The Gazette 1994

GAZETTE

W H

APRIL 1994

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

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

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.

Monopolies and Freedom

of Expression

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

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."

Article 10(2) sets down certain

restraints on the exercise of these

freedoms.

The applicants complained that they

had each been unable to set up a radio

! station or, in the case of

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

of its application had to be considered |

, in the context of the article as a whole

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

states were permitted to regulate by a

licensing system the way in which

broadcasting was organised in their

territories, particularly in its technical

aspects. (See

Groppera Radio AG and

Others

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

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

bodies responsible for programmes.

In the Government's view, only the

system in force, based on the

monopoly of the Austrian

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

particular where, through the press, it

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.

The court considered that the

interferences in issue had been

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