In the case of Wingrove v. the United Kingdom (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for
the Protection of
Human Rights and Fundamental Freedoms
("the Convention") and the
relevant provisions of Rules of Court A
(2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr J.M. Morenilla,
Sir John Freeland,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and
Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 March, 27 September and
22 October 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1.
The case is numbered 19/1995/525/611.
The first number is the
case's position on the list of 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.
2.
Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1
October 1994) and thereafter only
to cases concerning States not bound by
that Protocol (P9). They
correspond to the Rules that came into
force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1.
The case was referred to the Court by the European Commission
of Human Rights ("the
Commission") on 1 March 1995 and by the
Government of the United Kingdom of Great
Britain and Northern Ireland
("the Government") on 22 March
1995, within the three-month period laid
down by Article 32 para. 1 and Article 47
of the Convention (art. 32-1,
art. 47).
It originated in an application (no. 17419/90) against the
United Kingdom lodged with the Commission
under Article 25 (art. 25)
by a British national, Mr Nigel Wingrove,
on 18 June 1990.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration
whereby the United Kingdom
recognised the compulsory jurisdiction of
the Court (Article 46)
(art. 46); the Government's application
referred to Article 48
(art. 48). The object of the request and of the application was to
obtain a decision as to whether the facts
of the case disclosed a
breach by the respondent State of its
obligations under Article 10 of
the Convention (art. 10).
2.
In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A,
the applicant stated that he
wished to take part in the proceedings and
designated the lawyer who
would represent him (Rule 30).
3.
The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of
British nationality (Article 43
of the Convention) (art. 43), and Mr R.
Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of
the Registrar, the President of the Court,
Mr R. Ryssdal, drew by lot
the names of the other seven members,
namely Mr L.-E. Pettiti,
Mr R. Macdonald, Mr J. De Meyer, Mr J.M.
Morenilla,
Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr
U. Lohmus (Article 43 in
fine of the Convention and Rule 21 para.
5) (art. 43). Subsequently,
Mr Thór Vilhjálmsson, substitute judge,
replaced Mr Macdonald, who was
unable to take part in the further
consideration of the case (Rules 22
para. 1 and 24 para. 1).
4.
As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted
the Agent of the Government,
the applicant's lawyer and the Delegate of
the Commission on the
organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant
to the order made in consequence, the
Registrar received the
Government's and the applicant's memorials
on 24 November 1995. The
Secretary to the Commission subsequently
informed the Registrar that
the Delegate did not wish to reply in
writing to the memorials filed.
5.
On 17 November 1995, the President, having consulted the
Chamber, had granted leave to Rights
International, a New York-based
non-governmental human rights
organisation, to submit written comments
on specified aspects of the case (Rule 37
para. 2). Leave was also
granted on the same date, subject to
certain conditions, to
two London-based non-governmental human
rights organisations, namely
Interights and Article 19, to submit joint
written comments. The
comments were received between 2 and 5
January 1996. On
1 February 1996 the applicant submitted an
explanatory statement on the
origins and meaning of his video work.
6.
In accordance with the President's decision, the hearing took
place in public in the Human Rights
Building, Strasbourg, on
27 March 1996. Beforehand, the Court had held a preparatory meeting
and had viewed the video recording in
issue in the presence of the
applicant and his representatives.
There appeared before the Court:
(a) for the Government
Mr M.R. Eaton, Deputy Legal
Adviser, Foreign and
Commonwealth Office, Agent,
Sir Derek Spencer, Solicitor-General,
Mr P. Havers QC,
Mr N. Lavender,
Counsel,
Mr C. Whomersley, Legal
Secretariat to the
Law Officers,
Mr R. Clayton, Home Office,
Mr L. Hughes, Home Office, Advisers;
(b) for the Commission
Mr N. Bratza,
Delegate;
(c) for the applicant
Mr G. Robertson, QC, Counsel,
Mr M. Stephens,
Mr P. Chinnery,
Solicitors.
The Court heard addresses by Mr Bratza, Mr Robertson and
Sir Derek Spencer.
AS TO THE FACTS
I.
Circumstances of the case
7.
The applicant, Mr Nigel Wingrove, is a film director. He was
born in 1957 and resides in London.
8.
Mr Wingrove wrote the shooting script for, and directed the
making of, a video work entitled Visions
of Ecstasy. Its running time
is approximately eighteen minutes, and it
contains no dialogue, only
music and moving images. According to the applicant, the idea for the
film was derived from the life and
writings of St Teresa of Avila, the
sixteenth-century Carmelite nun and
founder of many convents, who
experienced powerful ecstatic visions of
Jesus Christ.
9.
The action of the film centres upon a youthful actress dressed
as a nun and intended to represent St
Teresa. It begins with the nun,
dressed loosely in a black habit, stabbing
her own hand with a large
nail and spreading her blood over her
naked breasts and clothing. In
her writhing, she spills a chalice of
communion wine and proceeds to
lick it up from the ground. She loses consciousness. This sequence
takes up approximately half of the running
time of the video. The
second part shows St Teresa dressed in a
white habit standing with her
arms held above her head by a white cord
which is suspended from above
and tied around her wrists. The near-naked form of a second female,
said to represent St Teresa's psyche,
slowly crawls her way along the
ground towards her. Upon reaching St Teresa's feet, the psyche
begins
to caress her feet and legs, then her
midriff, then her breasts, and
finally exchanges passionate kisses with
her. Throughout this
sequence, St Teresa appears to be writhing
in exquisite erotic
sensation. This sequence is intercut at frequent intervals with a
second sequence in which one sees the body
of Christ, fastened to the
cross which is lying upon the ground. St Teresa first kisses the
stigmata of his feet before moving up his
body and kissing or licking
the gaping wound in his right side. Then she sits astride him,
seemingly naked under her habit, all the
while moving in a motion
reflecting intense erotic arousal, and
kisses his lips. For a few
seconds, it appears that he responds to
her kisses. This action is
intercut with the passionate kisses of the
psyche already described.
Finally, St Teresa runs her hand down to
the fixed hand of Christ and
entwines his fingers in hers. As she does so, the fingers of Christ
seem to curl upwards to hold with hers,
whereupon the video ends.
10.
Apart from the cast list which appears on the screen for a few
seconds, the viewer has no means of
knowing from the film itself that
the person dressed as a nun in the video
is intended to be St Teresa
or that the other woman who appears is
intended to be her psyche. No
attempt is made in the video to explain
its historical background.
11.
Visions of Ecstasy was submitted to the British Board of
Film Classification ("the
Board"), being the authority designated by
the Home Secretary under section 4 (1) of
the Video Recordings Act 1984
("the 1984 Act" - see paragraph
24 below) as
"the authority responsible for making arrangements
(a) for determining, for the
purposes of [the] Act whether or
not video works are suitable for classification
certificates to be issued in respect of them, having
special regard to the likelihood of video works in
respect of which such certificates have been issued
being
viewed in the home,
(b) in the case of works which
are determined in accordance
with the arrangements to be so suitable
(i) for
making such other determinations as are
required for the issue of classification
certificates, and
(ii) for issuing such certificates ...
..."
12.
The applicant submitted the video to the Board in order that
it might lawfully be sold, hired out or
otherwise supplied to the
general public or a section thereof.
13.
The Board rejected the application for a classification
certificate on 18 September 1989 in the
following terms:
"Further to your application for a classification certificate
..., you are already aware that under the
Video Recordings Act 1984 the Board must determine first of all
whether or not a video work is suitable for such a certificate
to be issued to it, having special regard to the likelihood of
video works being viewed in the home.
In making this judgment,
the Board must have regard to the Home Secretary's Letter of
Designation in which we are enjoined to `continue to seek to
avoid classifying works which are obscene within the meaning
of the Obscene Publications Acts 1959 and 1964 or which
infringe other provisions of the criminal law'.
Amongst these provisions is the criminal law of blasphemy, as
tested recently in the House of Lords in R. v. Lemon (1979),
commonly known as the Gay News case.
