Advertising condoms, free speech and offending religious sensibilities: Gachechiladze v Georgia

Background

In Gachechiladze v Georgia [2021] ECHR 665, Ms Gachechiladze produced condoms for sale online and via vending-machines under the brand name Aiisa, literally meaning “that thing” – which, apparently, is how embarrassed purchasers often asked for them. The design of the packaging was varied (and, it would appear, intended to be jokey), with depictions of such things as popular fictional characters, former and current political figures, various objects such as lollipops, quotes from Georgian literature and phrases allegedly reflecting social biases [5]: examples here.

In late 2017 and early 2018, she created four designs that later became the subject of administrative-offence proceedings against her: a cartoon of a grinning panda face with the text “I would strum down but it’s the Epiphany”, a cartoon of an inflated crown seemingly made from a condom, with the text “Miraculous Victory” underneath, a cartoon of “King Tamar”, a female ruler of Georgia between 1184 and 1213 canonised as a saint by the Georgian Orthodox Church, and a cartoon of a vertically-positioned female left hand with red nail polish and a condom over the raised index and middle fingers [6-10].

In March 2018, the chairman of a conservative civil‑political movement, Kartuli Idea (“Georgian Idea”), complained to the Municipal Inspectorate of Tbilisi City Hall that Aiisa had used designs that were “insulting to the religious feelings of Georgians” [11] and in April Ms Gachechiladze was served with an administrative-offence report [18]. The situation escalated, culminating in a judgment by the Tbilisi Court of Appeal, sitting as a court of final instance, that

“it is without doubt that at the national level in Georgia, figures and religious symbols which are depicted on items of a sexual nature – condoms – are perceived as an action aimed against public morals. Additionally, in the case under consideration, it should be noted that the [applicant] could easily appreciate and take into account the circumstance that her action would have been objectively perceived as an insult to religion, religious symbols and monuments which would target a large part of society” [24].

The arguments

Before the ECtHR, Ms Gachechiladze complained that there had been an unjustified interference with her right to freedom of expression, contrary to Article 10, on account of the administrative-offence proceedings against her and the resulting sanctions for using designs in respect of her products which were deemed by the domestic courts to be unethical advertising [35]. Further, she had been promoting safe sex, and “the impugned decisions had effectively imposed a world view of the dominant religious group on her” [43].

The Government submitted that Ms Gachechiladze had suffered no significant disadvantage because the fine of approximately 165 euros had been modest, the sanction had targeted only four of the many designs that she used, and the publicity had increased her company’s sales [36]. The interference had had a legal basis and had pursued the legitimate aims of protecting the rights of others not to have their religious beliefs insulted and of protecting public morals. Further, the four disputed designs were commercial advertising rather than speech contributing to an important debate in a democratic society [44].

The judgment

The Court was prepared to proceed on the assumption that the impugned measures had a basis in domestic law [48] and that the interference in respect of all four designs pursued a legitimate aim within the meaning of Article 10 §2 [48]. However,

“freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, 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. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no ‘democratic society’” [49].

The Court was critical of various aspects of the judgment by the Tbilisi Court of Appeal. In the context of “law and religion”, though the Court found it difficult to accept that the domestic authorities had erred in finding that the design with the cartoon of “King Tamar” could be seen as a gratuitous insult to the object of veneration for Georgian Orthodox Christians [58], it took issue with the apparent implication in the domestic courts’ decisions that the views on ethics of the members of the Georgian Orthodox Church should take precedence in balancing the various values protected under the Convention and the Constitution of Georgia. It reiterated that

“in a pluralist democratic society, those who choose to exercise the freedom to manifest their religion must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith” [62].

In the case of three of the four disputed designs, the reasons adduced by the domestic courts had not been relevant and sufficient to justify the interference. There had therefore been a violation of Article 10 [63].

Cite this article as: Frank Cranmer, "Advertising condoms, free speech and offending religious sensibilities: Gachechiladze v Georgia" in Law & Religion UK, 29 July 2021, https://lawandreligionuk.com/2021/07/29/advertising-condoms-free-speech-and-offending-religious-sensibilities-gachechiladze-v-georgia/

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