Court/Judicial body:Supreme Administrative Court of the Czech Republic
Date:May 15, 2008 CRC
Provisions: Article 17: Access to appropriate information
Other international provisions:International Covenant on Civil and Political Rights, Article 23Universal Declaration of Human Rights, Article 16European Convention on Human Rights, Articles 10, 12Charter of Fundamental Rights of the European Union, Article 24
Domestic provisions: Act No. 231/2001 Coll., on Radio and TV Broadcasting: Section 60(3)(d) Act No. 2/1993 Coll., Charter of Fundamental Rights and Freedoms (Art. 32(1): Statutory protection of the parenthood and family)
Background:A television network broadcast a “reality” show with scenes involving violence, alcohol, cigarettes and sexual content before 10 p.m. Czech law prohibits programmes of this nature from being shown between 6 a.m. and 10 p.m., and the Czech Council for Radio and Television Broadcasting issued a fine to the offending network. The network then appealed the fine.
Issue and resolution: Media. The Court affirmed the fine, noting that the programme aired could have endangered the moral development of children.
Court reasoning:Television programming with scenes involving violence, alcohol, cigarettes and sexual content threatens to endanger the physical, mental or moral development of children, and may justifiably be prohibited from airing during the times when children are most likely to be awake. Here, there is no need to present proof that children were negatively affected by this particular programme; it is enough to know that the programme could have endangered their development. Moreover, the Government is obligated to take steps to protect children from harmful information under the national Charter of Fundamental Rights and Freedoms and various international and regional conventions, including the Convention on the Rights of the Child. While this may at times present a conflict of interest with children’s right to freedom of expression, this right is in this case outweighed by children’s right to special protection.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN: The protection of children and young people is guaranteed in both constitutional provisions and various international legal instruments to which the Czech Republic is a party. Pursuant to Article 32, paragraph 1, second sentence, of the Charter of Fundamental Rights and Freedoms (the “Charter”), the special protection of children and adolescents is guaranteed. It is also possible to refer to Article 16 of the Declaration of Human Rights, Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (No. 209/1992 Coll.), and Article 23 of the International Covenant on Civil and Political Rights (No. 120/1976 Coll.). Article 17 of the Convention on the Rights of the Child (č.104/1991 Coll.) recognizes the important role of the media in ensuring the child’s right of access to information and material from a diversity of national and international sources, especially those aimed at the promotion of social, spiritual and moral welfare as well as physical and mental health. According to the same article, the States Parties to the Convention are encouraged to develop appropriate guidelines for the protection of the child from information and material injurious to his or her welfare. Article 24, paragraph 1 of the Charter of Fundamental Rights of the European Union, proclaimed on July 12th 2000 in Nice (OJ. C 364), states that children have the right to the protection and care necessary for their well-being. Within the European Union, the right of Member States to take measures necessary to protect minors follows from other instruments, such as the Directive of the European Parliament and Council Directive 89/552/EEC on the coordination of regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), in which the preamble explicitly states as a motivation the introduction of rules to protect the physical, intellectual and moral development of minors, then in Article 22 provides that Member States shall take appropriate measures to ensure that broadcasts do not show programs which might seriously impair the physical, mental or moral development of minors, in particular programs that involve pornography or gratuitous violence. This measure is also extended to other programs which may impair the physical, mental or moral development of minors, except where the time of broadcast or technical measures ensure that children will not be able to see or hear these programs. The European Convention on Transfrontier Television (No. 57/2004 Coll. Ms), which the Czech Republic ratified and entered into force on 1 March 2004, Article 7 paragraph 1 generally requires that program services are not obscene (orig. French “ne doivent contraires pas être aux bonnes moeurs “), and in particular (paragraph 2) that all of the programs that could harm the physical, mental or moral development of children and adolescents may not be broadcast at a time when it is probable that these persons could see them. The explanatory memorandum to the European Convention (available at http://convetions.coe.int/) illuminates that this provision was mainly inspired by the European Convention on Human Rights and Fundamental Freedoms (No. 209/1992 Coll.) and should be interpreted in light of the case law of the European Court of Human Rights… Freedom of speech is enshrined in Czech Law in Article 17 of the Charter, and it also applies to commercial expressions. Restrictions on freedom of expression are foreseen in Article 17, paragraph 4 of the Charter (restrictions must be done by law; the measures taken must be necessary in a democratic society for the protection of rights and freedoms, morals or the protection of others; the restrictions must pursue a legitimate aim to achieve this objective). Similarly, the European Convention on the Protection of Human Rights and Fundamental Freedoms in Article 10, paragraph 2 allows freedom of expression to be restricted, among other reasons, in the interest of protection of health or morals or for the protection of the reputation or rights of others. As regards the rights of children to special protection and freedom of expression, the meaning, content and degree of legal protection may present conflicts of interest. None of them enjoys priority. When a conflict of guaranteed rights and freedoms exists, it is for the court to consider the importance of these interests using the principle of proportionality.
Notes: For more information on children’s right to freedom of expression and access to information, including a selection of case law, please see CRIN’s campaign ‘Protect children, end censorship’.
CRIN comments:CRIN believes this decision is consistent with the CRC. While Article 17 of the Convention grants children a general right to information, it also instructs States Parties to “develop appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.” As noted by both the Court and the Convention, however, children’s right to freedom of expression must be considered when setting these guidelines. Children have the right to “seek, receive and impart information and ideas of all kinds” under Article 13 of the Convention, and this right must not be restricted without good reason or in a discriminatory or arbitrary way.
Citation: 6 As 70/2007
Link to full judgement: http://www.nssoud.cz/files/SOUDNI_VYKON/2007/0070_6As__0700104A_prevedeno.pdf