The definition of
blasphemy cited therein is 'any contemptuous, reviling,
scurrilous or ludicrous matter relating to God, Jesus Christ
or the Bible ... It is not blasphemous to speak or publish
opinions hostile to the Christian religion' if the publication
is 'decent and temperate'. The
question is not one of the
matter expressed, but of its manner, i.e. `the tone, style and
spirit', in which it is presented.
The video work submitted by you depicts the mingling of
religious ecstasy and sexual passion, a matter which may be of
legitimate concern to the artist.
It becomes subject to the
law of blasphemy, however, if the manner of its presentation
is bound to give rise to outrage at the unacceptable treatment
of a sacred subject. Because the
wounded body of the crucified
Christ is presented solely as the focus of, and at certain
moments a participant in, the erotic desire of St Teresa, with
no attempt to explore the meaning of the imagery beyond
engaging the viewer in an erotic experience, it is the Board's
view, and that of its legal advisers, that a reasonable jury
properly directed would find that the work infringes the
criminal law of blasphemy.
To summarise, it is not the case that the sexual imagery in
Visions of Ecstasy lies beyond the parameters of the `18'
category; it is simply that for a major proportion of the
work's duration that sexual imagery is focused on the figure
of the crucified Christ. If the
male figure were not Christ,
the problem would not arise.
Cuts of a fairly radical nature
in the overt expressions of sexuality between St Teresa and the
Christ figure might be practicable, but I understand that you
do not wish to attempt this course of action. In consequence,
we have concluded that it would not be suitable for a
classification certificate to be issued to this video work."
14.
The applicant appealed against the Board's determination to the
Video Appeals Committee ("the
VAC" - see paragraph 25 below),
established pursuant to section 4 (3) of
the 1984 Act. His notice of
appeal, prepared by his legal
representatives at the time, contained
the following grounds:
"(i) that the Board was
wrong to conclude that the video
infringes the criminal law of blasphemy, and that a
reasonable jury properly directed would so find;
(ii) in particular, the
Appellant will contend that upon a
proper understanding of the serious nature of the
video
as an artistic and imaginative interpretation of the
`ecstasy' or `rapture' of the
sixteenth-century Carmelite nun, St Teresa of Avila,
it
would not be taken by a reasonable person as
contemptuous, reviling, scurrilous or ludicrous or
otherwise disparaging in relation to God, Jesus
Christ or
the Bible.
The appeal will raise the question of mixed
fact and law, namely whether publication of the
video,
even to a restricted degree, would contravene the
existing criminal law of blasphemy."
15.
The Board submitted a formal reply to the VAC explaining its
decision in relation to its functions
under section 4 of the 1984 Act:
"The Act does not expressly set out the principles to be
applied by the authority in determining whether or not a
video work is suitable for a classification certificate to be
issued in respect of it. In
these circumstances, the Board has
exercised its discretion to formulate principles for
classifying video works in a manner which it believes to be
both reasonable and suited to carrying out the broad objectives
of the Act. Amongst these
principles, the Board has concluded
that an overriding test of suitability for classification is
the determination that the video work in question does not
infringe the criminal law. In
formulating and applying this
principle, the Board has consistently had regard to the
Home Secretary's Letter of Designation under the
Video Recordings Act ...
The Board has concluded on the advice of leading Counsel that
the video work in question infringes the criminal law of
blasphemy and that a reasonable jury properly directed on the
law would convict accordingly.
The Board submits and is
advised that in Britain the offence of blasphemy is committed
if a video work treats a religious subject (in particular God,
Jesus Christ or the Bible) in such a manner as to be calculated
(that is, bound, not intended) to outrage those who have an
understanding of, sympathy towards and support for the
Christian story and ethic, because of the contemptuous,
reviling, insulting, scurrilous or ludicrous tone, style and
spirit in which the subject is presented.
The video work under appeal purports to depict the erotic
fantasies of a character described in the credits as
St Teresa of Avila. The
14-minute second section of the
video work portrays 'St Teresa' having an erotic fantasy
involving the crucified figure of Christ, and also a
Lesbian erotic fantasy involving the 'Psyche of St Teresa'.
No attempt is made to place what is shown in any historical,
religious or dramatic context: the figures of St Teresa and her
psyche are both clearly modern in appearance and the erotic
images are accompanied by a rock music backing. The work
contains no dialogue or evidence of an interest in exploring
the psychology or even the sexuality of the character
purporting to be St Teresa of Avila.
Instead, this character
and her supposed fantasies about lesbianism and the body and
blood of Christ are presented as the occasion for a series of
erotic images of a kind familiar from 'soft-core' pornography.
In support of its contentions, the Board refers to an interview
given by the appellant and published in Midweek magazine on
14 September 1989. In this
interview, the appellant attempts
to draw a distinction between pornography and 'erotica',
denying that the video work in question is pornographic but
stating that `all my own work is actually erotica'. Further
on, the interviewer comments:
`In many ways, though, Visions calls upon the
standard
lexicon of lust found in down market porn: nuns,
lesbianism, women tied up (Gay Nuns in Bondage could
have
been an alternative title in fact). Nigel Wingrove
flashes a wicked grin. `That's right, and I'm not
denying it. I
don't know what it is about nuns, it's the
same sort of thing as white stocking tops I
suppose.' So
why does he not consider Visions to be pornography,
or at
least soft porn?
`I hope it is gentler, subtler than
that. I
suppose most people think pornography shows the
sex act, and this doesn't.'
It is clear from the appellant's own admissions that, whether
or not the video work can rightly be described as pornographic,
it is solely erotic in content, and it focuses this erotic
imagery for much of its duration on the body and blood of
Christ, who is even shown to respond to the sexual attentions
of the principal character.
Moreover, the manner in which such
imagery is treated places the focus of the work less on the
erotic feelings of the character than on those of the audience,
which is the primary function of pornography whether or not it
shows the sex act explicitly.
Because there is no attempt, in
the Board's view, to explore the meaning of the imagery beyond
engaging the viewer in a voyeuristic erotic experience, the
Board considers that the public distribution of such a
video work would outrage and insult the feelings of believing
Christians ...
...
The Board ... submits that the appeal should be dismissed and
its determination upheld."
16.
The applicant then made further representations to the VAC,
stating, inter alia:
"The definition of the offence of blasphemy set out in ... the
reply is too wide, being significantly wider than the test
approved in the only modern authority -
see Lemon & Gay News Ltd v. Whitehouse [1979] Appeal Cases 617,
per Lord Scarman at 665. For
example, there is no uniform law
of blasphemy in Britain; the last recorded prosecution for
blasphemy under the law of Scotland was in 1843 -
see Thos Paterson [1843] I Brown 629.
Nor is any
religious subject protected - the reviling matter must be in
relation to God, Jesus Christ or the Bible, or the formularies
of the Church of England as by law established.
In the Appellant's contention, these limitations are of the
utmost significance in this case since the video is not
concerned with anything which God or Jesus Christ did, or
thought or might have approved of.
It is about the erotic
visions and imaginings of a sixteenth-century Carmelite nun -
namely St Teresa of Avila. It is
quite plain that the
Christ figure exists in her fantasy as the Board expressly
accepts ... The scurrilous and/or erotic treatment of
religious subject matter has received the Board's
classification without attempted prosecution in recent years,
e.g. Monty Python's Life of Brian and Mr Scorsese's
The Last Temptation of Christ.
... The Board argues that the
video is purely erotic or
'soft-core' pornographic, without historical, religious,
dramatic or other artistic merit.
The implication is that, had
it possessed such merit the Board's decision might very well
have been otherwise. The Appellant will seek to argue and call
evidence to the effect that the video work is a serious
treatment of the subject of the ecstatic raptures of St Teresa
(well chronicled in her own works and those of commentators)
from a twentieth-century point of view.
