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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

– 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.

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.

ECtHR,

Tele 1 Privatfernsehgesellschaft mbH v. Austria

, Appl. No. 32240/96, Judgment, 21 September 2000.

ECtHR,

Khurshid Mustafa and Tarzibachi v. Sweden

, Appl. No. 23883/06, Judgment, 16 December 2008.