Information Note on the Court’s case-law 253
Gachechiladze v. Georgia – 2591/19
Judgment 22.7.2021 [Section V]
Freedom of expression
Lack of relevant and sufficient reasons to justify fine, forced product recall and ban on future use of condom packaging designs: violation
Facts – The applicant produced condoms with various designs on the packaging, to be sold online and via vending machines. Four of her designs became the subject of administrative-offence proceedings, on the basis that they constituted unethical advertising under the Advertising Act. During first-instance proceedings, the applicant relied, unsuccessfully, on various cases heard by the Constitutional Court to argue that sufficient justification had not been given as to why the images had been in breach of the Act. The applicant was fined, ordered to cease using and disseminating the relevant designs and to issue a product recall in respect of those products already distributed. She appealed unsuccessfully.
Law – (a) Whether there had been no significant disadvantage – Article 35 § 3 (b):
The fine of approximately EUR 165 did not seem particularly onerous, especially considering that the applicant was a successful entrepreneur. However, she had also claimed to have suffered a loss of income on account of the ban on using the four disputed designs on her products. The applicant had been ordered to recall and, therefore, stop selling merchandise of significant financial value. She had also been banned from using those designs in the future and, as a result, the impugned measures had been of such nature and magnitude that, potentially, they could have caused her to suffer an important financial impact. Accordingly, even if the applicant had not submitted a detailed financial account, having regard to the sweeping nature of the impugned measures, the Court could not accept that those measures had had an insignificant impact on her.
Further, the domestic court’s application of the Advertising Act in respect of what they regarded as unethical advertising contrary to the religious and national values of Georgian society, and whether such an interpretation was compatible with the principles established in the Constitutional Court’s practice and the Court’s case-law, had concerned important questions of principle and went beyond the scope of the applicant’s case.
Therefore, given what had been at stake for the applicant, as well as considering the important questions of principle arising in her case, it was not appropriate to dismiss the present application with reference to Article 35 § 3 (b).
Conclusion: admissible (unanimously).
(b) Whether there had been a violation of the applicant’s right to freedom of expression – Article 10:
The imposition of the fine, the obligation to issue a product recall, and the ban on the future use of the disputed designs had constituted an interference with the applicant’s right to freedom of expression. The Court proceeded on the assumption that the impugned measures had a basis in domestic law, despite the lack of reference to previous domestic case-law concerning the concept of unethical advertising involving religious symbols, and the Court was prepared to accept that the interference in respect of all four designs had pursued the legitimate aims of protecting the religious rights of others and/or protecting public morals.
The Court had to determine whether the designs used by the applicant had only had a commercial purpose. The applicant’s brand also appeared to have aimed at initiating and/or contributing to a public debate concerning various issues of general interest. In particular, the declared objective of the brand, expressed at the time of its launch, had been to shatter stereotypes and “to aid a proper understanding of sex and sexuality”. Some of the images used by the applicant had concerned same-sex relationships (see, in so far as negative attitudes towards the LGBT community in Georgian society are concerned, Identoba and Others v. Georgia). Several designs also appeared to have been a social as well as political commentary on various events or issues. It was also relevant to note that the organisation which had launched a complaint in respect of the applicant’s brand had apparently been active in civil and political matters. The Court therefore could not accept that the applicant’s “expression” had to be treated as having been made solely in a commercial context. In circumstances where a message on issues of public interest had at least been partly involved, the margin of appreciation afforded to the domestic courts had necessarily been narrower compared to situations concerning solely commercial speech.
As to the four disputed designs, one of them had featured the text “the Royal Court inside Tamar” and had referred the former female ruler of Georgia, King Tamar, who had been canonised as a saint by the Georgian Orthodox Church. Canonising a public figure or, indeed, any person, could not of itself serve to exclude a discussion of his or her persona in public debate. Nor should, contrary to what the domestic courts’ reasoning suggested, the choice of the medium of expression – the production and dissemination of condoms, in the present case – be deemed in and of itself inappropriate in the assessment of whether the expression could contribute to a public debate on matters important to society. However, the applicant had failed, at domestic level, to explain why or how the use of that persona on condoms with the sign which had accompanied it had either started or contributed to any public debate on a matter of general interest. It was regrettable that the domestic courts had not assessed the meaning of the text accompanying the disputed image. Nonetheless, in the absence of convincing arguments raised by the applicant at domestic level, it was difficult to accept that the domestic authorities had erred in finding that the design could be seen as a gratuitous insult to the object of veneration of Georgians following the Orthodox Christian faith.
As concerns the remaining designs, however, the circumstances were different. As regards the design featuring a panda face and referencing a Christian holy day, the Court noted the appellate court’s reasoning that the image and accompanying text had unjustifiably insulted the lifestyle of practising Orthodox Christians and the religious teaching that sexual relations should be avoided during the fast related to important religious holidays. However, those reasons were not sufficient to justify the necessity of the interference in a democratic society. In particular, the fact that the design had merely replicated a popular, pre-existing piece of artistic expression by an anonymous group called Panda, could not be overlooked. As to its content, the piece appeared to have been a satirical take on different phrases used frequently in Georgia, essentially constituting the criticism of various ideas, including those relating to religious teachings and practices. Against that background, the appellate court had effectively left unaddressed the crucial question of whether there had existed any “pressing social need” to limit the dissemination of the disputed design.
The two remaining designs had featured a female left hand with a condom placed over two raised fingers and an image of a crown apparently made from a condom with a caption referring to a historical event. As regards the former image, the applicant’s argument about the absence of any religious connotation, on account of the fact that it had depicted a female left hand rather than the right hand used in a religious contact, and suggesting the lack of a legal basis for the interference, had been left unaddressed. While it could not be excluded that even the most trivial image might contain elements provoking very specific associations with a religious symbol, it had been for the domestic courts to demonstrate why that had been the case with regard to the image of a female hand, and they had failed to do so. As regards the latter image, despite the applicant’s submissions, it had remained unclear throughout the proceedings against her why the domestic courts had considered that the image could fall within the definition of unethical advertising provided for in the Advertising Act. Nor had it been explained whether there had existed any “pressing social need”, within the meaning of the Court’s case-law, to limit the dissemination of those two designs. Accordingly, none of the reasons given by the domestic courts had been relevant to justify the necessity and proportionality of the interference with the applicant’s freedom of expression.
Finally, the Court took issue with the apparent implication in the domestic courts’ decisions that the views on ethics of the members of the Georgian Orthodox Church took precedence in the balancing of various values protected under the Convention and the Constitution of Georgia. Such an implication went against the views of the Constitutional Court and was at odds with relevant international standards. In a pluralist democratic society those who chose to exercise the freedom to manifest their religion had to tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.
In the light of the foregoing, at least in so far as three of the four disputed designs were concerned, the reasons adduced by the domestic courts had not been relevant and sufficient to justify an interference under Article 10 § 2.
Conclusion: violation (unanimously).
(See also Identoba and Others v. Georgia, 73235/12, 12 May 2015, Legal summary; Sekmadienis Ltd. v. Lithuania, 69317/14, 30 January 2018, Legal Summary)