The so-called 'rock music backing' was in fact specially
commissioned from the respected composer Steven Severin, after
discussion of the Director's desired artistic and emotional
impact. The Board has based its
decision upon the narrowest,
most disparaging, critical appreciation of the work. The
Appellant will contend that a
very much more favourable
assessment of his aims and achievement in making
Visions of Ecstasy is, at the very least, tenable and that the
Board ought not to refuse a certificate on a mere matter of
interpretation.
The Appellant takes objection to the Board's quotation ... of
comments attributed to him from an article by one Rob Ryan
published in Midweek magazine 14th September 1989. The remarks
are pure hearsay so far as the Board is concerned. That aside,
the piece quoted is in large part the comments of the author
of the article. An entirely
misleading impression of what the
Appellant said to the author is conveyed by the interpolation
of the words attributed to him, and by taking this passage out
of context.
Above all, the Appellant disputes the key assertion by the
Board that the video work is solely erotic in content."
17.
The appeal was heard by a five-member panel of the VAC ("the
Panel") on 6 and 7 December 1989;
oral and affidavit evidence was
submitted. By a majority of three to two, a written decision rejecting
the appeal was given on 23 December
1989. The Panel also considered
itself bound by the criteria set out in
the designation notice
(see paragraph 24 below). It had difficulty, however, in ascertaining
and applying the present law of
blasphemy. It commented as follows:
"The authorities on this Common Law offence were reviewed by
the House of Lords in the case of Lemon and Gay News Ltd
v. Whitehouse which concerned a magazine called Gay News, the
readership of which consisted mainly of homosexuals although
it was on sale to the general public at some bookstalls. One
edition contained a poem entitled The Love that Dares to
Speak its Name accompanied by a drawing illustrating its
subject matter.
In his judgment Lord Scarman said that it was unnecessary to
speculate whether an outraged Christian would feel provoked by
the words and illustration to commit a breach of the peace, the
true test being whether the words are calculated to outrage and
insult the Christian's religious feelings, the material in
question being contemptuous, reviling, scurrilous or ludicrous
matter relating to God, Jesus Christ or the Bible, or the
formularies of the Church of England.
It should perhaps be
added that the word `calculated' should be read in the
dictionary sense of `estimated' or `likely' as it was decided
that intent (other than an intent to publish) is not an element
in the offence.
In the same case Lord Diplock said that the material must be
`likely to arouse a sense of outrage among those who believe
in or respect the Christian faith'.
In the present case the Board's Director ... said in evidence
that the Board's view was that the video was `contemptuous of
the divinity of Christ'. He
added that although the Board's
decision was based upon its view that the video is blasphemous
(blasphemy being an offence which relates only to the
Christian religion), it would take just the same stance if it
were asked to grant a Certificate to a video which, for
instance, was contemptuous of Mohammed or Buddha."
18.
The Panel went on to review the content of the video and
accepted that the applicant had in mind St
Teresa, a nun, "who is known
to have had ecstatic visions of Christ
although, incidentally, these
did not start until she was 39 years of
age - in marked contrast to the
obvious youthfulness of the actress who
plays the part".
19.
The Panel reached the following conclusion:
"From the writings of St Teresa herself, and the subsequent
writings of others, there seems no reason to doubt that some
of her visions were of seeing the glorified body of Christ and
being shown his wounds but, even so, it seems clear that
Mr Wingrove has taken considerable artistic licence with his
subject.
Apart from the age discrepancy - a comparatively minor matter -
we were made aware of nothing which would suggest that Teresa
ever did anything to injure her hand or that any element of
lesbianism ever entered into her visions. More importantly,
there seems nothing to suggest that Teresa, in her visions,
ever saw herself as being in any bodily contact with the
glorified Christ. As one author,
Mr Stephen Clissold, puts it
`Teresa experienced ecstasy as a form of prayer in which she
herself played almost no part'.
So, in view of the extent of the artistic licence, we think it
would be reasonable to look upon the video as centring upon any
nun of any century who, like many others down the ages, had
ecstatic visions.
There is also another reason for taking this stance: unless the
viewer happens to read the cast list which appears on the
screen for a few seconds, he or she has no means of knowing
that the nun is supposed to be St Teresa, nor that the figure
of the second woman is supposed to be her psyche. And he or
she in any event may well be unaware that Teresa was a
real-life nun who had ecstatic visions.
It is true that Mr Wingrove says that it is intended that the
sleeve or jacket for the video will provide 'basic historical
information to assist the viewer', but we feel bound to regard
this as irrelevant. Firstly
because it by no means follows
that every viewer will read any such description; and secondly
because the Board's and the Appeal Panel's decision must be
based solely upon the video itself, quite apart from the fact
that at the time of making a decision the sleeve or jacket is
usually - as in the present instance - not even in existence.
However, although we have thought it proper to dwell at some
length with the 'St Teresa' aspect, we are of the opinion that
in practice, when considering whether or not the video is
blasphemous, it makes little or no difference whether one looks
upon the central character as being St Teresa or any other nun.
The appellant, in his written statement, lays stress upon the
undoubted fact that the whole of the second half consists of
Teresa's vision or dream. Hence
he says the video says nothing
about Christ, his figure being used only as a projection of
St Teresa's mind, nor was it his intention to make that figure
an active participant in any overt sexual act.
He goes on to say `Rather the very mild responses are those of
St Teresa's conjecture: the kiss, hand clasp and ultimately the
tears of Christ. To show no response to a creation of her own
mind would be nonsense; no woman (nor man) whose deep love
could cause such visions/ecstasies would imagine the object of
that love coldly to ignore their caresses'.
Although we quite appreciate the logic of this point of view,
we have reservations about the extent to which a vision or
dream sequence can affect the question of whether what is
pictured or said is blasphemous.
It would, for instance, be possible to produce a film or video
which was most extremely contemptuous, reviling, scurrilous or
ludicrous in relation to Christ, all dressed up in the context
of someone's imaginings. In such
circumstances we find it hard
to envisage that, by such a simple device, it could reasonably
be said that no offence had been committed. If in our opinion
the viewer, after making proper allowance for the scene being
in the form of a dream,
nevertheless reasonably feels that it
would cause a sense of outrage and insult to a Christian's
feelings, the offence would be established.
We should perhaps also deal, albeit briefly, with a further
submission made on behalf of the appellant, namely that the
crime of blasphemy may extend only to the written or
spoken word and hence that a court might rule that no film or
video, and perhaps nothing shown on television, could become
the subject of such a charge.
Suffice it to say that in our
view this is too unlikely to cause it to be taken into account
by the Board or a panel of the Appeals Committee when reaching
a decision.
In the opinion of a majority of the Panel the video did not,
as the appellant claims, explore St Teresa's struggles against
her visions but exploited a devotion to Christ in purely carnal
terms. Furthermore they considered
that it lacked the
seriousness and depth of The Last Temptation of Christ with
which Counsel for the appellant sought to compare it.
Indeed the majority took the view that the video's message was
that the nun was moved not by religious ecstasy but rather by
sexual ecstasy, this ecstasy being of a perverse kind - full
of images of blood, sado-masochism, lesbianism (or perhaps
auto-erotism) and bondage.
Although there was evidence of some
element of repressed sexuality in St
Teresa's devotion to
Christ, they did not consider that this gave any ground for
portraying her as taking the initiative in indulged sexuality.
They considered the over-all tone and spirit of the video to
be indecent and had little doubt that all the above factors,
coupled with the motions of the nun whilst astride the body of
Christ and the response to her kisses and the intertwining of
the fingers would outrage the feelings of Christians, who would
reasonably look upon it as being contemptuous of the divinity
of Christ.
In these circumstances the majority were satisfied that the
video is blasphemous, that a reasonable and properly directed
jury would be likely to convict and therefore that the Board
was right to refuse to grant a Certificate. Hence this appeal
is accordingly dismissed.
It should perhaps be added that the minority on the Panel,
whilst being in no doubt that many people would find the video
to be extremely distasteful, would have allowed the appeal
because in their view it is unlikely that a reasonable and
properly directed jury would convict."
