHR 112, the applicant company complained about being fined for advertising clothes using references to Jesus and Mary.

Background

In late 2012 the company ran a campaign advertising its clothes which used a male and female model with halos, the man in jeans and with tattoos and the woman in a white dress and a string of beads. The ads were followed by the captions, “Jesus, what trousers!”, “Dear Mary, what a dress!” and “Jesus and Mary, what are you wearing!”.

Following complaints to the State Consumer Rights Protection Authority, the company was fined in 2013 for publishing advertisements which were contrary to public morals, in breach of the national advertising law. The company’s subsequent complaint to the regional administrative court and an appeal to the Supreme Administrative Court were dismissed: the Supreme Administrative Court held that

“symbols of a religious nature occupy a significant place in the system of spiritual values of individuals and society, and their inappropriate use demeans them [and] is contrary to universally accepted moral and ethical norms”.

In the aftermath of this final judgment, the President of the Supreme Administrative Court applied to re-examine the case on the basis that there might have been an unlawful or disproportionate restriction on Sekmadienis Ltd’s freedom of expression; however, the court refused to reopen the proceedings.

Relying on Article 10 ECHR (right to freedom of expression), Sekmadienis Ltd argued that the fine for breach of public morals could not be considered “necessary in a democratic society”.

The arguments

The Government did not dispute that the applicant company’s right to freedom of expression had been interfered with but argued that the interference had been justified under Article 10 §2 [53]. The interference had been in accordance with the law – Article 4 §2(1) of the Law on Advertising – and the requirements of that provision had been sufficiently accessible and foreseeable. The concept of “public morals” was necessarily broad and its contents could change over time, so it was impossible to provide a precise definition of public morals in law [53].

The Government acknowledged that Article 4§ 2(1) did not prohibit the use of religious symbols or motifs in advertising per se, – but “morals” could be based on religious views, especially taking into account the historic importance of Christianity in Lithuania and the number of Christians among the population. It should therefore have been sufficiently clear to Sekmadienis that advertisements that insulted the feelings of religious people were contrary to the Law on Advertising [53]. The aim pursued by the interference had been twofold: to protect the morals arising from the Christian faith and shared by a substantial part of the Lithuanian population and to protect the right of religious people not to be insulted on the grounds of their beliefs [54].

Further, the interference had been necessary and proportionate to the legitimate aims sought. The advertisements had been purely commercial in nature and had not sought to contribute to any public debate affecting the general interest. Nor was there an international or European consensus on the contents of morality for the purpose of Article 10 §2 ECHR, and the domestic authorities were better placed than the international judge to give an opinion on the exact content of the requirements of morals in their country [55]. The majority of Lithuanians was Christian and the understanding of “public morals” in Lithuanian society was closely connected to the morals stemming from the Christian religious tradition [56].

Lastly, the domestic courts had carried out a thorough analysis of the necessity of the impugned measure, in line with the principles developed in Strasbourg case-law and Sekmadienis had been given a fine which had been close to the minimum provided in law – so there were no grounds to find that the interference had not been proportionate [58].

Sekmadienis argued that the interference had not been “prescribed by law” within the meaning of Article 10 §2 ECHR because, at the time when the ads were published, the Law on Advertising had not prohibited religious symbols or motifs [59]. Sekmadienis did not contest that the interference had pursued a legitimate aim; however, that interference had not been “necessary in a democratic society”. The ads had not been gratuitously offensive or profane: they had merely attempted to create a comic effect by using emotional interjections commonly used in spoken Lithuanian.

Furthermore, neither the domestic authorities which had examined its case nor the Government in their submissions had elaborated precisely what in the ads had been offensive to public morals, other than that the characters had resembled religious figures. That in itself could not have been a sufficient reason to ban them in a secular and democratic state [60]. Moreover, absent a state religion in Lithuania, no single faith could claim to be the source of public morals. “Public morals” could not be equated with “religious morals” and the Government’s submission that the moral choices of a large part of Lithuanian society were influenced by religion had not been substantiated by any empirical evidence [61]. Accordingly, the national authorities had exceeded their margin of appreciation.

The judgment

The Court held that it was unnecessary to decide whether the interference was prescribed by law within the meaning of Article 10 §2 and addressed the question of whether it pursued a legitimate aim and was necessary in a democratic society [68].

Some of the authorities had given significant weight to the fact that approximately one hundred individuals had complained about the advertisements. The Court had no reason to doubt that those individuals must have been genuinely offended, but reiterated that freedom of expression also extended to ideas which offend, shock or disturb. In a pluralist, democratic society, those who chose to exercise the freedom to manifest their religion

“could not reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith” [81].

Nor could ir be assumed that everyone who had claimed adherence to the Christian faith would necessarily consider the advertisements offensive. But even if they did,

“it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights to, inter alia, freedom of expression would become merely theoretical rather than practical and effective as required by the Convention” [82].

Accordingly, the domestic authorities had failed to strike a fair balance between the protection of public morals and the rights of religious people and the right of Sekmadienis Ltd to freedom of expression [83]. There had been a violation of Article 10 [84].

De Gaetano J, concurring, was even less impressed than his colleagues, concluding that the case should never even have got as far as the State Consumer Rights Protection Authority. And to save you from looking it up, Leviticus 19:28 in the NIV reads, “‘Do not cut your bodies for the dead or put tattoo marks on yourselves. I am the LORD”. Read and enjoy

Cite this article as: Frank Cranmer, "Advertising and public morals: Sekmadienis" in Law & Religion UK, 1 February 2018, http://www.lawandreligionuk.com/2018/02/01/advertising-and-public-morals-sekmadienis/

2 thoughts on “Advertising and public morals: Sekmadienis

  1. “absent a state religion in Lithuania, no single faith could claim to be the source of public morals. “Public morals” could not be equated with “religious morals”.

    So it’s not permitted for any signatory of the convention to enforce, British-style, a general politeness, whereby, by long-established social convention, everybody refrains from mocking outrageously every faith, as part of gimmicky advertisement campaigns? It strikes me that the British Advertising Standards Authority has precious little “margin of appreciation” left to it, to prevent TV ads that could lead to riots on the streets of Bradford.

    If the old rule that anything is sacred that somebody thinks is sacred has been replaced with this “nothing is sacred any more” iconoclasm, unless one is talking about an established church, then the powers that be had better make it official sooner rather than later, that Britain is now a caliphate.

  2. Pingback: Law and religion round-up – 18th March | Law & Religion UK

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