Gay News and Lemon v United Kingdom (1982) 5 EHRR 123.
1. The applicants, who are respectively the publisher and the responsible editor of a journal for homosexuals, were found guilty of the common law offence of blasphemous libel in connection with the publication of a certain poem. They complain that this conviction amounted to an unjustified interference with their freedom of expression as guaranteed by Article 10 of the Convention. They, further claim that the publication of the poem amounted to an exercise of their right to freedom of thought and religion within the meaning of Article 9 of the Convention, and that the interference with this right was likewise unjustified. Apart from the argument that the restriction imposed on them was not necessary in a democratic society for any of the legitimate purposes enumerated in the above two Convention Articles, the applicants submit in particular that their conviction was based on legal principles which had not existed, or at least had not been defined with sufficient clarity, at the time of the commission of the offence. In this respect they claim, that the restriction was not 'prescribed by law' as required under' paragraph (2) of Articles 9 and 10, and they allege in addition a violation of Article 7 of the Convention. The applicants finally complain that they have been discriminated against, contrary to Article 14 of the Convention, in the exercise of their freedom under Articles 9 and 10 of the Convention.
2. The principal issues arise under, or in connection with, Article 10 of the Convention...
3. There can be no doubt that the applicants' freedom of expression, and more particularly their freedom to express ideas which is expressly included in Article 10 (1) of the Convention, has been interfered with, and that this interference which took the special form of a penalty, needs to be justified under the second paragraph of this Article.
4. This provision requires, first, that any restrictions of the freedom of expression should be 'prescribed by law'. However, in the particular case of restrictions on the freedom of expression taking the form of criminal sanctions, Article 7 must be taken into account in addition to the more general requirement of lawfulness laid down in Article 10(2). As a specific provision applicable to the legal basis of any criminal sanctions, this Article in fact sets out much more elaborate criteria in particular as regards a possible retrospective effect of the law. Paragraph (1) of the Article reads as follows:
No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
In the present case, the parties are first of all in disagreement as to whether the criminal offence of blasphemous libel was defined with sufficient certainty in the common law principles which were applied by the courts. The existence of the offence, ie the fact that it has not fallen in desuetudo, is apparently no longer challenged by the applicants themselves. But they contend that essential elements of the offence, in particular the principle of strict liabililty (ie the necessity to prove only the intent to publish but not the intent to blaspheme), had not been laid down in pre-existing rules of law, but were developed by the courts only in the course of the proceedings in their own case. In this connection it is alleged that even the majority of the House of Lords itself recognised the lawmaking function of its decision when it took up this particular issue. The Government, on the other hand, denies that the courts, including the House of Lords, created new law in this case when they applied a standard of strict liability. They merely clarified the existing law and in doing so based themselves on established case law without departing from the views expressed in recent leading textbooks.
6. The Commission first observes that not only written statutes, but also rules of common or other customary law may provide a sufficient legal basis both for restrictions of fundamental rights subject to exception clauses such as the one contained in Article 10 of the Convention, and for the criminal convictions envisaged in Article 7 of the Convention. The problem in the present case therefore does not reside in the fact that the offence of blasphemous libel was not a statutory, but a common law offence.
7. The crucial point is rather one of the certainty of the law, and functions of the courts in clarifying or developing vague legal provisions or concepts. This problem was also considered in the SUNDAY TIMES case both by the Commission and the Court. In paragraph 49 of its judgment, the Court said the following [reproduced above]:....
8. These considerations are of a general nature, but the Commission has also dealt with the more particular question of extensive interpretation of criminal law, and its relevance under Article 7 (1) of the Convention. One case was in fact declared admissible because the Commission considered that the extensive interpretation of a certain statutory provision, applied for the first time by the courts after the commission of the acts of which the applicant was accused, could raise an issue under this provision. In another case - brought against the Federal Republic of Germany the Commission rejected a similar complaint on the ground that the application of a specific article of the Penal Code to certain facts had not gone beyond the limits of a reasonable interpretation of the provision in question. It stated that Article 7 (1) of the Convention forbids the retrospective application of the criminal law to the detriment of the accused and stipulates in a general way the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege). What is, among other things, prohibited is the application of the penal law in malam partem in relation to facts which the text of the law cannot reasonably extend to....
9. The Commission considers that the same principles also apply to the interpretation and application of the common law. While this branch of the law presents certain particularities for the very reason that it is by definition law developed by the courts, it is nevertheless subject to the rule that the law-making function of the courts must remain within reasonable limits. In particular in the area of the criminal law it is excluded, by virtue, of Article 7 (1) of the Convention, that any acts not previously punishable should be held by the courts to entail criminal liability, or that existing offences should be extended to cover facts which previously clearly did not constitute a criminal offence. This implies that constituent elements of an offence such as, e.g. the particular form of culpability required for its completion may not be essentially changed, at least not to the detriment of the accused, by the case law of the courts. On the other and it is not objectionable that the existing elements of the offence are clarified and adapted to new circumstances which can reasonably brought under the original concept of the offence.