20.
As a result of the Board's determination, as upheld by the
Panel, the applicant would commit an
offence under section 9 of the
1984 Act (see paragraph 23 below) if he
were to supply the video in any
manner, whether or not for reward.
21.
The applicant received legal advice that his case was not
suitable for judicial review (see
paragraphs 30-31 below) on the
grounds that the formulation of the law of
blasphemy, as accepted by
the Panel, was an "accurate statement
of the present law".
II.
Situation of the video industry in the United Kingdom
22.
According to statistics submitted by the Government, in 1994
there were 21.5 million video-recorders in
the United Kingdom. Out of
approximately 20.75 million households in
the United Kingdom,
18 million contained at least one
video-recorder.
There were approximately 15,000 video outlets in the
United Kingdom. Videos were available for hire in between 4,000 and
5,000 video rental shops. They were also available for sale in
3,000 "high street" shops and in
between 7,000 and
8,000 "secondary" outlets such
as supermarkets, corner shops and
petrol stations.
In 1994 there were 194 million video rentals and
66 million video purchases in the United
Kingdom. It is estimated that
a further 65 million illegal copies
("pirate videos") were distributed
during that year.
III.
Relevant domestic law
A. The regulation of video works
23.
The Video Recordings Act 1984 ("the 1984 Act") regulates the
distribution of video works. Subject to certain exemptions, it is an
offence under section 9 (1) of that Act
for a person to supply or offer
to supply a video work in respect of which
no classification
certificate has been issued. Under section 7 there are
three categories of classification: works
deemed suitable for
general viewing (and to which a parental
guidance reference may be
added); works for which the viewing is
restricted to people who have
attained a specified age; and works which
may only be supplied by
licensed sex shops. The Secretary of State for the Home
Department may
require that the content of certain works
be labelled (section 8). It
is an offence to ignore such conditions,
for example by supplying
someone under 18 years of age with an
"18" classified work
(section 11).
24.
Under section 4 (1) of the 1984 Act the Secretary of State may
by notice designate any person or body as
the authority for making
arrangements for determining whether or
not video works are suitable
for classification certificates to be
issued in respect of them (having
special regard to the likelihood of
certified video works being viewed
in the home). By a notice dated 26 July 1985 the British Board of
Film Classification was so
designated. In the case of works which
are
determined in accordance with the
arrangements described above to be
suitable for classification certificates,
the Board is responsible
under section 4 (1) for making
arrangements for the issue of
certificates and making other
determinations relating to their use.
The Secretary of State's notice enjoined
the Board "to continue to seek
to avoid classifying works which are
obscene within the meaning of the
Obscene Publications Acts 1959 and 1964 or
which infringe other
provisions of the criminal law".
25.
Pursuant to section 4 (3) of the 1984 Act arrangements were
made for the establishment of the Video
Appeals Committee to determine
appeals against decisions by the Board.
B. The law of blasphemy
26.
Blasphemy and blasphemous libel are common law offences triable
on indictment and punishable by fine or
imprisonment. Blasphemy
consists in speaking and blasphemous libel
in otherwise publishing
blasphemous matter. Libel involves a publication in a permanent
form,
but that form may consist of moving
pictures.
27.
In the case of Whitehouse v. Gay News Ltd and Lemon
[1979] Appeal Cases 617 at 665, which
concerned the law of blasphemy
in England, Lord Scarman held that the
modern law of blasphemy was
correctly formulated in Article 214 of
Stephen's Digest of the
Criminal Law, 9th edition (1950). This states as follows:
"Every publication is said to be blasphemous which contains any
contemptuous, reviling, scurrilous or ludicrous matter relating
to God, Jesus Christ or the Bible, or the formularies of the
Church of England as by law established. It is not blasphemous
to speak or publish opinions hostile to the Christian religion,
or to deny the existence of God, if the publication is couched
in decent and temperate language.
The test to be applied is
as to the manner in which the doctrines are advocated and not
to the substance of the doctrines themselves."
The House of Lords in that case also decided that the mental
element in the offence (mens rea) did not
depend upon the accused
having an intent to blaspheme. It was sufficient for the prosecution
to prove that the publication had been
intentional and that the matter
published was blasphemous.
The Gay News case, which had been brought by a
private prosecutor, had been the first
prosecution for blasphemy since
1922.
28.
As stated above, the law of blasphemy only protects the
Christian religion and, more specifically,
the established
Church of England. This was confirmed by the Divisional Court
in 1991.
Ruling on an application for judicial
review of a magistrate's refusal
to issue a summons for blasphemy against
Salman Rushdie and the
publishers of The Satanic Verses, Lord
Watkins stated:
"We have no doubt that as the law now stands it does not extend
to religions other than Christianity ...
...
We think it right to say that, were it open to us to extend the
law to cover religions other than Christianity, we should
refrain from doing so.
Considerations of public policy are
extremely difficult and complex.
It would be virtually
impossible by judicial decision to set sufficiently clear
limits to the offence, and other problems involved are
formidable." (R. v. Chief Metropolitan Stipendiary Magistrate,
ex parte Choudhury [1991] 1 All England Law Reports 306 at 318)
29.
On 4 July 1989 the then Minister of State at the
Home Department, Mr John Patten, had sent
a letter to a number of
influential British Muslims, in which he
stated inter alia that:
"Many Muslims have argued that the law of blasphemy should be
amended to take books such as [The Satanic Verses] outside the
boundary of what is legally acceptable.
We have considered
their arguments carefully and reached the conclusion that it
would be unwise for a variety of reasons to amend the law of
blasphemy, not the least the clear lack of agreement over
whether the law should be reformed or repealed.
...
... an alteration in the law could lead to a rush of litigation
which would damage relations between faiths.
I hope you can appreciate how divisive and how damaging such
litigation might be, and how inappropriate our legal mechanisms
are for dealing with matters of faith and individual belief.
Indeed, the Christian faith no longer relies on it, preferring
to recognise that the strength of their own belief is the best
armour against mockers and blasphemers."
C. The availability of judicial
review as a remedy
30.
Decisions by public bodies which have consequences which affect
some person or body of persons are
susceptible to challenge in the
High Court on an application for judicial
review. Amongst the grounds
on which such a challenge may be brought
is that the body in question
misdirected itself on a point of law. The Video Appeals Committee is
such a public body because it is
established pursuant to an
Act of Parliament (see paragraph 25
above). Furthermore, its decisions
affect the rights of persons who make
video works because confirmation
of a decision that a video work cannot
receive a classification
certificate would mean that copies of that
work could not be lawfully
supplied to members of the public.
31. On an application for judicial review a court would not
normally look at the merits of any
decision made by such a body, except
where the decision was so unreasonable
that no reasonable body,
properly instructed, could have reached
it. However, where the
decision is based on a point of law and it
is alleged that the body has
misdirected itself on that point, the
decision could be challenged by
an application for judicial review. In the case of C.C.S.U.
v. Minister for the Civil Service [1984] 3
All England Law Reports
at 950, Lord Diplock, in the House of
Lords, classified under
three heads the grounds on which
administrative action is subject to
control by judicial review. He called the first ground
"illegality"
and described it as follows:
"By `illegality' as a ground for judicial review I mean that
the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to it.
Whether he has or not is par excellence a justiciable question
to be decided, in the event of a dispute, by those persons, the
judges, by whom the judicial power of the State is
exercisable."
PROCEEDINGS BEFORE THE COMMISSION
32.
Mr Wingrove applied to the Commission on 18 June 1990. He
relied on Article 10 of the Convention
(art. 10), complaining that the
refusal of a classification certificate
for his video work
Visions of Ecstasy was in breach of his
freedom of expression.
33.
The Commission declared the application (no. 17419/90)
admissible on 8 March 1994. In its report of 10 January 1995
(Article 31) (art. 31), it expressed the
opinion, by fourteen votes to
two, that there had been a violation of
Article 10 of the Convention
(art. 10). The full text of the Commission's opinion and of the
three separate opinions contained in the
report is reproduced as an
annex to this judgment (1).
