Murphy v Independent Radio and Television Commission

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Geoghegan
• Judgment Date: 25 April 1997
• Neutral Citation: [1997] IEHC 71
• Date: 25 April 1997
• Docket Number: No. 317 J.R./1995

[1997] IEHC 71

THE HIGH COURT

No. 317 J.R./1995

MURPHY v. INDEPENDENT RADIO & TELEVISION COMMISSION & AG

JUDICIAL REVIEW

BETWEEN

ROY MURPHY

APPLICANT

AND

THE INDEPENDENT RADIO AND TELEVISION COMMISSION AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

RADIO & TELEVISION ACT 1988 S10(3)

CONSTITUTION ART 40.3.1

AG V PAPER LINK LTD 1984 ILRM 373

CONSTITUTION ART 40.6.1

CONSTITUTION ART 44.2.1

CONSTITUTION ART 44.2.3

CONSTITUTION ART 44

CONSTITUTION ART 40

MCGEE V AG 1974 IR 284

QUINN SUPERMARKET V AG 1972 IR 1

CONSTITUTION ART 40.6.1.i

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

CONSTITUTION ART 40.6.1.iii

CONSTITUTION ART 40.6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10

AG V GUARDIAN NEWSPAPERS LTD (NO 2) 1991 AC 109

DERBYSHIRE CO COUNCIL V TOWNS NEWSPAPERS LTD 1993 AC 534

R V RADIO AUTHORITY EX PARTE BULL 1995 3 WLR 572

INFORMATIONSVEREIN LENTIA V AUSTRIA 17 EHRR 93

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10 PARA 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10 PARA 2

Synopsis:

Constitutional Law

Judicial review; refusal to permit transmission of advertisement notifying religious event pursuant to s.10(3), Radio and Television Act, 1988; whether advertisement a religious advertisement contrary to s.10(3); whether s.10(3) invalid having regard to constitutional right of free practice of religion under Article 44; whether s.10(3) invalid having regard to constitutional right to communicate under Article 40.3.2; whether s.10(3) invalid having regard to constitutional right of free expression under Article 40.6.1; relationship between right to communicate and right of free expression Held: Advertisement contrary to s.10(3); s.10(3) not invalid; no attack on right of free practice of religion; right of free expression a particular aspect of right of free expression relating to influencing of public opinion; no infringement of right of free expression as advertisement not directed towards influencing public opinion; no infringement of right to communicate as restriction reasonable in public interest High Court: Geoghegan J. 25/04/1997) [1997] 2 ILRM 467

Murphy v. I.R.T.C. & Attorney General

1 Judgment of Mr. Justice Geoghegan delivered the 25th day of April, 1997

2 This is an application for Judicial Review of a decision of the first named Respondent dated the 31st day of March, 1995 refusing to permit the Applicant to transmit a particular advertisement on the radio station known as "98 FM". I should state at the outset that the owners of "98 FM" had no objection to broadcasting the advertisement if they were satisfied that they were lawfully entitled to do so but they were informed by the first named Respondent, being the relevant statutory authority, that they were prohibited from doing so by virtue of Section 10(3) of the Radio and Television Act, 1988. That subsection provides that:-

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

3 The advertisement in question read as follows:-

"What think ye of Christ? Would you, like Peter, boldly say 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. Gene Scott, PhD on the evidence for the resurrection from Monday, 10th to Saturday, 15th April every night at 8.30 and Easter Sunday at 11.30 a.m. and also live by satellite at 7.30 p.m., The Irish Faith Centre, 360A North Circular Road, Phibsboro".

4 The Applicant seeks to impugn the refusal to broadcast this advertisement on the grounds:-

5 (1) that it does not breach Section 10(3) of the 1988 Act;

6 (2) that if contrary to the Applicant's contention it does breach that subsection, then the subsection is invalid having regard to the Constitution.

