CCPR/C/15/D/61/1979

ANN~X XIV Views ot the Human Hlghts c~mmlttee under artlcle 5 (4) ot the Optl0nal Protocol to the Internatlonal COVenant on Civil and Political Rights c::mcernlng Communication No. R.l4/6l Submitted by: LeO~. Hertzberg, Ult Mansson, Astrld Nlkula and Marko and Tuovi Putkonen, represented by SETA (Organlzatlon tor sexual Equality) Alleged victims: The persons mentloned above State party concerned:,nnland Date of communication: 7 August l!:U!::I (aate ot lnltlasl .Letter) Date of decision on admissibility: ~5 JUly .L!::I~O The Human Rights Committee establlshed under article ~~ of the Internatlonai OOUenant on Civil and Political Hlghts, Meeting on 2 April t~~~, Having concluded its consideration of communication No. R.14/61, submitted to the COmmittee by SETA (Organization for sexual.Equality), Finland, under the optional Protocol to the International Covenant on Civil and Political Rights, Having taken into account all written information made avail"ble to it by the authors of the communicatlon and by the State party concerned, adopts the following: VIEWS UNDER ARTICLE 5 (4) OF THE OPTIONAL PROTOCOL 1. The authors ot this communication (initial letter dated 7 August l!::l19) are five individuals, who are represented by a Finnish organization, SETA (Organization tor Sexual Equality).

2. l The tacts ot the tive cases are essentially undisputed. The parties only disagree as to their evaluation. According to the contentions of the authors ot the communication, Finnish authorities, including organs ot the State-controlled Flnnish'Broadcasting company (FBC), have interfered with their right of treedom of expression and intormation, as laid down in article 19 of the Covenant, by imposing sanctions against participants in, or censuring, radio and TV programmes dealing With sanctions against participants in, or censuring, radio and TV programmes dealing With homosexuality. At the heart of the dispute is paragraph 9 of Chapter 20 of the Flnnlsh Penal COde which sets torth the tollowing: -161- "If someone publicly engages in an act violating sexual morality, thereby giving offense, he shall be sentenced for publicly violating sexual morality to imprisonment for at most six months or to a fine. 2.3 Astrid Nikula prepared a radio programme conceived as part of'a young listeners series in December 1978. This programme included a review of the book, "Pojkar skall inte grata" ("Boys must not cry") and an interview with a homosexual about the identity of a young homosexual and about life as a homosexual in Finland. When it was ready for broadcasting, it was censored by the responsible director of FEC against the opposition of the editorial team of the series. The author claims that no remedy against the censorship decision was available to her. 2.2 In September 1976, Leo Rafael Hertzberg, a lawyer, was interviewed for the purposes of a radio programme entitled "Arbetsmarknadens uteslutna" ("The Outcasts Cif the Labour Market"). In the intervi~w, he asserted on the strength of his knowledge as an expert that there exists job discrimination in Finland on the ground of sexual orientation, in particul~r, to the detriment of homosexuals. Because of tbis programme criminal charges were brought against the editor (not Mr. Hertzberg) before the Helsinki Municipal court and, subsequently, before the Helsinki Court of Appeals. Although the editor was acquitted, Mr. Hertzberg claims that through those penal proceedings his right to seek, receive and impart information was curtailed. In his view, the Court of Appeals (decision No. 2825 of 27 February 1979) has exceeded the limits of reasonable interpretation by construing paragraph 9 (2) of chapter 20 of the Penal Code as implying that the mere "praising of homosexual relationships" constituted an offence under that prov ision. 2.4 Ulf Mansson participated in a discussion about the situation of the young homosexual de~icted in Mrs. Nikula's production. The discussion was designed to form part of the broadcast. Like Mrs. Nikula, the author states that no remedy was available to him to challenge the censorship decision. "~yone who publicly encourages indecent behaviour between persons of the same sex shall be sentenced for encouragement to indecent behaviour between members of the same sex as decreed in subsection 1." 2.5 In 1978, Marko and Tuovi Putkonen, together with a third person, prepared a TV series on Clifferent marginal groups of Isociety such as Jews, gypsies and homosexuals. Their main intention was to provide factual information and thereby to remove prejudices against those groupsQ The responsible programme director, however, order that all references to homosexuals be cut from the production, indicating that its transmission 'in full WQu1d entail legal action against FBC under paragraph 9 (2) of chapter 20 of the Penal Code. 2.7 The authors state that the same matter has not been submitted for examination under another procedure of international invsti.gation or settlement. 