SLP 07 (2014)

later practice of Member States of the ITU and by the lack of protests against a direct reception of TV signals from telecommunication satellites: Interestingly, there is no legal evaluation of this practice in the body of the decision; it ca be seen as a “birth” of an international customary rule making the prohibition of distributing specific telecommunication signals obsolete. Also the decision Tele 1 Privatfernsehgesellschaft v. Austria (Second Section), which became final in 2001 25 – dealt with the legislation on licensing of broadcasting. The applicant alleged that the Austrian authorities’ decision refusing it a license to set up and operate a terrestrial TV transmitter violated its right to freedom of expression. The refusal was based on the fact that the only legislation enabling the authorization of terrestrial broadcasting was enacted in respect of the than monopolist Austrian Broadcasting Corporation; there was no respective legislation in the respect of regional TV in 1994, the year of the procedure before the national Telecommunication Office. The right to apply for a cable or satellite-broadcasting license introduced by the later 1997 Cable and Satellite Broadcasting Act was not considered an alternative by the applicant. The Court found a violation of Article 10 in the period where no alternative to the Austrian Broadcasting Corporation was possible because of the missing legal basis for the license to set up a TV transmitter. No disproportionate interference has been found, however, in the period of the step by step liberalization of broadcasting: Despite of reserving terrestrial TV to the monopolist, the applicant had a possibility to apply for a license in alternative ways of broadcasting (cable, satellite). No compensation was declared payable by the Court: It held the claim for pecuniary damage based on the assumption that the license would have been obtained if Austrian legislation had been in conformity with Article 10 of the Convention, for speculative. It is interesting to observe how the Court dealt with the question of accessibility of alternative means of communication, especially with the comparison of diverse forms of TV (terrestrial and cable, para 39): On the basis of data given by both parties, it even found itself “satisfied” that, in the Vienna area, cable TV broadcasting offered private broadcasters “a viable alternative to terrestrial TV broadcasting” and concluded that “thus, the interference with the applicants right to impart information …can no longer be regarded as being disproportionate.” Interestingly, the possibility to use other means of information was found irrelevant in the judgment dealing with the right to receive information from direct broadcasting satellites – the case Mustafa and Tarzibachi decided by the Third Section of the Court in 2008. 26 It dealt with the right of an Iraqi – origin couple to install a satellite dish in a rented flat in Sweden, which was denied by its landlords; the maintenance of the dish was finally followed by the termination of the tenancy agreement.

25 ECtHR, Tele 1 Privatfernsehgesellschaft mbH v. Austria , Appl. No. 32240/96, Judgment, 21 September 2000. 26 ECtHR, Khurshid Mustafa and Tarzibachi v. Sweden , Appl. No. 23883/06, Judgment, 16 December 2008.

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