Wingrove v United Kingdom (1996) 24 EHRR 1
C. Whether the interference was 'necessary in a democratic society'
52. The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society. As paragraph 2 of Article 10 expressly recognises, however, the exercise of that freedom carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, may legitimately be included a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profanatory.
53. No restriction on freedom of expression, whether in the context of religious beliefs or in any other, can be compatible with Article 10 unless it satisfies, inter alia, the test of necessity as required by the second paragraph of that Article. In examining whether restrictions to the rights and freedoms guaranteed by the Convention can be considered "necessary in a democratic society" the Court has, however, consistently held that the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the European Court to give a final ruling on the restriction's compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a "pressing social need" and whether it was "proportionate to the legitimate aim pursued"."
54. According to the applicant, there was no "pressing social need" to ban a video work on the uncertain assumption that it would breach the law of blasphemy; indeed, the overriding social need was to allow it to be distributed. Furthermore, since adequate protection was already provided by a panoply of laws concerning, inter alia, obscenity, public order and disturbances to places of religious worship, blasphemy laws, which are incompatible with the European idea of freedom of expression, were also superfluous in practice. In any event, the complete prohibition of a video work that contained no obscenity, no pornography and no element of vilification of Christ was disproportionate to the aim pursued.
55. For the Commission, the fact that Visions of Ecstasy was a short video work and not a feature film meant that its distribution would have been more limited and less likely to attract publicity. The Commission came to the same conclusion as the applicant.
56. The Government contended that the applicant's video work was clearly a provocative and indecent portrayal of an object of religious veneration, that its distribution would have been sufficiently public and widespread to cause offence and that it amounted to an attack on the religious beliefs of Christians which was insulting and offensive. In those circumstances, in refusing to grant a classification certificate for the applicant's video work, the national authorities only acted within their margin of appreciation.
57. The Court observes that the refusal to grant Visions of Ecstasy a distribution certificate was intended to protect "the rights of others", and more specifically to provide protection against seriously offensive attacks on matters regarded as sacred by Christians." The laws to which the applicant made reference and which pursue related but distinct aims are thus not relevant in this context.
As the observations filed by the intervenors show, blasphemy legislation is still in force in various European countries. It is true that the application of these laws has become increasingly rare and that several States have recently repealed them altogether. In the United Kingdom only two prosecutions concerning blasphemy have been brought in the last 70 years. Strong arguments have been advanced in favour of the abolition of blasphemy laws, for example, that such laws may discriminate against different faiths or denominations - as put forward by the applicant - or that legal mechanisms are inadequate to deal with matters of faith or individual belief.... However, the fact remains that there is as yet not sufficient common ground in the legal and social orders of the Member States of the Council of Europe to conclude that a system whereby a State can impose restrictions on the propagation of material on the basis that it is blasphemous is, in itself, unnecessary in a democratic society and thus incompatible with the Convention.
58. Whereas there is little scope under Article 10(2) of the Convention for restrictions on political speech or on debate of questions of public interest, a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. Moreover, as in the field of morals, and perhaps to an even greater degree, there is no uniform European conception of the requirements of "the protection of the rights of others" in relation to attacks on their religious convictions. What is likely to cause substantial offence to persons of a particular religious persuasion will vary significantly from time to time and from place to place, especially in an era characterised by an ever growing array of faiths and denominations. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements with regard to the rights of others as well as on the "necessity" of a "restriction" intended to protect from such material those whose deepest feelings and convictions would be seriously offended.
This does not of course exclude final European supervision. Such supervision is all the more necessary given the breadth and openendedness of the notion of blasphemy and the risks of arbitrary or excessive interferences with freedom of expression under the guise of action taken against allegedly blasphemous material. In this regard the scope of the offence of blasphemy and the safeguards inherent in the legislation are especially important. Moreover the fact that the present case involves prior restraint calls for special scrutiny by the Court.
59. The Court's task in this case is to determine whether the reasons relied on by the national authorities to justify the measures interfering with the applicant's freedom of expression are relevant and sufficient for the purposes of Article 10(2) of the Convention.
60. As regards the content of the law itself, the Court observes that the English law of blasphemy does not prohibit the expression, in any form, of views hostile to the Christian religion. Nor can it be said that opinions which are offensive to Christians necessarily fall within its ambit. As the English courts have indicated it is the manner in which views are advocated rather than the views themselves which the law seeks to control. The extent of insult to religious feelings must be significant, as is clear from the use by the courts of the adjectives "contemptuous", "reviling", "scurrilous", "ludicrous" to depict material of a sufficient degree of offensiveness.
The high degree of profanation that must be attained constitutes, in itself, a safeguard against arbitrariness. It is against this background that the asserted justification under Article 10(2) in the decisions of the national authorities must be considered.
61. Visions of Ecstasy portrays, inter alia, a female character astride the recumbent body of the crucified Christ engaged in an act of an overtly sexual nature. The national authorities, using powers that are not themselves incompatible with the Convention,' considered that the manner in which such imagery was treated placed the focus of the work "less on the erotic feelings of the character than on those of the audience, which is the primary function of pornography"." They further held that since no attempt was made in the film to explore the meaning of the imagery beyond engaging the viewer in a "voyeuristic erotic experience", the public distribution of such a video could outrage and insult the feelings of believing Christians and constitute the criminal offence of blasphemy. This view was reached by both the Board of Film Classification and the Video Appeals Committee following a careful consideration of the arguments in defence of his work presented by the applicant in the course of two sets of proceedings. Moreover, it was open to the applicant to challenge the decision of the Appeals Committee in proceedings for judicial review.
Bearing in mind the safeguard of the high threshold of profanation embodied in the definition of the offence of blasphemy under English law as well as the State's margin of appreciation in this area, the reasons given to justify the measures taken can be considered as both relevant and sufficient for the purposes of Article 10(2). Furthermore, having viewed the film for itself, the Court is satisfied that the decisions by the national authorities cannot be said to be arbitrary or excessive.
62. It was submitted by both the applicant and the Delegate of the Commission that a short experimental video work would reach a smaller audience than a major feature film, such as the one at issue in the OTTO-PREMINGER INSTITUTE case. The risk that any Christian would unwittingly view the video was therefore substantially reduced and so was the need to impose restrictions on its distribution. Furthermore, this risk could have been reduced further by restricting the distribution of the film to licensed sex shops. Since the film would have been dispensed in video boxes which would have included a description of its content, only consenting adults would ever have been confronted with it.
63. The Court notes, however, that it is in the nature of video works that once they become available on the market they can, in practice, be copied, lent, rented, sold and viewed in different homes, thereby easily escaping any form of control by the authorities.
In these circumstances, it was not unreasonable for the national authorities, bearing in mind the development of the video industry in the United Kingdom, to consider that the film could have reached a public to whom it would have caused offence. The use of a box including a warning as to the film's content" would have had only limited efficiency given the varied forms of transmission of video works mentioned above. In any event, here too the national authorities are in a better position than the European Court to make an assessment as to the likely impact of such a video, taking into account the difficulties in protecting the public.
64. It is true that the measures taken by the authorities amounted to a complete ban on the film's distribution. However, this was an understandable consequence of the opinion of the competent authorities that the distribution of the video would infringe the criminal law and of the refusal of the applicant to amend or cut out the objectionable sequences. Having reached the conclusion that they did as to the blasphemous content of the film it cannot be said that the authorities overstepped their margin of appreciation.