2.6 The authors claim that their case is an illustration of the adverse effects of the wide interpretation given to that provision, which does not permit an objective description of homosexuality. According to their allegations, it is extremely difficult, if not impossible, for a journalist to start preparing a programme in which homosexuals are portrayed as anything else than sick, disturbed, criminal or wanting to change their sex. They contend that several of such programmes have been broadcast by FEC in the recent past. 3. 'By its decision of ~8 March 1980, the Human Rights Committee transmltted the communication untisr rule 91 ot the provlslonal rUles ot procedure to the state party, requesting information and obselvations relevant to the questlon ot admissibility. 4. By a note dated 9 June 19HU, the state party, while reJecting the allegation that the Government of Finland was in breach of article 19 of the Covenant, confirmed that there were no turther domestlc remedles avallable to the alleged victims in the sense of article 5 (2) (b) of the Optional Protocol. The state party argued that the authors ot the cowlunlcation appeared to give to the concept of freedom of speech, protected by article 19 of the Covenant, a content difterent from that generally used by malntalnlng .that lt would restrict the right ot the owner of a means of communication to decide what material will be published. The State party expressed ltS expectatlon that the Commlttee would tocus lts attention on this issue when considering the question of admissibility of the communication in the light of the provlsions ot artlcle j ot the uptlonal ~rotoco~. 5. By decision ot 25 July 1980 and on the baS1S of the lntormation betore It, the Committee concluded: (a) That the communlcatlon was admlsslble, (b) That, in accordance with article 4 (2) ot the uptlonal ~rotocol, the State party be requested to submit to the Committee, within six months ot the aate of the transmittal to it ot thlS declslon, wrltten explanatlons or statement clarifying the matter and the remedy, if any, that may have been taken by It. 6.1 In its submission under artlcle 4 (~) ot the optlonal ~rotocol, dated 25 February 1981, the State party retutes the allegation that there has been a violation ot the COVenant on CiVll ana POlitlcal Hlghts 1n Finland. It attlrms that the Finnish legislation in force, incl~ding the Finnish Penal Code, was scrutinized in connexion with the process ot ratitying the Covenant and tound to be in conformity with it. It stresses that the purpose of the prOhibition ot public encouragement to indecent benavlour between members of the same sex is to retlect the prevailing moral conceptions in Finland as interpreted by the Parliament and by large groups ot the population. It turther contends that d~scussion in the Parliament indicates that the word "encouragement" is to be interpreted in a narrow sense. MOreover, the Legislative commlttee ot the Parllament expressly provided that the law shall not hinder the presentation of tactual information on homosexuality. 6.2 The State pOints out that there has not been any case where any person was convicted under paragraph 9 (l) ot Chapter ~U ot the Penal COde and concluaes that "the application of the paragraph in questlon shows no lndlcatlon ot an interpretation of the term in such a large sense that mlght be conslaered to unduly limit the freedom of expression". 6.3 While admitting that paragraph 9 (2) constitutes a certain restrictlon on freedom of expression, the State speciflcally reters to article ~9 (J) of the COvenant, which states that the exercise of the rights provlded tor ln article 19 (2) may be SUbject to certaln restrictlons, ln so tar as these are provided by law and are necessary for the protection of pUbliC order, or ot pUbliC health or morals. 6.4 Yet, the State contends that the deciSion of the Finnish Broadcasting Company concerning the programmes referred to by the SUbmitting organizaton did not involve -163- the application of censorship but were based on- "general cons1derations ot programme policy in accordance with the internal rules of the COmpany". 