7 Although Counsel for the Applicant relies on both arguments, I think it is fair to say, that the greatest stress was on the second. In support of the first argument Counsel for the Applicant suggests that the advertisement is in essence an advertisement for a showing of a video and the showing of a live communication by satellite and that it is not directly an advertisement for some religious belief or doctrine. On any fair reading of this advertisement, I think that one would have to interpret it as being more than a mere notification of an event. The question, therefore, of whether notification of a religious event necessarily infringes Section 10(3) of the Radio and Television Act, 1988does not arise in this case and that being so I do not think it would be advisable or proper for me to make any decision on it. What I am deciding is that this particular advertisement does infringe Section 10(3) or at the very least that the first named Respondent was entitled to take the view that it did. The advertisers are called in the advertisement "The Irish Faith Centre". It is perfectly obvious from the whole tenor of the advertisement that the listener is being led to at least favourably consider the proposition that Christ is the Son of the living God and that the traditional "beliefs" about Christ are historical facts. In my opinion, the advertisement is a great deal more than a mere notification of an event. Given that Section 10(3) itself has a broad thrust, I think that the advertisement would clearly infringe the subsection.

8 I turn, therefore, to consider whether the subsection is unconstitutional. Four different provisions of the constitution are relied on by the Applicant. These are:-

9 (1) Article 40(3)(1) as conferring the unenumerated right to communicate as identified by Costello P. in Attorney General -v- Paper Link Limited 1984 I.L.R.M. 373.

10 (2) Article 40(6)(1) which confers "the right of the citizens to express freely their convictions and opinions".

11 (3) Article 44(2)(1) which guarantees freedom of conscience and the free profession and practice of religion to every citizen subject to public order and morality.

12 (4) Article 44(2)(3) which prohibits the imposition by the State of any disabilities or the making of any discrimination on the ground of religious profession, belief or status.

13 I propose to deal with the Article 44 arguments first as they present less difficulty than the arguments based on Article 40. In my view, Section 10(3) of the 1988 Act in no way impedes freedom of conscience or the free profession or practice of religion. As Counsel for the Attorney General has pointed out, the true meaning of Article 44(2)(1) has been explained by Walsh J. in McGee -v- Attorney General 1974 I.R. 284 at 316, Walsh J. observed as follows:-

"The whole context in which the question of conscience appears in Article 44 is one dealing with the exercise of religion and the free profession and practice of religion. Within that context, the meaning of Section 2, subsection 1 of Article 44 is that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience insofar as the practice of religion is concerned, and subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience.....what the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one's conscience insofar as the exercise, practice or profession of religion is concerned".

14 The prohibition on this advertisement is not an attack on freedom of conscience or the free practice of religion. Indeed if anything the advertisement might be an intrusion on the quiet possession of religious beliefs.

15 Nor does it appear to me that the refusal of such an advertisement as this could constitute a discrimination on the ground of religious profession, belief or status as prohibited by Article 44(2)(3). The meaning of this constitutional provision has also been elaborated on by Walsh J. in Quinn Supermarket -v- Attorney General 1972 I.R. 1. He explains that what is prohibited by the provision is the creation of a difference between persons or bodies or the distinguishing between them on the grounds of religious profession, belief or status. An advertisement of this kind would have been prohibited no matter what religion was involved and there is therefore no question of religious discrimination. I am satisfied that insofar as the Applicant relies on Article 44 to impugn the validity of Section 10(3) of the 1988 Act having regard to the Constitution, the application must fail.

16 I now turn to the much more difficult question of whether either of the provisions relied on in Article 40 by the Applicant gives him the right to have his advertisement broadcast and that that being so the subsection in the 1988 Act is repugnant to the Constitution. I think it appropriate to deal with the arguments based on Article 40(3)(1) and the arguments based on Article 40(6)(1) together. I do this because I do not accept that the two constitutional provisions are totally independent of one another. In some of the arguments put forward in this Court it seemed to be suggested that as a consequence of Attorney General -v- Paper Link Limited 1984 I.L.R.M. 373 the right to communicate factual matters arose from Article 40(3)(1) but that the right to communicate convictions and opinions arose from Article 40(6)(1). If this analysis was correct, it would seem to give rise to an anomaly. I cannot see any rational basis why the Constitution would confer an express right to communicate opinions but an implied or unenumerated right to communicate information. The key passage in Costello P's. judgment in the Paper Link case does not appear to me to support the view that there are two distinct rights of communication conferred by different provisions of the Constitution. The passage in question reads as follows at...