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Why the sole prohibition of provocation was relevant and sufficient?

Murphy

43. They rejected the idea of permitting limited religious advertising. In the first place, any limitation would have unequal consequences for broadcasters. The national broadcaster (RTE) would be compelled to broadcast any advertisement which satisfied the relevant criteria whereas independent broadcasters would be free to refuse, accept or favour any religious advertising satisfying such criteria on purely commercial grounds. Indeed, permitting some form of religious broadcasting would have unequal consequences for religions with the larger religions potentially exploiting their dominant position or resources to obtain access to the broadcast media to the prejudice of smaller religions. The present prohibition, in contrast, ensured that one viewpoint was not allowed to dominate over another and it promoted a “level playing field” for all religions irrespective of their wealth, their dominance, their power and their current popularity (United Christian Broadcasters v. the United Kingdom, application no. 44802/98, decision of 7 November 2000).

Secondly, the assessment of any such restrictions would be inherently problematic. Restricting the amount of advertising from certain religious groups could easily have been perceived as discriminatory - individuals might have been prepared to accept that no one could advertise, but to control advertising by certain religions was bound to inflame some religious sensibilities. In addition, the Government wondered whether it was indeed possible to distinguish between the passionate and committed preacher and the incendiary proselytiser. A limitation based on the content of the advertisement raised the spectre of subjective religious censorship by either the State or by the broadcasters themselves. The involvement of the State, or indeed of any non-State agent, in such censorship could potentially be considered offensive of itself and, further, there was a risk that the familiar would be considered more permissible than the marginal and unfamiliar. The Government also rejected the idea of a limitation based on the level of offence as suggested by the applicant (advertising which was “likely and bound” or “calculated” to cause offence): the Government reiterated that in the Irish context there was no such thing as “a little bit of offence” as the fact of religious advertising was considered of itself to be potentially offensive.

Thirdly, the Government noted that section 65 of the 2001 Act had somewhat diluted the force of section 10(3) of the 1988 Act. However, the Government maintained that the State was entitled to consider in 1960 and in 1988 that a restraint on all broadcasting of religious advertising was necessary whether the message was purely informational or not. This choice was not undermined by the decision incorporated in the 2001 Act to allow the broadcasting of informational advertisements only. In any event, the applicant's advertisement would, in the Government's view, have still fallen foul of section 65 of the 2001 Act. Furthermore, the new regime had its own associated difficulties: the dividing line between religious information and the underpinning religious assumptions of a message was difficult to establish.


Date: 2016-01-05; view: 872


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