The applicant sought judicial review of an adjudication by the Advertising Standards Agency (ASA) that an advertisement placed in the Belfast Newsletter headlined ‘The Word of God against sodomy’ would be likely to cause, and had caused, serious offence and should not appear again in its current form. The advertisement had been placed to demonstrate the applicant's opposition to the Belfast Gay Pride March and to invite readers to a gospel witness. The review was sought on the grounds that:
i. The ASA's decision was procedurally unfair, as the applicant was not shown the Independent Reviewer's recommendation nor permitted to make representations directly to the ASA Council;
ii. The decision constituted a disproportionate interference with the applicant's rights under Articles 9 and 10 of the ECHR to freedom of religion and expression; and
iii. The decision breached the applicant's legitimate expectation that the ASA would not adjudicate in cases such as this, given the provision in its Code that it ‘does not arbitrate between conflicting ideologies’.
The court rejected the complaint of procedural unfairness on the grounds that the applicant had been given full information about the Independent Reviewer's recommendation and been given an opportunity to make comments thereupon. All of the applicant's comments and correspondence had been before the ASA Council prior to the decision being made. Further, the court held that the ASA had not arbitrated between conflicting ideologies.
The court considered complaint ii in the context of Article 10 rather than Article 9, it being accepted by the parties that any issues arising under the qualifications of the rights under Articles 9(2) and 10(2) were identical. The court held that there had clearly been an interference with the applicant's right to freedom of expression. The court further held that that interference was for a legitimate aim, namely the application of the Committee of Advertising Practice Code which sought to control the publication of material including that which would cause widespread or serious offence to those of a particular sexual orientation and thereby interfere with their right to respect for their dignity and private life. The issue remained whether the interference was proportionate. The court held that Article 10 protects expressive rights that offend, shock or disturb and that the necessity for any interference with Article 10 rights must be convincingly established. In this case, the advertisement did not condone and was unlikely to provoke violence, contained no exhortation to other improper or illegal activity and constituted a genuine attempt to stand up for the applicant's religious beliefs. The court held that the decision of the ASA constituted a disproportionate interference with the Article 10 rights of the applicant. The decision was quashed. [RA]