_______________
Note by the Registrar
1.
For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of
Judgments and Decisions 1996-V),
but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
34.
In their final submissions, the Government requested the Court
to declare that the facts of the present
case disclose no violation of
Article 10 of the Convention (art. 10).
The applicant, for his part, invited the Court to "produce a
judgment which declares the British blasphemy
laws as unnecessary in
theory as they are in practice in any
multi-cultural democracy".
AS TO THE LAW
I.
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION (art. 10)
35.
The applicant alleged a violation of his right to freedom of
expression, as guaranteed by Article 10 of
the Convention (art. 10),
which, in so far as relevant, provides:
"1. Everyone has the right
to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without
interference by
public authority and regardless of frontiers ...
2. The exercise of these
freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
36.
The refusal by the British Board of Film Classification to
grant a certificate for the applicant's
video work Visions of Ecstasy,
seen in conjunction with the statutory
provisions making it a
criminal offence to distribute a video
work without this certificate
(see paragraph 23 above), amounted to an
interference by a
public authority with the applicant's
right to impart ideas. This was
common ground between the participants in
the proceedings.
To determine whether such an interference entails a violation
of the Convention, the Court must examine
whether or not it was
justified under Article 10 para. 2 (art.
10-2) by reason of being a
restriction "prescribed by law",
which pursued an aim that was
legitimate under that provision (art.
10-2) and was "necessary in a
democratic society".
A. Whether the interference was
"prescribed by law"
37.
The applicant considered that the law of blasphemy was so
uncertain that it was inordinately
difficult to establish in advance
whether in the eyes of a jury a particular
publication would constitute
an offence. Moreover, it was practically impossible to know what
predictions an administrative body - the
British Board of
Film Classification - would make as to the
outcome of a hypothetical
prosecution. In these circumstances, the applicant could not
reasonably be expected to foresee the
result of the Board's
speculations. The requirement of foreseeability which flows from the
expression "prescribed by law"
was therefore not fulfilled.
38.
The Government contested this claim: it was a feature common
to most laws and legal systems that
tribunals may reach different
conclusions even when applying the same
law to the same facts. This
did not necessarily make these laws
inaccessible or unforeseeable.
Given the infinite variety of ways of
publishing "contemptuous,
reviling, scurrilous or ludicrous matter
relating to God, Jesus Christ
or the Bible" (see paragraph 27
above), it would not be appropriate for
the law to seek to define in detail which
images would or would not be
potentially blasphemous.
39.
The Commission, noting that considerable legal advice was
available to the applicant, was of the
view that he could reasonably
have foreseen the restrictions to which
his video work was liable.
40.
The Court reiterates that, according to its case-law, the
relevant national "law", which
includes both statute and common law
(see, inter alia, the Sunday Times v. the
United Kingdom (no. 1)
judgment of 26 April 1979, Series A no.
30, p. 30, para. 47), must be
formulated with sufficient precision to
enable those concerned - if
need be, with appropriate legal advice -
to foresee, to a degree that
is reasonable in the circumstances, the
consequences which a given
action may entail. A law that confers a discretion is not in
itself
inconsistent with this requirement,
provided that the scope of the
discretion and the manner of its exercise
are indicated with sufficient
clarity, having regard to the legitimate
aim in question, to give the
individual adequate protection against
arbitrary interference (see, for
instance, the Tolstoy Miloslavsky v. the
United Kingdom judgment of
13 July 1995, Series A no. 316-B, pp.
71-72, para. 37, and the Goodwin
v. the United Kingdom judgment of 27 March
1996, Reports of Judgments
and Decisions 1996-II, pp. 496-97, para.
31).
41.
It is observed that, in refusing a certificate for distribution
of the applicant's video on the basis that
it infringed a provision of
the criminal law of blasphemy, the British
Board of Film Classification
acted within its powers under section 4
(1) of the 1984 Act
(see paragraph 24 above).
42.
The Court recognises that the offence of blasphemy cannot by
its very nature lend itself to precise
legal definition.
National authorities must therefore be
afforded a degree of flexibility
in assessing whether the facts of a
particular case fall within the
accepted definition of the offence (see,
mutatis mutandis, the
Tolstoy Miloslavsky judgment cited above
at paragraph 40, p. 73,
para. 41).
43.
There appears to be no general uncertainty or disagreement
between those appearing before the Court
as to the definition in
English law of the offence of blasphemy,
as formulated by the
House of Lords in the case of Whitehouse
v. Gay News Ltd and Lemon
(see paragraph 27 above). Having seen for itself the content of the
video work, the Court is satisfied that
the applicant could reasonably
have foreseen with appropriate legal
advice that the film, particularly
those scenes involving the crucified
figure of Christ, could fall
within the scope of the offence of
blasphemy.
The above conclusion is borne out by the applicant's decision
not to initiate proceedings for judicial
review on the basis of
counsel's advice that the Panel's
formulation of the law of blasphemy
represented an accurate statement of the
law (see, mutatis mutandis,
the Open Door and Dublin Well Woman v.
Ireland judgment of
29 October 1992, Series A no. 246-A, p.
27, para. 60).
44.
Against this background it cannot be said that the law in
question did not afford the applicant
adequate protection against
arbitrary interference. The Court therefore concludes that the
impugned restriction was "prescribed
by law".
B. Whether the interference
pursued a legitimate aim
45.
The applicant contested the Government's assertion that his
video work was refused a certificate for
distribution in order to
"protect the right of citizens not to
be offended in their religious
feelings". In his submission, the expression "rights of others" in
the
present context only refers to an actual,
positive right not to be
offended.
It does not include a hypothetical right held by some
Christians to avoid disturbance at the
prospect of other people's
viewing the video work without being
shocked.
In any event - the applicant further submitted - the
restriction on the film's distribution
could not pursue a legitimate
aim since it was based on a discriminatory
law, limited to the
protection of Christians, and
specifically, those of the
Anglican faith.
46.
The Government referred to the case of Otto-Preminger-Institut
v. Austria (judgment of 20 September 1994,
Series A no. 295-A,
pp. 17-18, paras. 47-48) where the Court
had accepted that respect for
the religious feelings of believers can
move a State legitimately to
restrict the publication of provocative
portrayals of objects of
religious veneration.
47.
The Commission considered that the English law of blasphemy is
intended to suppress behaviour directed
against objects of
religious veneration that is likely to
cause justified indignation
amongst believing Christians. It follows that the application of this
law in the present case was intended to
protect the right of citizens
not to be insulted in their religious
feelings.
48.
The Court notes at the outset that, as stated by the Board, the
aim of the interference was to protect
against the treatment of a
religious subject in such a manner
"as to be calculated (that is,
bound, not intended) to outrage those who
have an understanding of,
sympathy towards and support for the
Christian story and ethic, because
of the contemptuous, reviling, insulting,
scurrilous or ludicrous tone,
style and spirit in which the subject is
presented" (see paragraph 15
above).
This is an aim which undoubtedly corresponds to that of the
protection of "the rights of
others" within the meaning of paragraph 2
of Article 10 (art. 10-2). It is also fully consonant with the aim of
the protections afforded by Article 9
(art. 9) to religious freedom.
49.
Whether or not there was a real need for protection against
exposure to the film in question is a
matter which must be addressed
below when assessing the
"necessity" of the interference.
50.
It is true that the English law of blasphemy only extends to
the Christian faith. Indeed the anomaly of this state of affairs
in
a multidenominational society was
recognised by the Divisional Court
in R. v. Chief Metropolitan Stipendiary
Magistrate, ex parte Choudhury
[1991] 1 All England Law Reports 306 at
317 (see paragraph 28 above).