7. On 7 May 1981, the authors presented an addit10nal subm1SS10n 1n Wh1Ch they discuss in general terms the impact of paragraph 9 (2) of chapter 20 of the Penal Code on journalistic freedom. They argue that article 19 1n connexion with articl!9 2 (1) of the Covenant requires Finalnd "to ensure that FBC not only deals With the subject ot homosexuality in its programmes but also that it affords a reasonable and, in so far as is possible, an impartial coverage of information and ideas on the sUbject, in accordance with its own programming regUlations." On this basis they challenge, in particular, the relevant programme directive of FB~ of 30 october 1975, still 1n torce today, Wp1ch states, inter alia, "All persons responsible for programmes are requested to observe maximum strictness and carefulness, even when tactual 1ntormation abOut homosexuality is given", drawing attention at the same time to the fact that on the same day a written warning had been issued to the head ot the tilm service ot ~'B~ to reJect any prOduct10n which gave a "positive picture of homosexuality". In addition, they dispute the State party's contention that the decis10ns taken by the Finnish Broadcasting COmpany with respect to radio and television programmes dealing with homosexuality were based on general considerations ot programme policy and d1d not constitute censorship measures taken in pursuance of paragraph 9 (2) of chapter 20 of the Penal Code. B. The Committee, considering the present communication 1n the light ot all information made available to it by the parties as provided tor 1n artiCle 5 (1) ot the Optional Protocol, hereby decides to base its views on the tacts as subrn1tted by the parties, which are not in dispute. 9.1 In considering the merits of the communication, the Human Rights Committee starts trom the premise that the State paz~y 1S responsible tor actions of the Finnish Broadcasting Company (FBC), in which the State holds a dominant stake" (90 per cent) and which is placed under specific government control. 9.2 The Committee wishes further to point out that it is not called upon to review the interpretation of paragraph 9 (2) of chapter 20 of the Finnish Penal Code. The authors of the communication have adVanced no valid argument which could indicate that the construction placed upon this provision by the Finnish tribunals was not made bona fide. Accordingly, the Committee's task is confined to clarifying whether the restrictions applied against the alleged victims, irrespective of the scope of penal prohibitions under Finnish penal law, disclose a breach of any of the rights under the Covenant. 9.3 In addition, the Committee wishes to stress that 1t has only been entrusted with the mandate of examining wheter an individ~al has suttered an actual V101at10n of his rights. It cannot review in the abstract whether nat10nal leg1s1at1on contravenes the COVenant, although such legiSlation may, 1n part1cular circumstances, prOduce adVerse effects which directly affect the 1nd1v1dual, mak1ng him thus a victim in the sense ~ontemplated by art1cles 1 and 2 ot the opt10nal Protocol. The Committee refers in this connexion to its ear11er views on communication No. R.9/3~ (S. Aumeeruddy-czlttra and 19 other Maur1t1an women v. MauritiUS). 10.1 Concerning Leo Rafael Hertzberg, the Committee observes that he cannut va11dly claim to be a victim Of a breach by the State party ot h1S r1ght under -lb4- article 19 (2) of the Covenant. The programme in which he took part was actually broadcast in 1976. No' sanctions were imposed against him. Nor has the author claimed that the programme restrictions as applied by FBC would in any way personally affect him. The sole fact that the author takes a personal interest in the dissemination of information about homosexuality does not make him a victiiR in the sense required by the Optional Protocol. 10.2 With regard to the two censored p~ogrammes of Mrs. Nikula and of Marko and Tuovi Putkonen, the Committee accepts the contention of the authors that their rights under article 19 (2)· of the Covenant have been restricted While not every individual can be deemed to hold a right to express himself through a mediuM like TV, whose available time is limited, the' situation may be different when a programme has been produced for transmission within the framework of a broadcasting organization with the general approval of the responsible authorities. On the other hand, article 19 (3) permits certain restrictions on the exercise of the rights protected by article 19 (2), as are provided by law and are necessary for the protection of public order or of public health or morals. In the context of the present communication, the Finnish Government has specifically invoked public morals as justifying the actions complained of. The Committee has considered whether, in order to assess the necessity of those actions, it should invite the parties to submit the full text of the censored programmes. In tact, only on the basis of these texts could it be possible to determine whether the censored programmes were mainly or exclusively made up of factual infnrmation about issues related to homosexuality. 