Murphy v Independent Radio and Television Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington.
• Judgment Date: 01 January 1999
• Neutral Citation: 1999 WJSC-SC 6111
• Date: 01 January 1999
• Court: Supreme Court
• Docket Number: [S.C. No. 191 of

MURPHY v. INDEPENDENT RADIO AND TELEVISION COMMISSION

Between:-

ROY MURPHY

Applicant/Appellant

and

THE INDEPENDENT RADIO AND TELEVISIONCOMMISSION

and

THE ATTORNEY GENERAL

Respondents

1999 WJSC-SC 6111

Hamilton, C.J.,

O'Flaherty, J.

Denham, J.

Barrington, J.

Keane, J.

Appeal No. 191/97

Judicial Review No. 1995/

314 JR

THE SUPREME COURT

Synopsis

- [1999] 1 IR 12 - [1998] 2 ILRM 360

Citations:

RADIO & TELEVISION ACT 1988 S10(3)

CONSTITUTION ART 44.2.1

CONSTITUTION ART 44.2.3

CONSTITUTION ART 40.6

CONSTITUTION ART 40.3

QUINNS SUPERMARKET V AG 1972 IR 1

CONSTITUTION ART 40.6.1

AG V PAPERLINK LTD 1984 ILRM 373

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

ROSENBERGER V UNIVERSITY OF VIRGINIA 1995 132 L ED 2d 700

COX V IRELAND 1992 2 IR 503

ART 26 OF THE CONSTITUTION & THE MATRIMONIAL HOMES BILL 1993, IN RE 1994 1 IR 305

HEANEY V IRELAND 1994 3 IR 593 1994 2 ILRM 420

KOHN THE CONSTITUTION OF THE IRISH FREE STATE 164

CONSTITUTION SAORSTAT EIREANN ART 8

OBLIQUE FINANCIAL SERVICES LTD V PRODUCTION CO LTD 1994 1 ILRM 74

IRISH TIMES LTD V MURPHY 1998 1 IR 375 1998 2 ILRM 161

RYAN V AG 1965 IR 294

1 JUDGMENT of The Supreme Court delivered pursuant to Article 34.4.5 of the Constitution on the 28th day of May, 1998by Mr. Justice Barrington.

2 This is an appeal from the Judgment and Order of Mr. Justice Geoghegan delivered and made herein on the 25th April, 1997.

3 The Applicant/Appellant is a Pastor attached to the Irish Faith Centre, a bible based Christian Ministry. The Centre is not an incorporated body and the Applicant makes the application on his own behalf and on itsbehalf.

4 In these proceedings the Applicant challenges a decision of the Independent Radio and Television Commission made in March 1995 to refuse to permit an independent radio station, 98FM, to broadcast the following advertisement which had been submitted by the Centre fortransmission:-

"What think ye of Christ? Would you, like Peter, only say that he is the son of the living God? Have you ever exposed yourself to the historical facts about Christ? The Irish Faith Centre are presenting for Easter week an hour long video by Dr. Jean Scott PHD on the evidence of the resurrection from Monday 10th - Saturday 15th April every night at 8.30 and Easter Sunday at 11.30am and also live by satellite at7.30pm".

5 The Broadcasting Station, 98FM, was prepared to broadcast the advertisement. The Independent Radio and Television Commission howeverfelt itself bound by the provisions of Section 10 (3) of the Radio and Television Act, 1988which provides as follows:-

"No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute".

6 and banned the broadcast.

7 In the Court below the Applicant made a two-pronged attack upon the decision of the Commission. He submitted first that the decision of the Commission that the advertisement was "directed towards anyreligious.....end" was mistaken in law. Alternatively he submitted that if the Commission had correctly construed Section 10 s.s.3 as prohibiting the publication of an advertisement such as that of the Applicant then the sub-section was unconstitutional.

8 The submission that the Commission had misunderstood the nature of the advertisement or misconstrued the terms of the Section was never advanced with great force and was abandoned in the course of the hearing in this Court. The debate therefore turned upon the constitutionality of the sub-section. The Applicant submitted that the sub-section, by totally banning advertisements directed towards any religious end violated guarantees of freedom of religioncontained in Article 44 S.2 s.s.1 and 3 of the Constitution. He also submitted that they violated guarantees of free speech and free expression contained in Article 40 S.6 of the Constitution and guarantees of communication implied in Article 40 S.3 of the Constitution. Moreover he submitted that Section 10 s.s.3, constituting as it did a total ban on the broadcasting of any advertisement "directed towards any religious end", swept far too widely and violated the principle of proportionality.