However, it is not for the European Court
to rule in abstracto as to
the compatibility of domestic law with the
Convention. The extent to
which English law protects other beliefs
is not in issue before the
Court which must confine its attention to
the case before it (see, for
example, the Klass and Others v. Germany
judgment of 6 September 1978,
Series A no. 28, p. 18, para. 33).
The uncontested fact that the law of blasphemy does not treat
on an equal footing the different
religions practised in the
United Kingdom does not detract from the
legitimacy of the aim pursued
in the present context.
51.
The refusal to grant a certificate for the distribution of
Visions of Ecstasy consequently had a
legitimate aim under
Article 10 para. 2 (art. 10-2).
C. Whether the interference was
"necessary in a democratic
society"
52.
The Court recalls that freedom of expression constitutes one
of the essential foundations of a
democratic society. As paragraph 2
of Article 10 (art. 10-2) expressly
recognises, however, the exercise
of that freedom carries with it duties and
responsibilities. Amongst
them, in the context of religious beliefs,
may legitimately be included
a duty to avoid as far as possible an
expression that is, in regard to
objects of veneration, gratuitously
offensive to others and profanatory
(see the Otto-Preminger-Institut judgment
cited above at paragraph 46,
pp. 18-19, paras. 47 and 49).
53.
No restriction on freedom of expression, whether in the context
of religious beliefs or in any other, can
be compatible with Article 10
(art. 10) unless it satisfies, inter alia,
the test of necessity as
required by the second paragraph of that
Article (art. 10-2). In
examining whether restrictions to the
rights and freedoms guaranteed
by the Convention can be considered
"necessary in a democratic society"
the Court has, however, consistently held
that the Contracting States
enjoy a certain but not unlimited margin
of appreciation. It is, in
any event, for the European Court to give
a final ruling on the
restriction's compatibility with the
Convention and it will do so by
assessing in the circumstances of a
particular case, inter alia,
whether the interference corresponded to a
"pressing social need" and
whether it was "proportionate to the
legitimate aim pursued"
(see, mutatis mutandis, among many other
authorities, the
Goodwin judgment cited above at paragraph
40, pp. 500-01, para. 40).
54.
According to the applicant, there was no "pressing social
need"
to ban a video work on the uncertain
assumption that it would breach
the law of blasphemy; indeed, the
overriding social need was to allow
it to be distributed. Furthermore, since adequate protection was
already provided by a panoply of laws -
concerning, inter alia,
obscenity, public order and disturbances
to places of
religious worship - blasphemy laws, which
are incompatible with the
European idea of freedom of expression,
were also superfluous in
practice.
In any event, the complete prohibition of a video work that
contained no obscenity, no pornography and
no element of vilification
of Christ was disproportionate to the aim
pursued.
55.
For the Commission, the fact that Visions of Ecstasy was a
short video work and not a feature film
meant that its distribution
would have been more limited and less
likely to attract publicity. The
Commission came to the same conclusion as
the applicant.
56.
The Government contended that the applicant's video work was
clearly a provocative and indecent
portrayal of an object of
religious veneration, that its
distribution would have been
sufficiently public and widespread to
cause offence and that it
amounted to an attack on the religious
beliefs of Christians which was
insulting and offensive. In those circumstances, in refusing to grant
a classification certificate for the
applicant's video work, the
national authorities only acted within
their margin of appreciation.
57.
The Court observes that the refusal to grant Visions of Ecstasy
a distribution certificate was intended to
protect "the rights of
others", and more specifically to
provide protection against seriously
offensive attacks on matters regarded as
sacred by Christians
(see paragraph 48 above). The laws to which the applicant made
reference (see paragraph 54 above) and
which pursue related but
distinct aims are thus not relevant in
this context.
As the observations filed by the intervenors (see paragraph 5
above) show, blasphemy legislation is
still in force in various
European countries. It is true that the application of these
laws has
become increasingly rare and that several
States have recently repealed
them altogether. In the United Kingdom only two prosecutions
concerning blasphemy have been brought in
the last seventy years
(see paragraph 27 above). Strong arguments have been advanced in
favour of the abolition of blasphemy laws,
for example, that such laws
may discriminate against different faiths
or denominations - as put
forward by the applicant - or that legal
mechanisms are inadequate to
deal with matters of faith or individual
belief - as recognised by the
Minister of State at the Home Department
in his letter of 4 July 1989
(see paragraph 29 above). However, the fact remains that there is as
yet not sufficient common ground in the
legal and social orders of the
member States of the Council of Europe to
conclude that a system
whereby a State can impose restrictions on
the propagation of material
on the basis that it is blasphemous is, in
itself, unnecessary in a
democratic society and thus incompatible
with the Convention
(see, mutatis mutandis, the
Otto-Preminger-Institut judgment cited
above at paragraph 46, p. 19, para. 49).
58.
Whereas there is little scope under Article 10 para. 2 of the
Convention (art. 10-2) for restrictions on
political speech or on
debate of questions of public interest
(see, mutatis mutandis, among
many other authorities, the Lingens v.
Austria judgment of 8 July 1986,
Series A no. 103, p. 26, para. 42; the
Castells v. Spain judgment of
23 April 1992, Series A no. 236, p. 23,
para. 43; and the
Thorgeir Thorgeirson v. Iceland judgment
of 25 June 1992, Series A
no. 239, p. 27, para. 63), a wider margin
of appreciation is generally
available to the Contracting States when
regulating freedom of
expression in relation to matters liable
to offend intimate personal
convictions within the sphere of morals
or, especially, religion.
Moreover, as in the field of morals, and
perhaps to an even greater
degree, there is no uniform European
conception of the requirements of
"the protection of the rights of
others" in relation to attacks on
their religious convictions. What is likely to cause substantial
offence to persons of a particular
religious persuasion will vary
significantly from time to time and from
place to place, especially in
an era characterised by an ever growing
array of faiths and
denominations. By reason of their direct and continuous contact with
the vital forces of their countries, State
authorities are in principle
in a better position than the
international judge to give an opinion
on the exact content of these requirements
with regard to the rights
of others as well as on the
"necessity" of a "restriction" intended to
protect from such material those whose
deepest feelings and convictions
would be seriously offended (see, mutatis
mutandis, the Müller and
Others v. Switzerland judgment of 24 May
1988, Series A no. 133, p. 22,
para. 35).
This does not of course exclude final European supervision.
Such supervision is all the more necessary
given the breadth and
open-endedness of the notion of blasphemy
and the risks of arbitrary
or excessive interferences with freedom of
expression under the guise
of action taken against allegedly
blasphemous material. In this regard
the scope of the offence of blasphemy and
the safeguards inherent in
the legislation are especially
important. Moreover the fact that the
present case involves prior restraint
calls for special scrutiny by the
Court (see, mutatis mutandis, the Observer
and Guardian
v. the United Kingdom judgment of 26
November 1991, Series A no. 216,
p. 30, para. 60).
59.
The Court's task in this case is to determine whether the
reasons relied on by the national
authorities to justify the measures
interfering with the applicant's freedom
of expression are relevant and
sufficient for the purposes of Article 10
para. 2 of the Convention
(art. 10-2).
60.
As regards the content of the law itself, the Court observes
that the English law of blasphemy does not
prohibit the expression, in
any form, of views hostile to the
Christian religion. Nor can it be
said that opinions which are offensive to
Christians necessarily fall
within its ambit. As the English courts have indicated
(see paragraph 27 above), it is the manner
in which views are advocated
rather than the views themselves which the
law seeks to control. The
extent of insult to religious feelings
must be significant, as is clear
from the use by the courts of the
adjectives "contemptuous",
"reviling",
"scurrilous", "ludicrous" to depict material of a
sufficient degree of offensiveness.
The high degree of profanation that must be attained
constitutes, in itself, a safeguard
against arbitrariness. It is
against this background that the asserted
justification under
Article 10 para. 2 (art. 10-2) in the
decisions of the
national authorities must be considered.
61.
