SLP 07 (2014)

reception of signals by satellite dishes, the telecommunication satellite should guarantee the secrecy of telecommunication and their signals should not be transmitted without a permission of the telecommunication authority of the receiving State, in this case of the Soviet Union. This last obligation flew from the provisions of the Constitution of the International Telecommunication Union, which obliges the Member States to take all possible measures to ensure the secrecy of international correspondence (Article 37), 23 as well as the Radio Regulations (17.1-17.3 RR) which still require the Administrations to prohibit and prevent the unauthorized interception of radiocommunications not intended for the general use of the public. The choice of the practical measures ensuring the secrecy of telecommunications was left to the administrations of the Member States, in this case of Switzerland. The Court stated that Article 10 of the Convention applied not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information (para 47 of the decision). The limitation in the form of requirement to obtain a license of broadcasting according to paragraph 1 of Article 10 is subject to the general requirements of Article 10 paragraph 2 of the Convention. 24 Consequently, the question whether the interference complained of was “prescribed by law” has to be answered by the national legislation taken together with the relevant provisions of the ITU Constitution and the Radio Regulations (para 5). Their status as law however, remains doubtful, because they might lack the required clarity and precision, leaving a substantial margin of appreciation on implementing measures to the national authorities. However, despite of the fact that the complained interference was in pursuance of the two aims compatible with the Convention – the prevention of disorder in telecommunication and the need to prevent the disclosure of confidential information (para 59) – the prohibition to receive and impart the data from the Soviet telecommunication satellite – violated the proportionality principle: The later technical developments – the appearance of telecommunication satellites allowing direct reception of TV programs without the consent of authorities of broadcasting States, together with the lack of protests of ITU signatories against such reception (para 62) – made the specific legal regime of telecommunication satellites obsolete; therefore, the interference was not “necessary” in a democratic society. Whereas the majority of judges (16:2) held that there was a breach of Article 10 by Switzerland and ordered to pay the applicant company costs and expenses in the amount of 25.000 Swiss francs, the dissenting opinion considered the prohibitive measure to be a reasonable response to the international undertakings entered by the Switzerland in the ITU. Interesting is the reasoning of the majority of judges by the

23 At the time of the decision Article 22. 24 See judgment ECtHR, Groperra Radio AG and Others v. Switzerland, op. cit. , para 61.

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