GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
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55. The Court notes that the first two of the Government’s submissions
reiterate in substance the preliminary objection that has already been
dismissed. As to the third submission, the Court does not consider it
necessary to give on this occasion a precise definition of what is meant by
"information" and "ideas". "Broadcasting" is mentioned in the Convention
precisely in relation to freedom of expression. Like the Commission, the
Court considers that both broadcasting of programmes over the air and cable
retransmission of such programmes are covered by the right enshrined in the
first two sentences of Article 10 § 1 (art. 10-1), without there being any
need to make distinctions according to the content of the programmes. The
disputed administrative decisions certainly interfered with the cable
retransmission of Sound Radio’s programmes and prevented the subscribers
in the Maur area from receiving them by that means; they therefore
amounted to "interference by public authority" with the exercise of the
aforesaid freedom.
B. Whether the interference was justified
56. The Government submitted, in the alternative, that the interference
was in keeping with paragraph 1 (art. 10-1) in fine, according to which
Article 10 "shall not prevent States from requiring the licensing of
broadcasting ... enterprises"; in the further alternative, they argued that it
was justified under paragraph 2 (art. 10-2).
1. Paragraph 1, third sentence, of Article 10 (art. 10-1)
57. As to the first point, the applicants contended that Switzerland had
no jurisdiction to regulate reception on its territory of programmes legally
broadcast from abroad and retransmitted by cable. Since the Pizzo Groppera
station was in Italy, only the Italian authorities might be entitled to grant
Groppera Radio AG a licence within the meaning of the third sentence of
Article 10 § 1 (art. 10-1). Furthermore, companies which operated cable
networks each had a relatively large number of channels; the licences that
were granted to them in Switzerland were for purely technical purposes and
could not in any circumstances be used to dictate the choice of programmes.
In the Commission’s view likewise, the third sentence of Article 10 § 1
(art. 10-1) could not justify the interference complained of. The condition to
which the award and holding of the "community-antenna licence" were
made subject by the administrative decisions of 21 March and 31 July 1984
was not designed to ensure compliance with a licence issued to a
broadcasting enterprise operating under the Swiss system. The legitimacy of
the restriction imposed on licensed cable companies by Article 78 § 1 (a) of
the 1983 Ordinance could accordingly be assessed only under Article 10 § 2
(art. 10-2).