Visions of Ecstasy portrays, inter alia, a female character
astride the recumbent body of the
crucified Christ engaged in an act
of an overtly sexual nature (see paragraph
9 above). The
national authorities, using powers that
are not themselves incompatible
with the Convention (see paragraph 57
above), considered that the
manner in which such imagery was treated
placed the focus of the work
"less on the erotic feelings of the
character than on those of the
audience, which is the primary function of
pornography"
(see paragraph 15 above). They further held that since no attempt was
made in the film to explore the meaning of
the imagery beyond engaging
the viewer in a "voyeuristic erotic
experience", the public
distribution of such a video could outrage
and insult the feelings of
believing Christians and constitute the
criminal offence of blasphemy.
This view was reached by both the Board of
Film Classification and the
Video Appeals Committee following a
careful consideration of the
arguments in defence of his work presented
by the applicant in the
course of two sets of proceedings. Moreover, it was open to the
applicant to challenge the decision of the
Appeals Committee in
proceedings for judicial review (see
paragraph 30 above).
Bearing in mind the safeguard of the high threshold of
profanation embodied in the definition of
the offence of blasphemy
under English law as well as the State's
margin of appreciation in this
area (see paragraph 58 above), the reasons
given to justify the
measures taken can be considered as both
relevant and sufficient for
the purposes of Article 10 para. 2 (art.
10-2). Furthermore, having
viewed the film for itself, the Court is
satisfied that the decisions
by the national authorities cannot be said
to be arbitrary or
excessive.
62.
It was submitted by both the applicant and the Delegate of the
Commission that a short experimental video
work would reach a smaller
audience than a major feature film, such
as the one at issue in the
Otto-Preminger-Institut case (cited above
at paragraph 46). The risk
that any Christian would unwittingly view
the video was therefore
substantially reduced and so was the need
to impose restrictions on its
distribution. Furthermore, this risk could have been reduced further
by restricting the distribution of the
film to licensed sex shops
(see paragraph 23 above). Since the film would have been dispensed in
video boxes which would have included a
description of its content,
only consenting adults would ever have
been confronted with it.
63.
The Court notes, however, that it is in the nature of
video works that once they become
available on the market they can, in
practice, be copied, lent, rented, sold
and viewed in different homes,
thereby easily escaping any form of
control by the authorities.
In these circumstances, it was not unreasonable for the
national authorities, bearing in mind the
development of the video
industry in the United Kingdom (see
paragraph 22 above), to consider
that the film could have reached a public
to whom it would have caused
offence.
The use of a box including a warning as to the film's content
(see paragraph 62 above) would have had
only limited efficiency given
the varied forms of transmission of video
works mentioned above. In
any event, here too the national
authorities are in a better position
than the European Court to make an
assessment as to the likely impact
of such a video, taking into account the
difficulties in protecting the
public.
64.
It is true that the measures taken by the authorities amounted
to a complete ban on the film's
distribution. However, this was an
understandable consequence of the opinion
of the competent authorities
that the distribution of the video would
infringe the criminal law and
of the refusal of the applicant to amend
or cut out the objectionable
sequences (see paragraph 13 above). Having reached the conclusion that
they did as to the blasphemous content of
the film it cannot be said
that the authorities overstepped their
margin of appreciation.
D. Conclusion
65.
Against this background the national authorities were entitled
to consider that the impugned measure was
justified as being necessary
in a democratic society within the meaning
of paragraph 2 of Article 10
(art. 10-2). There has therefore been no violation of Article 10 of
the Convention (art. 10).
FOR THESE REASONS, THE COURT
Holds by seven votes to two that there has been no breach of
Article 10 of the Convention (art. 10).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building,
Strasbourg, on 25 November 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules
of Court A, the following
separate opinions are annexed to this
judgment:
(a) concurring opinion of Mr
Bernhardt;
(b) concurring opinion of Mr
Pettiti;
(c) dissenting opinion of Mr De
Meyer;
(d) dissenting opinion of Mr
Lohmus.
Initialled: R. B.
Initialled: H. P.
CONCURRING OPINION OF JUDGE BERNHARDT
Personally, I am not convinced that the video film
Visions of Ecstasy should have been banned
by the refusal of a
classification certificate, and this
conviction is, inter alia, based
on my impression when seeing the
film. But it is the essence of the
national margin of appreciation that, when
different opinions are
possible and do exist, the international
judge should only intervene
if the national decision cannot be
reasonably justified.
I have finally voted with the majority for the following
reasons:
(1) A prior control and
classification of video films is not
excluded in this most sensitive area and
in view of the dangers
involved, especially for young persons and
the rights of others.
(2) Such a control requires a
proper procedure and a careful
weighing of the interests involved
whenever a classification
certificate is refused. In this respect, the present judgment
describes in detail (paragraphs 11-19) the
considerations and reasons
in the decisions of the British
authorities.
(3) In respect of the question
whether the interference was
"necessary in a democratic
society", I am convinced that the
national authorities have a considerable
margin of appreciation, and
they have made use of it in the present
case in a manner acceptable
under Convention standards.
CONCURRING OPINION OF JUDGE PETTITI
(Translation)
I voted with the majority, but for reasons which are
substantially different in structure and
content from those given in
the judgment; I have not followed the
reasoning in the
Otto-Preminger-Institut case (judgment of
20 September 1994, Series A
no. 295-A).
The first problem considered concerned the British legislation
making blasphemy a criminal offence.
Admittedly, it is regrettable that the protection afforded by
this legislation does not apply to other
religions, for such a
limitation makes no sense in 1996 now that
we have the United Nations
and UNESCO instruments on tolerance. However, the European Convention
on Human Rights does not, on the one hand,
prohibit legislation of this
type, which is found in a number of member
States, and, on the other
hand, it leaves scope for review under
Article 14 (art. 14). In the
present case no complaint had been made to
the European Court under
that Article (art. 14).
The Court had to decide the case under Article 10 (art. 10).
To my mind, the law on blasphemy provides
a basis for consideration of
the case under paragraph 2 of Article 10
(art. 10-2) and cannot
automatically justify a ban on
distribution.
Article 9 (art. 9) is not in issue in the instant case and
cannot be invoked. Certainly the Court rightly based its
analysis
under Article 10 (art. 10) on the rights
of others and did not, as it
had done in the Otto-Preminger-Institut
judgment combine Articles 9 and
10 (art. 9, art. 10), morals and the
rights of others, for which it had
been criticised by legal writers. However, the wording adopted by the
Chamber in paragraphs 50 and 53 creates,
in my opinion, too direct a
link between the law of blasphemy and the
criteria justifying a ban or
restriction on the distribution of
video-cassettes.
The fact that under the legislation on blasphemy, profanation
or defamation may give rise to a
prosecution does not in itself
justify, under Article 10 (art. 10) of the
European Convention, a total
ban on the distribution of a book or
video.
In my view, the Court ought to have made that clear. There can
be no automatic response where freedom of
expression is concerned.
The Court should, I think, have set out in its reasoning the
facts that led the Video Appeals Committee
- to which the applicant
appealed against the determination of the
British Board of
Film Classification - to prohibit
distribution of the video.
I consider that the same decision could have been reached under
paragraph 2 of Article 10 (art. 10-2) on
grounds other than blasphemy,
for example the profanation of symbols,
including secular ones (the
national flag) or jeopardising or
prejudicing public order (but not for
the benefit of a religious majority in the
territory concerned).
The reasoning should, in my opinion have been expressed in
terms both of religious beliefs and of
philosophical convictions. It
is only in paragraph 53 of the judgment
that the words "any other" are
cited.
Profanation and serious attacks on the deeply held feelings of
others or on religious or secular ideals
can be relied on under
Article 10 para. 2 (art. 10-2) in addition
to blasphemy.
What was particularly shocking in the Wingrove case was the
combination of an ostensibly philosophical
message and wholly
irrelevant obscene or pornographic images.
