Article 10 European Convention of Human Rights (Right to Freedom of Expression) in the Light of the Case Sekmadienis Ltd. v. LithuaniaECtHR 30.01.2018 (final on 30.04.2018), application no. 69317/14
Amelie RÖHLING
On 30.10.2018 the European Court of Human Rights found a violation of Article 10 of the European Convention of Human Rights in the case Sekmadienis Ltd. v. Lithuania. The applicant company, a Lithuanian advertising agency, was fined by the State Consumer Rights Protection Agency for its clothing advertisements featuring models that resembled religious figures. According to the Lithuanian authorities the advertisements were contrary to public morals and as such in breach of the Lithuanian Law on Advertising. The fine was upheld by the Lithuanian courts. The European Court of Human Rights decided that the fine constituted a violation of Article 10 of the Convention, as the domestic authorities and courts did not provide relevant and sufficient reasons for why the advertisements were contrary to public morals. Besides the court held that the advertisements were not gratuitously offensive and did not incite hatred on the grounds of religious belief. It criticized the domestic authorities’ reliance on the opinion of one dominant religion in Lithuania, when deciding that the advertisements were contrary to public morals. Notably the court warned that it was incompatible with the Convention for a minority’s right to freedom of expression to be conditional on acceptance by the majority.
Art. 10 ECHR, Commercial Advertising, Religious Symbols, Public Morals, Freedom of Expression.
1. The Case of Sekmadienis Ltd. v. Lithuania
The applicant, a Lithuanian advertising agency, ran an advertising campaign for a designer in autumn 2012. The campaign consisted of three visual advertisements, which were shown in public areas in Vilnius and on the designer’s website. The first advertisement showed a young man with long hair, a headband, a halo around his head and several tattoos wearing a pair of jeans. Another one showed a young woman wearing a white dress and a headdress with flowers in it. She had a halo around her head and was holding a string of beads. The third advertisement showed the man and the woman together with the same clothes and accessories. The captions of all three pictures referred to Jesus and Mary.1
The national proceedings began after the State Consumer Rights Protection Authority received five separate complaints. The SCRPA consulted the Lithuanian Advertising Agency, a self-regulation body composed of advertising specialists. They found that the advertisement were possibly in breach of Article 4 § 2 (1) of the Law on Advertising since it would violate public morals. Article 4 of the Law on Advertising deals with general requirements for advertising. According to Article 4 § 2 (1) advertising shall be banned if it violates public morals. In their view the advertisements may lead to dissatisfaction of religious people and might be seen as humiliating and degrading people because of their faith, convictions or opinions. After the consultation of the Lithuanian Advertising Agency, the SCRPA consulted the State Inspectorate of Non-Food Products as well as the Lithuanian Bishops Conference. Both agreed with the Lithuanian Advertising Agency and found a breach of Article 4 § 2 (1) of the Law on Advertising. The Lithuanian Bishops Conference, which is the territorial authority of the Roman Catholic Church in Lithuania, stated that the advertisements encourage “a frivolous attitude towards the ethical values of Christian Faith and promote a lifestyle which is incompatible with the principles of a religious person”. Besides the Bishops Conference had received complaints from about hundred religious individuals concerning the advertisements. After its consultations the SCRPA adopted a decision against the applicant company concerning a violation of Article 4 § 2 (1) of the Law on Advertising. As a result the SCRPA fined the applicant company with 2,000 Lithuanian Iitai (approximately 580 euros).
As a reaction to the decision of the SCRPA the applicant company brought a complaint before the Vilnius Regional Administrative Court. The applicant company argued that the persons and objects shown in the advertisements were not related to religious symbols. According to the applicant company the advertisements were not offensive or disrespectful in any way and were a product of artistic activity and therefore protected by the freedom of expression. The Court of First Instance as well as the Supreme Administrative Court of Lithuania dismissed the complaint holding that the SCRPA had correctly assessed all the relevant circumstances in finding that the advertisements were contrary to public morals.
