The ECHR judgment of 30 January 2018 in the case of the company "Sekmadienis Ltd." (Sekmadienis Ltd.) v. Lithuania" (application no. 69317/14).
In 2014, the applicant company was assisted in preparing the application. Subsequently, the application was communicated to Lithuania.
In the case, a complaint was successfully considered on the appointment of a commercial company a fine for the distribution of advertisements of clothes with the image of inscriptions of religious content. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant company was fined for an amount equivalent to 580 euros, by the public authority for the protection of consumers' rights for violating subparagraph (1) of paragraph 2 of article 4 of the Advertising Law in connection with the conduct of an advertising campaign that violates public morality. The campaign consisted of showing a series of commercials in which models in designer clothes were shot with the inscriptions: "Jesus, what pants!", "Virgin Mary, what a dress!" and "Jesus [and] Mary, that you are clothed!". Complaints of the applicant company in the domestic courts were rejected.
ISSUES OF LAW
The fine applied to the applicant company was an interference with her right to freedom of expression, pursued the legitimate aims of protecting morals based on the Christian faith and protecting the rights of religious people not to be insulted on the basis of their beliefs.
The Court ruled that there was no need to determine whether the interference had been prescribed by law, since in any case it was not necessary in a democratic society.
Firstly, the commercials (in which the unmistakable similarity between the depicted persons and religious figures were created) were not intended to participate in any public discussion concerning religious issues or any other issues of common interest, so the margin of appreciation of the domestic authorities was, respectively, wider.
Secondly, the commercials at first glance did not seem unreasonably offensive or defiling or inciting hatred on the basis of religious beliefs, and they did not constitute unreasonable and offensive attacks on religion. Consequently, it was the domestic courts that had to provide relevant and sufficient evidence of why the commercials, however, were contrary to public morality.
Thirdly, the arguments given by the domestic courts and other authorities could not be considered relevant and sufficient, since (i) the authorities did not give proper justification for why the reference to religious symbols in the commercials was offensive or why the way of life that was "incompatible with the principles of a believer", necessarily incompatible with public morality; (ii) the authorities did not consider the argument of the applicant company that the names Jesus and Mary in the commercials were not used as religious references, but as emotional mentions, common in the oral language of the Lithuanian language and thereby creating a comic effect; (iii) even though all decisions of domestic courts referred to "believing people", the only religious group that was consulted during the trial was the Roman Catholic Church, despite the existence of other Christian and non-Christian communities in Lithuania; (iv) even assuming that the authorities of the respondent State were right about the view that commercials should be considered insulting to the majority of the Lithuanian population professing the Christian faith would be incompatible with the fundamental convention values if the exercise of conventional rights by a minority depended on whether the majority accepts them.
As a result, the domestic authorities failed to establish an equitable balance between, on the one hand, the protection of public morals and the rights of believers, and, on the other, the applicant's right to freedom of expression. The wording of their decisions confirmed that the authorities gave an absolute advantage to protecting the feelings of believers and did not pay proper attention to the right of the applicant company to freedom of expression.
In the case there was a violation of the requirements of Article 10 of the Convention (unanimously adopted).
In application of Article 41 of the Convention, the Court awarded the applicant company EUR 580 in respect of pecuniary damage.