In this case, the use of obscenity for commercial ends may
justify restrictions under Article 10
para. 2 (art. 10-2); but the use
of a figure of symbolic value as a great
thinker in the history of
mankind (such as Moses, Dante or Tolstoy)
in a portrayal which
seriously offends the deeply held feelings
of those who respect their
works or thought may, in some cases,
justify judicial supervision so
that the public can be alerted through the
reporting of court
decisions.
But the possibility of prosecution does not suffice to make a
total ban legitimate. That question has been raised recently: can
a
breach of rules of professional conduct
(medical confidentiality) in
itself justify a total ban on a book?
Mr Wingrove's own argument and the contradictions it contained
could even have been used to supplement
the Court's reasoning.
In his application he claimed that intellectual works should
be protected against censorship on
exclusively moral or
religious grounds. In an article which is not reproduced in the
video
Mr Wingrove indicated that he was seeking
to interpret St Teresa's
writings explaining her ecstasies. In his submission, they amounted
practically to a Voltairean work or one
having anti-religious
connotations. The film is quite different.
Mr Wingrove did not even
agree to cut (which he was entitled to do
as the film-maker) the
"simulated copulation" scene
which was quite unnecessary, even in the
context of the film. Indeed, he acknowledged that as the video
stood,
it could have been called Gay Nuns in
Bondage, like a pornographic film
(see the Commission's report, decision on
admissibility, p. 32).
The use of the word "ecstasy" in the title was a source of
ambiguity, as much for people interested
in literary works as for those
interested in pornography. The sale in hypermarkets and supermarkets
of videos inciting pornographic or obscene
behaviour is even more
dangerous than the sale of books, as it is
more difficult to ensure
that the public are protected.
The recent world-wide conference in Stockholm on the protection
of children highlighted the harmful social
consequences of distributing
millions of copies of obscene or
pornographic videos to the public
without even minimal checking of their
identification marks.
Disguising content is a commercial
technique that is used to circumvent
bans (for example, videos for paedophiles
that use adolescent girls,
who have only just attained their
majority, dressed up as little
girls).
Admittedly, before it was edited, Mr Wingrove's film was
presented as having literary rather than
obscene ambitions, but its
maker chose not to dispel the ambiguity he
had created. Nor did he
seek judicial review, as it was open to
him to do, of the
Video Appeals Committee's dismissal of his
appeal against the Board of
Film Classification's refusal to grant a
classification certificate.
It is true that section 7 of the Video Recordings Act 1984
contains a variety of provisions
regulating the grant and use of
certificates, ranging from outright bans
to restrictions on viewing,
identification requirements (in sales
centres and on the cover) or
measures to protect minors. On this point, British and
North American case-law, particularly in
Canada, contains a wealth of
definitions of the boundaries between
literature, obscenity and
pornography (see the Revue du Barreau du
Québec and the Supreme Court's
case-law review).
The majority of the Video Appeals Committee took the view that
the imagery led not to a religious
perception, but to a perverse one,
the ecstasy being furthermore of a
perverse kind. That analysis was
in conformity with the approach of the
House of Lords, which moreover
did not discuss the author's intention
with respect to the moral
element of the offence. The Board's Director said that it would have
taken just the same stance in respect of a
film that was contemptuous
of Mohammed or Buddha.
The decision not to grant a certificate might possibly have
been justifiable and justified if, instead
of St Teresa's ecstasies,
what had been in issue had been a video
showing, for example, the
anti-clerical Voltaire having sexual
relations with some prince or
king.
In such a case, the decision of the European Court might well
have been similar to that in the Wingrove
case. The rights of others
under Article 10 para. 2 (art. 10-2)
cannot be restricted solely to the
protection of the rights of others in a
single category of religious
believers or philosophers, or a majority
of them.
The Court was quite right to base its decision on the
protection of the rights of others
pursuant to Article 10 (art. 10),
but to my mind it could have done so on
broader grounds, inspired to
a greater extent by the concern to protect
the context of
religious beliefs "or ... any
other", as is rightly pointed out in
paragraph 53 of the judgment.
In the difficult balancing exercise that has to be carried out
in these situations where religious and
philosophical sensibilities are
confronted by freedom of expression, it is
important that the
inspiration provided by the European
Convention and its interpretation
should be based both on pluralism and a
sense of values.
DISSENTING OPINION OF JUDGE DE MEYER
1.
This was a pure case of prior restraint, a form of interference
which is, in my view, unacceptable in the
field of freedom of
expression.
What I have written on that subject, with four other judges,
in the case of Observer and Guardian v.
the United Kingdom (1) applies
not only to the press, but also, mutatis
mutandis, to other forms of
expression, including video works.
_______________
1.
Judgment of 26 November 1991, Series A no. 216, p. 46.
_______________
2.
It is quite legitimate that those wishing to supply video works
be obliged to obtain from some
administrative authority a
classification certificate stating whether
the works concerned may be
supplied to the general public or only to
persons who have attained a
specified age, and whether, in the latter
case, they are to be supplied
only in certain places (2).
_______________
2.
Section 7 of the Video Recordings Act 1984.
_______________
Of course, anything so decided by such authority needs
reasonable justification and must not be
arbitrary. It must, if
contested, be subject to judicial review,
and it must not have the
effect of preventing the courts from
deciding, as the case may be,
whether the work concerned deserves, or
does not deserve, any sanction
under existing law.
3.
Under the system established by the Video Recordings Act 1984
the British Board of Film Classification
and the Video Appeals
Committee may determine that certain video
works are not suitable for
being classified in any of its three
categories (3), and they can thus
ban them absolutely ab initio.
_______________
3.
Section 4 of the Act.
_______________
This was indeed what actually happened in respect of the piece
in issue in the present case.
It certainly goes too far.
4.
To the extent that the criminal law of blasphemy might have
been infringed by the applicant, I would
observe that the necessity of
such laws is very much open to question.
I would rather join Mr Patten's remark that for the faithful
"the strength of their own belief is
the best armour against mockers
and blasphemers" (4).
_______________
4.
See paragraph 29 of the present judgment.
_______________
DISSENTING OPINION OF JUDGE LOHMUS
1.
I am unable to agree with the conclusion of the majority that
the interference with the applicant's
right to freedom of expression
was "necessary in a democratic
society".
2.
The British Board of Film Classification and the
five-member panel of the VAC took the view
that the applicant would
commit an offence of blasphemy if his
video work Visions of Ecstasy
were to be distributed (see paragraph 20
of the judgment).
3.
In cases of prior restraint
(censorship) there is interference
by the authorities with freedom of
expression even though the members
of the society whose feelings they seek to
protect have not called for
such interference. The interference is based on the opinion of
the
authorities that they understand correctly
the feelings they claim to
protect.
The actual opinion of believers remains unknown. I think
that this is why we cannot conclude that
the interference corresponded
to a "pressing social need".
4.
The law of blasphemy only protects the Christian religion and,
more specifically, the established Church
of England (see paragraph 28
of the judgment). The aim of the interference was therefore to
protect
the Christian faith alone and not other
beliefs. This in itself raises
the question whether the interference was
"necessary in a democratic
society".
5.
As the Court has consistently held, the guarantees enshrined
in Article 10 (art. 10) apply not only to
information or ideas that are
favourably received or regarded as
inoffensive, but also to those that
shock or disturb. Artistic impressions are often conveyed
through
images and situations which may shock or
disturb the feelings of a
person of average sensitivity. In my view, the makers of the film in
issue did not exceed the reasonable limit
beyond which it can be said
that objects of religious veneration have
been reviled or ridiculed.
6.
The majority has found that in the field of morals the
national authorities have a wide margin of
appreciation. As in that
field, "there is no uniform European
conception of the requirements of
'the protection of the rights of others'
in relation to attacks on
their religious convictions" (see
paragraph 58 of the judgment). The
Court makes distinctions within Article 10
(art. 10) when applying its
doctrine on the States' margin of
appreciation. Whereas, in some
cases, the margin of appreciation applied
is wide, in other cases it
is more limited. However, it is difficult to ascertain what principles
determine the scope of that margin of
appreciation.