By Amber Melville-Brown, David Price Solicitors and Advocates, London

The right not to be offended

Veronica Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin)

The High Court has held that the rights of pharmacists not to receive grossly offensive material through the post outweighed the right of a Catholic protestor against the 'morning-after pill'.

Veronica Connolly was convicted in the magistrates' court of an offence under the Malicious Communications Act 1988, which provides that any person who sends to another person an article that conveys a message which is indecent or grossly offensive is guilty of an offence if his purpose or one of his purposes in sending it is to cause distress or anxiety to the recipient.

She had sent photographs of aborted foetuses to a number of chemists to express her view about abortion, including via the morning-after pill. One of the pharmacies complained, leading to her arrest, charge and conviction. She appealed to the Crown Court and then to the High Court by way of case stated. According to Lord Justice Dyson, who heard the appeal, she had to show that the decision that the photographs were indecent and grossly offensive 'was one which no court acquainted with the ordinary use of language could have reached'.

Ms Connolly argued that given current standards were so low, the material could not be regarded as indecent or grossly offensive, and that where the communication of complaint was part of a lawful protest, conviction under the Act would constitute an infringement of her rights to freedom of expression (and religious expression) guaranteed by article 10 (and 9) of the European Convention on Human Rights.

The High Court found, as a matter of fact, that she had sent 'close-up colour photographs of dead 21-week-old foetuses', that she did so with the purpose of causing distress or anxiety and that recipients of the material were actually offended by it: 'They are shocking and disturbing. That is why Mrs Connolly sent them to the pharmacists.' According to Lord Justice Dyson: 'It is impossible to say that no reasonable tribunal could have concluded that these images were grossly offensive.' However, the court had to consider her competing article 10 (and 9) rights.

The court found that her article 10 rights were engaged: 'The sending of the photographs was an exercise of the right to freedom of expression... Since it related to political issues, it was an expression of the kind that is regarded as particularly entitled to protection by article 10.' It then considered whether the interference with that right was prescribed by law, necessary in a democratic society, and was to further the legitimate aim of the rights of others.

The court accepted the Director of Public Prosecutions' submission that the right not to receive such material, when it was sent for the purpose prescribed in the Act, was a 'right of others' within the meaning of article 10(2), although the right to be protected would depend both on the offensiveness of the material and the party requiring protection. For example, a doctor used to seeing such things might be 'less likely to find the photographs grossly offensive than the pharmacist's employees'.

Undertaking a final balancing exercise between the relevant engaged rights, the court found that Mrs Connolly's right to express her views about abortion did not justify the distress and anxiety that she intended to cause.

The recipients were not targeted because they could influence a public debate on abortion. The most she could hope to do was to persuade the recipient shops not to sell the morning-after pill. Even if she managed to achieve that limited result, it would not be likely to contribute greatly to any public debate about abortion. Accordingly, the offence had been made out and was not mitigated by the exercise of her free speech or indeed freedom of thought under guaranteed by article 9.

The right to offend

Vereinigung Bildender Kunstler v Austria ECHR 25 January 2007, Application number 68354/01

While Ms Connolly was convicted in the UK for having offended others, an art exhibition in Austria did not offend to such an extent as to outweigh the artist's and exhibitor's right to freedom of expression.

In 1998, an association of artists put on a public exhibition entitled 'the century of artistic freedom', which included 'Apocalypse', a painting by Austrian artist Otto Muhl, which so offended one incensed exhibition goer that he defaced it with red paint shortly before the exhibition closed. Mr Meischberger, a member of the National Assembly (Nationalratsabgeordneter) was equally incensed, given that he featured in it, being shown gripping the ejaculating penis of Jorg Haider while at the same time being touched by two other politicians and ejaculating on Mother Teresa.

He sought an injunction against any further exhibition of the work, claiming it 'debased him and his political activities, and made statements as to his allegedly loose sexual life'. The Vienna Commercial Court rejected the claim on the grounds, as summarised by the European Court of Human Rights (ECtHR) majority judgment, that it 'resembled a comic strip' and 'obviously did not represent reality'. It also featured representatives of the claimant's political party, the FPO, which had strongly criticised Mr Muhl's work and could consequently be considered 'a kind of counter attack'.

On appeal, the Vienna Court of Appeal granted an injunction prohibiting any further exhibition of the work; his image was substantially deformed by wholly imaginary elements without it being evident that it was aimed at satire or exaggeration. The painting did not fall within the scope of article 10 and merely constituted a debasement of the claimant's political standing. The Supreme Court rejected an appeal and the matter proceeded to the ECtHR.

The majority here accepted that the painting did portray Mr Meischberger in a somewhat outrageous manner, but it 'amounted to a caricature of the persons concerned using satirical elements'. It did not concern his private life but his public standing as a politician and, accordingly, he had to 'display a wider tolerance in respect of criticism'. Further, the court did not find unreasonable the first instance finding that the portrayal could be understood to constitute some sort of counter-attack against the FPO. It held that 'satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist's right to such expression must be examined with particular care'. And so it did. The injunction was 'disproportionate to the aim it pursued and therefore not necessary in a democratic society'. There had been a violation of article 10.

The court was finely divided in this case, finding in the applicant's favour by a majority of four to three. The huge divergence of opinion may not be surprising given the subject-matter, which Judge Loucaides described as 'a senseless, disgusting combination of lewd images whose only effect is to debase, insult and ridicule each and every person portrayed'.

The majority decision of the court reiterated that freedom of expression 'constitutes one of the essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual'. It is applicable 'not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb'.

These cases show that the courts have to undertake a fact-specific assessment of the various rights at play when considering matters of this nature. While these two decisions might seem to run counter to each other, it is this personalised analysis of the individual facts and rights at play that should result in cases which affect individuals but also societies as a whole, that the right to offend or not to be offended are in the majority of cases fairly balanced and justice is ultimately done.