RELEVANT CONSTITUTIONAL PROVISIONS.

9 The Constitutional Provisions relied upon by the Applicant read asfollows:-

10 Article 44.

11 2. 1. "Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

12 3. "The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief orstatus".

13 Article 40

14 3. 1. "The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

15 6. 1. "The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-

16 i i. The right of the citizens to express freely their convictions and opinions.

17 The Education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

18 The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance withlaw".

HIGH COURT JUDGMENT.

19 The learned High Court Judge rejected the submission that the prohibition contained in S.10 s.s.3 of the 1988 Act was an attack on the freedom of conscience or the free profession or practice of religion guaranteed by Article 44 S.2 s.s.1 of the Constitution. The prohibition on this particular advertisement, he held, was not an attack on freedom of conscience or the free practice of religion. Indeed, he held that the advertisement itself "might be an intrusion on the quiet possession of religious beliefs". Nor, he held, could the advertisement be regarded as a discrimination made on the grounds of religious profession belief or status contrary to Article 44 (2) (3) of the Constitution. This latter provision, he held, prohibited the making of distinctions on the grounds of religious profession belief or status (see Quinns Supermarket v. Attorney General 1972 Irish Reports page 1)but the ban on this type of advertisement, did not distinguish between persons on the grounds of religious profession belief or status. This ban applied, no matter what the religion, and therefore there could be no question of religious discrimination involved.

Article 40.

20 The learned trial Judge next turned to the submission based upon the alleged violation of an implied right to communicate based on Article 40 (3) (1) of theConstitution and the right to freedom of expression guaranteed by Article 40 (6) (1) of the Constitution. The learned High Court Judge was at some loss to understand the conclusion which some people have drawn from the decision of Costello P. in Attorney General v. Paperlink Limited (1984) ILRM page 373 that the right to communicate information derives from Article 40 (3) (1) but that the right to communicate opinions derives from Article 40 (6) (1) of the Constitution. Nevertheless he held that the present case raised the question of the general right to communicate and this, he concluded, derived from Article 40 S.3 of the Constitution. In the view he took of the case Article 40 (6) (1) of the Constitution was not relevant.

21 He held that Article 40 (6) (1) was not relevant for two reasons. First, he held, that the proposed advertisement was not primarily concerned with matters of opinion but had, as its principal purpose, the communication of information. Secondly he held that Article 40 (6) (1) did not seem to have any application to the right of a private citizen to express private opinions with a view to influencing some other person or persons.

22 At the same time the learned trial Judge expressed some puzzlement as to why such diverse rights as the right to freedom of expression, the right to free assembly and the right to join associations and unions should be referred tocollectively in one paragraph at Article 40 (6) (1) of the Constitution. Superficially the rights would seem to refer to quite different matters but nevertheless the learned High Court Judge, took the view, that the framers of the Constitution had deliberately included them in the one sub-section for a reason. He drew the conclusion that the reason was that they were concerned with the influencing of public opinion. An advertisement, and in particular a religious advertisement, was however directed to the individual listener and for that reason he drew the conclusion that Article 40 (6) (1) had nothing to do with the matter at issue in this case.

23 The case therefore turned upon the provisions of Article 40 S.3 s.s.1. The learned trial Judge accepted that the rights guaranteed by Article 40 S.3 were not absolute but might be regulated in the interests of the common good. He then drew an analogy with Article 10 of the EuropeanConvention on Human Rights (which deals with freedom of expression) and asked himself if the restriction on the advertisement in question would be regarded as a reasonable limitation on freedom of expression by the European Court of Human Rights.

"What would be considered reasonable limitations under that Article should equally........" he said "be considered reasonable limitations under Article 40 (3) of theConstitution".

24 Having considered the cases on Article 10 of the European Convention on Human Rights he reached the conclusion that for a restriction to survive under that Article it was not essential to show that the ban was absolutely necessary....