In 2008 Sandown Free Presbyterian Church placed an advert in a newspaper in Northern Ireland which referred to homosexuality as ‘an abomination’ and invited people to join in a peaceful public prayer witness against acts of sodomy. After receiving seven complaints that the advertisement was blatantly homophobic, the Advertising Standards Authority (ASA) suggested that the advert had caused ‘serious offence’ to some readers and ordered that it be removed and not published in the same format again. The Church challenged the decision of the ASA arguing the ban to be an infringement of their rights to freedom of expression guaranteed under Article 10 of the European Convention on Human Rights and it was last month that Justice Treacy agreed with the applicants, that the outright ban on the advertisement infringed their right to freedom of expression.
Mr Justice Treacy agreed with the applicants that the advertisement was never intended as a personal attack against an individual and/or community and the contents were framed in such a manner so as to discourage any violence or provocation to illegal activity. As such the advert constituted a genuine attempt to stand up for one’s religious beliefs and while many people may have been shocked or offended by the advertisement Article 10 is designed in such a manner so as to protect expressive rights which have the potential to offend, shock or disturb. Speaking on behalf of the Sandown Presbyterian community Rev David Mc Ilveen said “We want to make it clear we had nothing against the seven people who objected to the advertisement. This is a landmark now for future decisions. People can quote the Bible and that’s a freedom that we have sought.” He was joined outside the court by fellow church member and former First Minister of Northern Ireland Rev Ian Paisley.
Jeffrey Dudgeon who was the key litigant in the case of Dudgeon v UK (1976) before the European Court of Human Rights – a case which forced the Westminster parliament to decriminalise homosexual practice in Northern Ireland suggested – that it was wrong to try and ban church adverts opposing homosexuality. He suggested that while much has changed in Northern Ireland he was not surprised to see such an advert in a regional paper. “I appreciate that young gay people thought things were moving forwards and then this happens – this advert with a medieval view. They were surprised to see it, but I am not.”
The case of Sandown presents the challenge of balancing genuine freedom of expression concerns while also having regard for those who have been shocked and offended by these expressions. As was expressly recognised in the judgement of Justice Treacy even in publications that may be determined to be shocking or offensive the expressive right is still protected. The decision in the Sandown case to affirm the right to freedom of expression is not unusual especially when read in light of the 2008 judgement in Goodfellas v Irish News LTD. In this case, Sir Brian Kerr, the former Lord Chief Justice of Northern Ireland overturned a judgement which initially awarded £25,000 damages to a restaurant that had been at the receiving end of an unflattering review made in the comment section of The Irish News. This judgement was seen as a watershed moment for press freedom in Northern Ireland and ruled that any article flagged as a review is to be accepted as comment and that comment must be accepted as fair regardless of how exaggerated or prejudiced the language may be. It has taken a long time for this small jurisdiction to come to terms with freedom of expression laws and how they intersect with the media. However, in light of these two fairly recent judgements we can see that with regards to Article 10 jurisprudence, Northern Ireland is starting to establish consistency in the protection of freedom of expression. It just so happens that in applying this consistency, as will happen in most cases were article 10 is in contention, one party will always feel let down.
BY MICHEÁL MURPHY.
