A. The restriction on freedom of speech is permissible under Article 19(3), ICCPR

Prohibition of provocation under the SMS Charter (Art. 2(b)) is lawful and does not violate right to freedom of expression.

A. The restriction on freedom of speech is permissible under Article 19(3), ICCPR

a. The restriction is prescribed by law

A restriction is prescribed by law if it has a basis in domestic law[1], is accessible, foreseeable and precise[2]. A law is foreseeable if it is precise enough to enable citizens to regulate their conduct[3] and predict the consequences of non-compliance[4]. According to Delphi, though, it is admissible formany laws to be formulated vaguely since certainty often brings excessive rigidity and doesn’t predict any changing circumstances[5]. Thus, the interpretation and application of such enactments depend on practice[6].

In this case, the restriction possesses a basis in domestic law as it is imposed by the SMS Charter, which is clearly accessible to Lydinans. The Respondent also mentions that since “believe in One God” is enshrined in the Lydinan Constitution[7] citizens are enabled to define with respect to what kind of “religious feelings and values of Malani culture” they should conduct.

Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice[8]. DigiTube.com is the video-sharing website which after the increased use of social media in Lydina[9] had contributed to the religious violence as well. In this context the Respondent considers that the Applicants were in a position to assess the risks related to its activities and, to a reasonable degree, to foresee the consequences which these could entail.

Therefore, it is submitted that the interference was “prescribed by law” within the meaning of Art. 19(3), ICCPR.

b. The restriction pursues the legitimate aim

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

c. The restriction is necessary in a democratic society

In order to be recognized “necessary in a democratic society” the restriction must correspond to a “pressing social need” [i] and be proportionate to the legitimate aim pursued[10] [iii]. In addition, the reasons that are to justify the restriction should be relevant and sufficient[11] [ii].

i. The restriction is invoked by the pressing social need

Due to the ECtHR case-law it may be necessary in some democratic societies to prevent all forms of expression which spread, incite, promote or justify religious intolerance [12]. Following the mentioned position the Court statedthat restrictions are possible with regard to improper attacks on objects of religious veneration[13].

The Respondent stresses the role of Parduism in the everyday life of the people of Lydina[14]. In pursuance with the case problem, the proportion of Parduists among the Lydinan population is 75%[15], which evidences that Parduism is the religion of the overwhelming majority of Lydinans. Thus, Kutik’s proclamation Zofftor as false invoked a pressing social need to protect firstly, rights of Parduists community and secondly, public order against the religious violence.

ii. The reasons to justify the restriction are relevant and sufficient

Firstly, in accordance with the Inter-American Court when applying the penalty it is significant to establish “the malice with which the damaging party acted”[16]. In the Usón decision, for example, the assertions for which Mr. Usón was convicted had been formulated in a conditional manner and therefore lacked any specific intention to insult, offend or disparage[17].

On the contrary, Kutik’s speech about 3:130 was formulated in the affirmative manner[18]. It is contended that the Applicant’s statement of “plague which never actually occurred”[19] was aimed not at seeking historical truth, but primarily at attacking the essence of the Parduistic scripture. Due to the fact that the described plague evidenced the power of “a holy man”[20] in which the Lydina’s majority believed it is the claim of the Respondent that the Applicants acted with the intention to offend the religious feelings of Parduists.

Secondly, it should be emphasized that the risk of harm posed by content on the Internet is certainly higher than that posed by the press[21]. Moreover, as it was previously stated by the Respondent[22] it is within the nature of video to reach a big audience of viewers. Considering high number of Lydinans with internet access Kutik’s video went viral all over Lydina and, thus, affected religious feelings of the utmost number of Parduists.

Lastly, the Respondent raises that decisions taken pursuant to Lydina’s power of appreciation should be viewed in the light of the case as a whole[23]. Since religion had been a divisive issue in the Lydinan society religious violence was an urgent problem for state to resolve. It was also because of the social media contribution that the acts of violence took place. Acknowledging that, the Applicant chose DigiTube.Com as the most immediate and powerful tool to publish the speech, which offended religious feelings of Parduists and, consequently, triggered violent protests.

