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GAZETTE
W B
DECEMBER 1992
•ir i : »• u-
ill M l In
A
i - i
) r i l ^ k • El 1 6 6 |
by Eamonn G. Hall
Freedom to Receive and
Impart Information Violated
by Ireland
T h e Eu r o p e an Co u rt of H u m a n
Rights in
Open Door Counselling
Ltd. and Dublin Well Woman Centre
Ltd.
-v-
Ireland,
( j u d gme nt delivered
on October 29, 1992), held that an
injunction granted by the Irish
Su p r eme Co u rt restraining counselling
services f r om, inter alia, providing
pregnant women with i n f o rma t i on
concerning a b o r t i on facilities a b r o ad
violated the applicants' right to
receive a nd imp a rt i n f o rma t i on as
guaranteed by article 10 of the
Eu r o p e an Convention on H u m a n
Rights. T he decision was by a
majority, 15 votes to 8.
Article 10 of the Co n v e n t i on
provides, inter alia, t h at the right to
f r e e d om of expression includes
f r e e d om to hold o p i n i o ns a nd to
receive a nd i mp a rt i n f o r ma t i on a n d
ideas w i t h o ut interference by public
authority.
T\vo a p p l i c a t i o ns were lodged with
the E u r o p e an C omm i s s i on of
H u m a n Rights in August a nd
September, 1988: the first by Op en
D o o r Co un s e l l i ng Ltd, a c omp a ny
which was e n g a g e d, inter alia, in
non-directive counselling of p r e g n a nt
women in Ireland c o n c e r n i n g, if
requested, the possibility of
o b t a i n i ng a b o r t i o ns in Gr e at Britain.
T h e second was b r o u g ht by Du b l in
Well Wom an Ce n t re Ltd, a c omp a ny
involved in similar activities, Ms.
Bonnie Maher,
a citizen of the USA
w h o wo r k ed as a trained counsellor
for the Well Wo m an Centre, Ms.
Ann Downes,
an Irish citizen, w h o
also worked as a counsellor there,
Mr s. X a n d Ms.
Maeve Geraghty,
b o t h Irish citizens of child-bearing
age.
P r o c e e d i ngs h ad been b r o u g ht
against the a p p l i c a nt c omp a n i es in
Ireland by the A t t o r n ey Ge n e r al at
the request of the Society for the
P r o t e c t i on of U n b o r n Ch i l d r e n. T h e
S u p r eme Co u rt on Ma r ch 16, 1988
f o u n d t h at non-directive counselling
assisted in the d e s t r u c t i on of the life
of the u n b o r n, c o n t r a ry to the
c o n s t i t u t i o n al right to life of the
u n b o r n expressly g u a r a n t e ed by
article 40.3.3 of Bu n r e a c ht na
hE i r e a nn (the Co n s t i t u t i on of
Ireland).
T h e c o u r ts in Ireland h a d restrained
the a p p l i c a nt c omp a n i es a n d their
servants or agents f r om assisting
p r e g n a nt women within the
jurisdiction to travel a b r o ad to
o b t a in a b o r t i o ns by referral to a
clinic, by the ma k i ng for t h em of
travel a r r a n g eme n t s, or by i n f o r m i ng
t h em of the identity, a n d location of
a n d the m e t h od of c ommu n i c a t i on
with, a specified clinic or clinics, or
otherwise.
T h e C o u rt of H u m a n Rights n o t ed
t h at the Irish Go v e r nme nt accepted
t h at the i n j u n c t i on interfered with
the f r e e d om of the c o r p o r a te
a p p l i c a n ts to i mp a rt i n f o r ma t i o n. It
also f o u nd t h at there was an
interference with the rights of the
a p p l i c a nt counsellors to i mp a rt
i n f o r ma t i on a nd the rights of Mr s.
X a n d Ms. Ge r a g h ty to receive
i n f o r ma t i on in the event of being
p r e g n a n t.
To d e t e rmi ne wh e t h er such an
interference entailed a violation of
Article 10 of the Co n v e n t i o n, the
C o u r t h ad to examine wh e t h er or
not it was j u s t i f i ed u n d er Article
10, p a r a g r a ph 2, by reason of
being a restriction prescribed by
law which was necessary in a
d emo c r a t ic society on o ne or
o t h er of the g r o u n ds therein
specified.
T h e C o u rt recalled t h at the State's
discretion in the field of protection
of mo r a ls was n ot un f e t t e r ed a n d
unreviewable (see mu t a t is mu t a n d i s,
Norris
-v-
Ireland
(1988) Series A,
No. 142, p. 20 p a r a g r a ph 45). T he
Co u rt h a d to d e t e rm i ne wh e t h er
there existed a pressing social need
for the me a s u r es in question a n d, in
particular, wh e t h er the restriction
c omp l a i n ed of was p r o p o r t i o n a te to
the legitimate a im p u r s u e d. In t h at
context, the C o u rt recalled that
f r e e d om of expression was also
applicable to i n f o r ma t i on or ideas
that o f f e n d, shock or d i s t u rb the
State or any section of the
p o p u l a t i o n.
T h e Co u rt of H u m a n Rights was
first struck by the a b s o l u te n a t u re of
the S u p r eme C o u rt order which
i mp o s ed a p e r p e t u al restraint o n the
provision of i n f o r ma t i on to p r e gn a nt
women c o n c e r n i ng a b o r t i on facilities
a b r o ad regardless of age or state of
health or their reasons for seeking
counselling o n the t e rm i n a t i on of
pregnancy. On t h at g r o u nd a l o ne the
restriction a p p e a r ed over-broad a nd
d i s p r o p o r t i o n a t e.
O t h er factors i n f l u e n c ed the Co u rt
of H u m a n Rights. In the first place,
the c o r p o r a te a p p l i c a n ts were
engaged in the counselling of
p r e g n a nt women in the course of
which counsellors neither a d v o c a t ed
n or e n c o u r a g ed a b o r t i o n, b ut
c o n f i n ed themselves to an
e x p l a n a t i on of the available o p t i o n s.
T h e decision as to wh e t h er or not
to act o n the i n f o r ma t i on so
provided was t h at of the w om an
c o n c e r n e d.
In the second place, i n f o r ma t i on
c o n c e r n i ng a b o r t i on facilities a b r o ad
could be o b t a i n ed f r om o t h er
sources in Ireland such as ma g a z i ne
a n d t e l e p h o ne directories or by
p e r s ons with c o n t a c ts in Gr e at
Britain. T h e i n f o r ma t i on t h at the
orders of the Irish c o u r ts sought to
restrict was therefore already
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