10. The Commission notes that the Law Commission has criticised the state of the law of blasphemous libel in particular with regard to lacking clarity, but it nevertheless considers that the courts in the present case in fact did not go beyond the limits of a reasonable interpretation of the existing law. The House of Lords in particular was aware of the limits of its law-making functions in the area of the criminal law which had been circumscribed in the practice statement of, 1966 and put into operation in the case of KNULLER v DPP. The courts of all degrees confirmed the continued existence of the offence of blasphemous libel. There was only one point which was not clear, namely the particular requirements as to the mens rea of a person who commits this offence. This question was answered in the same way by each of the courts. Despite the admission by the Court of Appeal and the majority of the House of Lords that a point of principle was involved in the determination of this question which required clarification, it is equally clear that the application of a test of strict liability and the exclusion of evidence as to the publisher's and editor's intention to blaspheme did not amount to the creation of new law in the sense that earlier case law clearly denying such strict liability and admitting evidence as to the blasphemous intentions was overruled. By stating that the mens rea in this offence did only relate to the intention to publish, the courts therefore did not overstep the limits of what can still be regarded as an acceptable clarification of the law. The Commission further considers that the law was also accessible to the applicants and that its interpretation in this way was reasonably foreseeable for them with the assistance of appropriate legal advice. In conclusion therefore the Commission finds that there is no appearance of a violation of Article 7 (1) of the Convention in this case, and the applicants' complaint in this respect must accordingly be rejected as being manifestly ill-founded....From that it follows that the requirement under Article 10(2) of the Convention that ,any restriction on the freedom of expression must be 'prescribed by law' has also been complied with.
11. As regards the applicants' further allegation that the restriction of their freedom of expression did not pursue a legitimate purpose covered by Article 10 (2) of the Convention, the Commission notes that the Government has invoked three grounds of restriction included in this provision, namely prevention of disorder, protection of morals, and protection of the rights of others.
All these grounds may be pertinent, but the Commission nevertheless finds it appropriate to observe that in this case the public authorities themselves did not consider it necessary to institute criminal proceedings against the applicants either for blasphemous libel or,obscenity. The case was therefore brought only on the basis of a private prosecution, and although this procedure required the consent of a public authority, namely leave by a single judge, it cannot be said that the public interest (prevention of disorder and protection of morals) was so preponderant that it provided the real basis for the interference with the applicants' right to freedom of expression. In the circumstances, the justifying ground for the restriction must therefore primarily be sought in the protection of the rights of the private prosecutor. The Commission considers that the offence of blasphemous libel as it is construed under the applicable common law in fact has the main purpose to protect the right of citizens not to be offended in their religious feelings by publications. This was the thrust of the arguments put before the jury by the trial judge, arguments which were subsequently confirmed by the higher courts in this case. The Commission therefore concludes that the restriction was indeed covered by a legitimate purpose recognised in the Convention, namely the protection of the rights of others.
12. It remains to be seen whether the restriction imposed on the applicants for this purpose can also be considered as necessary within a democratic society. In this respect, the Commission first observes that the existence of an offence of blasphemy does not as such raise any doubts as to its necessity: If it is accepted that the religious feelings of the citizen may deserve protection against indecent attacks on the matters held sacred by him, then it can also be considered as necessary in a democratic society to stipulate that such lattacks, if they attain a certain level of severity, shall constitute a criminal offence triable at the request of the offended person. It is in principle left to the legislation of the State concerned how it wishes to define the offence, provided that the principle of proportionality, which is inherent in the exception clause of Article 10 (2), is being respected. The Commission considers that the offence of blasphemous libel as laid down in the common law of England in fact satisfies these criteria. In particular it does not seem disproportionate to the aim pursued that the offence is one of strict liability incurred irrespective of the intention to blaspheme and irrespective of the intended audience and of the possible avoidability of the publication by a certain member of the public. The issue of the applicants' journal containing the incriminated poem was on sale to the general public, it happened to get known in some way or other to the private prosecutor who was so deeply offended that she decided to take proceedings against the publication of this poem, and the outcome of these proceedings showed that not only the private prosecutor herself, but also the judicial authorities of all degrees were convinced of its blasphemous nature. The Commission therefore considers that the application of the blasphemy law could be considered as necessary in the circumstances of this case. The applicants' complaint that it was not necessary and therefore contrary to Article 10 (2) of the Convention is therefore again manifestly ill founded within the meaning of Article 27 (2) of the Convention.