In conclusion, the Respondent submits that basing on Applicants’ intention to offend, form of the speech and circumstances of the case the protection of rights of Parduists community and public order of the State of Lydina are relevant and sufficient reasons to justify the restriction.

iii. The restriction is proportionate to the legitimate aim pursued

To assess the proportionality it is important to consider the restriction’s bounds[24]. The Article 2(b) of the SMS Charter related only to the social media as the one which contributed to the religion-based violence[25] greatly. Consequently, Kutik was free to publish his speech in the print media, announce it on the TV-programme or share during public meetings.

It is also the nature and severity of the penalties imposed which help to define the proportionality. As it is in the nature of video to be copied, shared on the Internet and viewed by different users[26] it would be insufficient for Lydinan authorities to simply prohibit the Kutik’s recorded speech. Thus, pecuniary penalties imposed on the Applicants did not exceed the gravity of the offence which was committed, and were not so severe as to discourage the press from participating in discussions on matters of public interest[27].

B. The State of Lydina exercises the margin of appreciation

In the Handyside judgment it was established that certain discretion "is given both to the domestic legislator... and to the bodies, judicial amongst others"[28] to interpret and apply the laws involved. The Respondent stresses that similar margin of appreciation attaches to the evaluation of the danger the Applicants’ exercise of the freedom of expression entailed for the interests listed in Article 19 (3) of the Covenant[29].

Firstly, it is for the national authorities initially to assess the reality of the pressing social need of implied restriction[30].

The Court stated in that judgment to make the initial assessment of implied in each case by the notion of necessity and that, accordingly, Article 10 (2) (art. 10-2) leaves In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation.

Moreover, a certain 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 ( see, mutatis mutandis, Müller and Others v. Switzerland, judgment of 24 May 1988, Series A no. 133, p. 22, § 35, and, as the most recent authority, Murphy v. Ireland, no. 44179/98, §§ 65‑69, ECHR 2003-IX).

The end This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

Start Wingrove (cited above, pp. 1957-58, § 58) is even more specific about the State's margin of appreciation with regard to religious sensitivities:

“... 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 (see, mutatis mutandis, the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 22, para. 35). However, the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material.

[1] Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010)

[2] Silver and Others v United Kingdom (1983) Series A no 61; The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999); Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002)

[3] The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999)

[4] Kruslin v France (1990) Series A no 176 A; Huvig v France (1990) Series A no 176 B

[5] CASE OF DELFI AS v. ESTONIA, para. 71

[6] Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007‑IV

[7] Competition Case, para. 6

[8] CASE OF DELFI AS v. ESTONIA, para. 72

[9] Competition Case, para. 8, 15

[10] CASE OF KLEIN v. SLOVAKIA, para. 47

[11] Ibid

[12] Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999‑IV CASE OF GÜNDÜZ v. TURKEY (Application no. 35071/97), para. 40

[13] CASE OF İ.A. v. TURKEY, para. 24 CASE OF KLEIN v. SLOVAKIA, para. 47 OTTO-PREMINGER-INSTITUT v. AUSTRIA, para. 49

[14] Competition Case, para. 6

[15] Ibid, para. 2

[16] 171 1 I/A Court H. R., Case of Tristán Donoso Vs. Panama. Preliminary Objection, Merits, Reparations and Costs. Judgment of January 27, 2009 Series C No. 193. para. 125

[17] I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207. para. 86

[18] Competitiom Case, para.9

[19] Ibid, para.9

[20] Ibid, para.9

[21] Editorial Board of Pravoye Delo and Shtekel, para 63

[22] Roksolana’s argument of the extent of the speech

[23] Feldek v. Slovakia, para.73

[24] CASE OF MURPHY v. IRELAND, para.74

[25] Competition Case, para.15

[26] CASE OF MURPHY v. IRELAND, para.74

[27] CASE OF KLEIN v. SLOVAKIA, para.36

[28] Handyside, loc. cit., p. 22, para.48

[29] Klass and others judgment, p. 23, para.49

[30] CASE OF KLEIN v. SLOVAKIA, para.53

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