Ban on 'meet the extraterrestrials' poster not breach of human rights

A ban on a poster campaign by an organisation promoting contact with extraterrestrials and advocating human cloning was not a breach of freedom of expression, human rights judges have ruled.

The decision by the European Court of Human Rights was only reached by a 9-8 majority, with three dissenting judges criticising their counterparts for creating “a new category of ‘lower level’ speech … deprived of the protection granted to speech in general”.

In a concurring opinion, British judge and president Sir Nicolas Bratza said he had voted with the majority “with some hesitation”.

Hearing the case of Mouvement Raëlien Suisse v Switzerland (application 16354/06) on appeal the grand chamber of the Strasbourg court found that the Swiss authorities had acted within the confines of their margin of appreciation in the case and had not breached article 10.

In 2001, the Swiss police refused the Mouvement Raëlien permission to put up posters featuring the faces of extraterrestrials and a flying saucer, with details of its website and phone number, because, they said, the group engaged in activities that were against the public order and were immoral.

The refusal was upheld by five courts on several grounds, including that the group was regarded as a dangerous sect, indirectly promoted eugenics, and practised a form of “sensual meditation” that could lead to sexual abuse.

In its ruling on Friday (13 July 2012), the European court said there had been “no general ban on imparting certain ideas, only a ban on the use of regulated and supervised facilities in public space” and that the Swiss authorities had acted lawfully.

Distinguishing the circumstances of the case from those in Women on Waves – where Portugal had refused entry into its territorial waters to a ship where women could receive advice about abortion – the court said there was no “unconditional or unlimited right to the extended use of public space, especially in relation to facilities intended for advertising or information campaigns”.

The court pointed out that the group was still able to continue to disseminate its ideas through its website and other means such as leafleting.

The court also said that while there was “little scope” for restrictions on political speech in the human rights convention, governments had “a wider margin of appreciation” when regulating freedom of expression “in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion” and “in the regulation of speech in commercial matters or advertising”.

Proselytising function

Although the present case fell outside the commercial advertising context, it was “nevertheless closer to commercial speech than to political speech per se, as it has a certain proselytising function”, the court continued, before concluding that the state’s margin of appreciation was therefore “broader”.

In the circumstances, the Swiss authorities had been entitled to consider that the group’s doctrine represented “criticism directed at contemporary democracies” that was “capable of undermining public order, safety and morals” and to ban the posters accordingly.

In a joined dissenting opinion, the Hungarian, FYROM and Montenegro judges (András Sajó, Mirjana Lazarova Trajkovska and Nebojša Vu?ini?) said the ruling introduced a new type of speech – “a so-called ‘non-political’, ‘quasi-commercial’ speech that ‘has a certain proselytising function’ is deprived of the protection granted to speech in general”.

This new standard, they warned, “runs counter to the court’s well-established case-law and diminishes the protection of speech, without offering compelling reasons”.

Set up in 1976, Mouvement Raëlien– named after its founder Claude Vorilhon (pictured), known as “Raël” – has as its main aim to make contact and establish good relations with extraterrestrials.

The group’s doctrine is based on Rael’s alleged contact with the so-called Elohim, extraterrestrials with “advanced technology”.

It advocates a system of government called “geniocracy”, where power should be entrusted only to humans with superior intellect and has expressed opinions in favour of human cloning.