10.3 The Committee feels, however, that the information before it is sufficient to formulate its views on the communication. It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities. 10.4 The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and TV are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be jUdged as encouraging homosexual behaviour. According to article 19 (3), the exercise of the rights provided for in article 19 (2) carries with it special duties and responsibilities for those organs. As far as radio and TV programmes are concerned, the audience cannot be controlled, In particular, harmful effects on minors cannot be excluded. 11. Accordingly, the Human Rights Committee is of the view that there has been no violation of the rights of the authors of the communic~tion under article 19 (2) of the Covenant. -165- communication No. R.i4/61 Individual opinion submitted by a member of the Human Rights Committee under rule 94 (3) of the Committee's provisional rUles of procedure ';"":':~......4-....:.' =,~=,=,=:== <, APPENDIX Individual opinion appended to the Committee's views at the request of Mr. Torkel Opsahl: Although I agree with the conclusion of the Committee, I wish to clarify certain points. J This conclusion preJUdges neither the right to be difterent and live accordingly, protected by article 17 of the COVenant, nor the right to have general freedom of expression in this respect, protected by art1cle 19. Under article 19 (2) and sUbject to article l~ (j), everyone must 1n pr1nciple have the right to impart information and ideas - positive or negative - abOut homosexuality and discuss any problem relating to it treely, thcough any med1a of h1S ch01ce and on his own responsibility. Moreover, in my view the conception and contents of "PUblic.moralS" reterred to in article 19 (3) are relative and changing. State-imposed restr1ctions on freedom of expression must allow for this fact and shouid not be applied so as to perpetuate prejUdice or promote intolerance. It is of speCial importance to prot,ect freedom of expression as regards minority views, including those that otfe~d, shock or disturb the majCrity. Therefore, even if such laws as paragraph 9 (2) of chapter 20 of the ~innish Penal Code may reflect prevailing moral conceptions, this is in itselt not sUfticient to justify it under articre 19 (J). It must also be shown that the application of the restriction is "necessary"• However, as the Committee has noted, this law has not been directly applied to any of the alleged victims. The question remains whether they have been more indi~ectly affected by it in a way Which can be said to intertere With the1r freedom of express10n, and it so, whether the groundS were Justifiable. It is clear that nobody - and in partiCUlar no State - has any duty under the Covenant to promote pUblicity tor intormation and ideas of all kindS. Access to media operated by others is always and necessarily more limited than the general freedom ot expreSSion. It follows that such access may be controlled on groundS which do not have to be justitied under article 19 (j). It is true that self-imposed restrictions on publishing, or the internal programme policy of the media: may threaten the spirit ot treedom ot expreSSion. Nevertheless, it is a matter of common sense that such decisions either entirely escape control by the Committee or must be accepted to a larger extent than externally imposed restrictions such as enforcement of criminal law or otficial cen9~rship, neither of which took place in the present case. Not even media controlled by the State can under the COVenant be under an obligatl0n to pUb11Sh all that may be published. It is not possible to apply the criteria ot article 19 (3) to selt-imposed restrictions: Quite apart trom the "pub11C morals" issue, one cannot reqUire that they shall be only such as are "provided by law and are -166- necessary" for the particular purpose. Therefore I prefer not to express any opinion on the possible reasons for the decisions complained of in the present case. The ~ole of mass media in public debate depends on the relationship between journalists and their superiors who decide what to publish. I agree with the authors of the communication that the freedom of journalists is important, but the issues arising here can only partly be examined under article 19 of the Covenant. The following members of the Committee associated themselves with the individual opinion submitted by Mr. Opsahl: Mr. Rajsoomer Lallah, Mr. Walter Surma Tarnopolsky. -167-