Religious sensibilities, free speech and condom adverts

The decision in Gachechiladze v Georgia (Application No. 2591/19, judgment 22 July 2021) provides us with a rare example of free speech regulation via principles of blasphemy. Once quite common, with evidence of more tolerance in most European states case law is rare. However, the Court recently considered this conflict, and on rather unusual facts.

The applicant produced condoms with various designs on the packaging, some of which were subjected to administrative-offence proceedings, on the basis that they constituted unethical advertising. The applicant was fined, ordered to cease using and disseminating the relevant designs, and to issue a product recall. The Court accepted that the interference in respect of all four designs had pursued the legitimate aims of protecting the religious rights of others and/or protecting public morals. It also found that the brand aimed at initiating and/or contributing to a public debate concerning various issues of general interest: to shatter stereotypes and to aid a proper understanding of sex and sexuality.

As to the four disputed designs, one of them had had referred to the former female ruler of Georgia, who had been canonised as a saint by the Georgian Orthodox Church. Canonising a public figure or, indeed, any person, could not of itself serve to exclude a discussion of his or her persona in public debate. Nor could the production and dissemination of condoms be deemed in and of itself inappropriate. However, the applicant had failed to explain why or how the use of that persona on condoms with the sign had contributed to any public debate. Thus, the domestic authorities were entitled to find it was a gratuitous insult to the object of veneration of Georgians following the Orthodox Christian faith.

However, with respect to the remaining designs, the authorities had failed to adduce sufficient evidence to justify the interference. As regards the design featuring a panda face and referencing a Christian holy day, the fact that the image and accompanying text had unjustifiably insulted the lifestyle of practising Orthodox Christians, were not sufficient to justify the necessity of the interference. The piece appeared to have been a satirical take on different phrases used frequently in Georgia, essentially constituting the criticism of various ideas, including those relating to religious teachings and practices. The two remaining designs had featured a female left hand with a condom placed over two raised fingers and an image of a crown apparently made from a condom with a caption referring to a historical event. In the Court’s view, although the most trivial image might provoke very specific associations with a religious symbol, it had been for the domestic courts to demonstrate why that had been the case and they had failed to do so. As regards the latter image, it had remained unclear why the domestic courts had considered that the image could fall within the definition of unethical advertising. Nor had it been explained whether there had existed any “pressing social need” to limit the dissemination of those two designs.

The Court disagreed that the views on ethics of the members of the Georgian Orthodox Church should take precedence. In its view, in a pluralist democratic society those who chose to exercise the freedom to manifest their religion had to tolerate and accept the denial by others of their religious beliefs. The case raises interesting issues on the restriction of morally offensive speech, and illustrates that sound reasons need to be given by the domestic authorities to restrict speech, however irritating and offensive it might be to the majority view. Nevertheless, it will raise concerns that religious sensibilities might be afforded undue weight by the Court.