In its judgement of the case Sekmadienitis Ltd v. Lithuania (n ° 69317/14), of 31 January 2018, The European Court of Human Rights (ECHR), unanimously decided, that Lithuania had violated article 10 (right to freedom of expression) of the European Convention of Human rights. It provoked negative reaction in Italy, specifically from the LEGA, which intentionally or not or by ignorance made confusion between the ECHR and the Council of Europe and the EU. Such ignorance is more pericolous for democracy than any advertising or fake news.

THE FACTS:

The applicant company, Sekmadienis Ltd., is based in Vilnius. In September and October 2012 it ran an advertisement campaign with photos of a male and female model with halos, the man in jeans and with tattoos, and the female with a white dress and a string of beads. The advertisements contained the captions “Jesus, what trousers!”, “Dear Mary, what a dress!”, and “Jesus [and] Mary, what are you wearing!”

Several individuals complained about the advertisements to the State Consumer Rights Protection Authority (SCRPA). The latter first sought the opinion of the Lithuanian Advertising Agency (LAA), a self-regulatory body composed of advertising specialists. The LAA stated that “religious people always react very sensitively to any use of religious symbols or religious personalities in advertising” and that the advertisements breached the Code of Advertising Ethics. The SCRPA forwarded that opinion and the complaints to the State Inspectorate of Non-Food Products. The Inspectorate held that “the advertisements use religious symbols in a disrespectful and inappropriate manner” and might be in violation of the national Law on Advertising. Subsequently the SCRPA asked the Lithuanian Bishops Conference, the territorial authority of the Roman Catholic Church in Lithuania, for its view. The Bishops Conference stated that “the degrading and distortion of religious symbols by purposely changing their meaning is contrary to public morals, especially when it is done in pursuit of commercial gain”. It later informed the SCRPA that it had received complaints about the advertisements from about a hundred individuals.

In March 2013 the SCRPA found that the advertisements were contrary to public morals and thus in violation of the Law on Advertising. The applicant company was given a fine of 2,000 Lithuanian litai (approximately 580 euros). The SCRPA held that “the inappropriate depiction of Christ and Mary in the advertisements in question encourages a frivolous attitude towards the ethical values of the Christian faith, [and] promotes a lifestyle which is incompatible with the principles of a religious person”. It concluded that “respect for religion is undoubtedly a moral value. Accordingly, disrespecting religion breaches public morals”.

The ECHR sentence 

Consequently, Sekmadienis Ltd, on the basis of Article 10§1 of the Convention, requested the opinion of the ECHR. La Cotrte composed of 7 judges Ganna Yudkivska (Ukraine), President, Vincent A. De Gaetano (Malta), Faris Vehabović (Bosnia and Herzegovina), Egidijus Kūris (Lithuania), Carlo Ranzoni (Liechtenstein), Georges Ravarani (Luxembourg), Péter Paczolay (Hungary), and Marialena Tsirli, Section Registrar, found that this advertising campaign could not be condemned.
Basically ECHR’s arguments are as follows:
“The advertisements did not appear to be gratuitously offensive or profane, nor incited hatred on religious grounds, the Court underlined the duty of the domestic courts and other authorities to provide relevant and sufficient reasons why such expression was nonetheless contrary to public morals.”
Following its constant jurisprudence since the Handyside judgment (1973), the Court has specified that freedom of expression extends to ideas that offend, pop or disturb. In consequence it condemned Lithuania.

COMMENTS:

1 – On the case – Many advertising national association have produce ethical codes of conduct for their members. These codes are voluntary agreements between operators that are not laws, but self-regulation (“soft-law”). International law is always superior to national ones, and national laws to such non-binding voluntary agreements.

One can hate or not advertising but, even if with only a commercial scope, advertising remains a form of communication and of expression and, therefore, and as such must benefit from the same rights than any other forms of expression. National advertising Ethical codes contents may vary from one country to another. Here is the British one (from the CAP, Committees of Advertising Practices about use of religious symbols:
« 4.1  Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age. Compliance will be judged on the context, medium, audience, product and prevailing standards.
« Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material.
« The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code.”
Numerous scientific studies have been done on the impact of the use of religious themes and symbols in advertising. Their results are short to dimostrate that this type of advertising has a great effect on consumption. However, not only are they current in the world and in Europe, but some religions also use religious signs and symbols to advertise and attract the public.

2- On Italian reactions – Obviously, in Italy, the negative comments of this sentence were not lacking. Even totally wrong comments from Lega Nord. Roberto Calderoli (Senate vice president) and Matteo Salvini (head of the Lega) have accused in similar terms – and totally wrong ones obviously – the European Union to be responsible of this sentence:

“From this Europe of technocrats, light years away from the common feeling of the people comes yet another rude, yet another offense to our history. This sentence is an insult to respect for our Christian roots and our identity and is yet another confirmation that this Europe that mocks and debases its identity and its history is not to be changed, but it is to be erased, because only in this way can it be rebuilt ».

Comments totally wrong, because Calderoni and Salvani ignore (or make people believe they ignore) that the ECHR is not an EU institution. The ECHR is an institution of the Council of Europe, which has nothing to do with the EU’s institutions (except that all EU members are also members of the Council of Europe). In this specific case three out of the seven judges who have pronounced the sentence had the nationality of non EU countries!

References:

– Justina Gineikienė, Ignas Zimaitis, Sigitas Urbonavičius « Controversial use of Religious Symbols in Advertising” in: Developments in marketing Science: Proceedings of the Academy of Marketing Science, Oct. 2014

https://link.springer.com/chapter/10.1007/978-3-319-10951-0_26

– Abou Bakar, Dr Richard Lee, Dr Cam Rungie « The Use of Religious Symbols on Packaging to Influence Product Preference and Rating »

http://search.ror.unisa.edu.au/record/UNISA_ALMA11143152550001831/media/digital/open/9915909492401831/12143152540001831/13143236160001831/pdf

– The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing

https://www.asa.org.uk/codes-and-rulings.html

Reactions in Italy:

– https://www.avvenire.it/mondo/pagine/pubblicita-strasburgo-lecito-usare-gesu-e-maria-su-poster-e-web

– http://www.adnkronos.com/fatti/esteri/2018/01/30/corte-strasburgo-lecito-usare-gesu-negli-spot_rZI5PzQ5avN4oOzhvl5f7K.html

– http://www.corriere.it/cronache/18_gennaio_30/corte-strasburgo-lecito-l-uso-gesu-maria-pubblicita-002803f6-05b2-11e8-b2bd-b642cbae90d8.shtml?refresh_ce-cp