The Gazette 1994

GAZETTE

M W H

APRIL 1994

which was reflected in Austria in the terms fixed for such media under Article 1.2 of the Constitutional Broadcasting Law of 1974, namely to guarantee the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and j bodies responsible for programmes. ! Broadcasting Corporation, made it possible for the authorities to ensure compliance with those requirements. The court had frequently stressed the fundamental role of freedom of expression in a democratic society, in j particular where, through the press, it j served to impart information and ideas of general interest to which the public was moreover entitled to receive. See, for example, mutatis mutandis, The Observer and The Guardian v United Kingdom, 1991 Series A No. 216, pp. 29-30 paragraph 59. Such an ! undertaking could not be successfully | accomplished unless it was founded on | the principle of pluralism, of which the state was the ultimate guarantor. That observation was especially valid in relation to audio-visual media, whose ! programmes were often broadcast very widely. The court was of the opinion that of all the means of ensuring those values were respected, a public monopoly was the one which imposed the greatest restrictions on the freedom of expression, namely the total impossibility of broadcasting otherwise than through a local cable station. The far-reaching character of such restrictions meant that they could only be justified where they corresponded to a pressing need. The court considered that as a result of the technical progress made over the last decades, justification for those restrictions could no longer today be found in considerations relating to the number of frequencies and channels available. The Austrian Government accepted this contention. j | In the Government's view, only the j j system in force, based on the monopoly of the Austrian j

black cap is carried. Daily court dress for High Court judges varies, depending on which division of the High Court they are working in. For example, a high court judge in the Chancery and Family divisions will wear a court coat, waistcoat, bands, a skirt or trousers, a black silk gown and a short wig. A High Court judge dealing with civil work in Queen's ; Bench will wear a black robe faced i with fur (in summer, a violet robe ; faced with silk), a black scarf, girdle | and a scarlet tippet. A Circuit judge in England and Wales when in ceremonial court dress wears knee breeches, stockings, buckled shoes, lace jabot under a violet robe with lilac facings, a lilac tippet, a violet cloth hood with lilac facings and j a full-bottomed wig. The daily court dress for a Circuit judge is, on the whole, the same as the ceremonial | dress, save that the hood is not worn and a short bottomed wig is worn. | A District judge in England and Wales sitting in open court wears a short wig | and a black gown over ordinary dark i clothing. On ceremonial occasions the I attire is similar but men may wear a | short black coat, waistcoat and striped trousers. The European Court of Human Rights, Strasbourg, has delivered a judgment in ! Informationsverein Lentia and Others v Austria (Cases Nos. 36/1992/381/445- 459) on November 24, 1993, The Times, Law Report, December 1, 1993) which has ramifications for Ireland in the context of monopoly law and freedom of expression. The court held ! that the fact that applicants had been prohibited, under Austrian law, from setting up and operating a radio or television station constituted a violation of the freedom of expression as guaran- teed by Article 10 of the European Convention on Human Rights. Article 10.1 of the Convention on Human Rights provides as follows: "Everyone has the right to freedom of expression. This right Monopolies and Freedom of Expression

shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting television or cinema enterprises."

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Article 10(2) sets down certain restraints on the exercise of these freedoms.

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The applicants complained that they had each been unable to set up a radio ! station or, in the case of j Informationsverein Lentia, a television station, because under Austrian ! legislation that right was restricted to | the Austrian Broadcasting Corporation. The court observed in the first place that the restrictions in issue amounted | to an interference with the exercise by the applicants of their freedom to impart information and ideas. The only question which arose was therefore whether such interference had been justified. The court reiterated that the ; object and purpose of the third ! sentence of article 10.1 and the scope j of its application had to be considered | , in the context of the article as a whole j i and in particular in relation to the ! requirements of article 10.2 to which : licensing measures remained subject. The court reasoned that the purpose of that provision was to make it clear that i states were permitted to regulate by a j licensing system the way in which | broadcasting was organised in their territories, particularly in its technical aspects. (See Groppera Radio AG and Others v Switzerland, 1990 Series A. No. 173, paragraph 61.) The issue arose whether the interferences had been necessary in a democratic society. The court considered that the contracting states enjoyed a margin of appreciation in assessing the need for interference but that margin went hand in hand with European supervision and its extent would vary according to the circumstances. The Austrian Government had drawn attention to the political dimension of the activities of the audio-visual media i j

The court considered that the interferences in issue had been

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