31 GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT DISSENTING OPINION OF JUDGE PETTITI retransmission of programmes lawfully broadcast from abroad, since the Pizzo Groppera station was in Italy and under Italian jurisdiction. The situation was not like that of a satellite used in order to avoid conventional over-the-air broadcasting, with reception being by cable or individual aerial (as in the case of the TDF1 - Chaîne Sept - Canal Plus dispute). There was therefore no danger that a coded or uncoded channel might use new radio frequencies. The third sentence of Article 10 § 1 (art. 10-1) could not therefore justify the interference complained of since the issue was not one of making Belton s.r.l. and Groppera Radio AG subject to a Swiss licensing system. Only paragraph 2 (art. 10-2) could have been open to discussion in respect of the content of the communication transmitted by cable, but the Swiss Government themselves were unable to rely on any justification for interference with the content. In the instant case, frequencies were neither overloaded nor saturated such as to prevent the operation of other local radio stations; nor was there any lack of cable networks. The community-antenna licence awarded to the Maur co-operative in accordance with the 1983 Ordinance had not been withdrawn; but the order of 21 March 1984 instructing the co-operative to cease broadcasting Groppera Radio AG's programmes on its cable network on pain of a criminal penalty amounted to a ban. The Government were therefore wrong to maintain that, in the absence of any jamming, it was not possible to talk of censorship; surely to prevent a broadcast is to censor it? In fact, the intention was to protect local radio stations whose programmes were less popular with the public. The local authorities' policy was partly prompted by the problems of competition. The majority of the Court refers in fine to evasion of the law; but how can the offence which such evasion would constitute be relied on when no such charge had been brought and no proceedings of this kind had been brought in either Italy or Switzerland! Admittedly the scope of the judgment is circumscribed by the facts of the case and by the narrow grounds on which the case has been decided, but inasmuch as Article 10 (art. 10) was at the heart of a problem of retransmission across frontiers, I consider that it was necessary to state that the third sentence of paragraph 1 (art. 10-1) was not applicable and that the interference was not justified under Article 10 § 2 (art. 10-2). Freedom of expression, which is a fundamental right including the right to receive a communication, is even more necessary in the field of telecommunications. The countries of Eastern Europe have been encouraged on the path to democracy thanks to broadcasts across frontiers and they wish to comply with the European Convention on Transfrontier Television. American and European case-law and legal literature on the subject agree in maintaining that this freedom extends to the sphere of telecommunications.