EHRM, 06-05-2003, nr. 44306/98

The applicants submitted that the State was directly responsible for the interference with their freedom of expression and assembly as it was a public entity that had built the Galleries on public land and a minister who had approved the transfer into private ownership. The local authority could have required that the purchaser enter into a walkways agreement, which would have extended by-law protection to access ways, but did not do so.

The applicants also argued that the State owed a positive obligation to secure the exercise of their rights within the Galleries. As the information and ideas which they wished to communicate were of a political nature, their expression was entitled to the greatest level of protection. Access to the town centre was essential for the exercise of those rights as it was the most effective way of communicating their ideas to the population, as was shown by the fact that the local authority itself used the Galleries to promote a political proposal regarding the reorganisation of local government. Yet, the applicants had been refused permission to use the Galleries to express their opposition to local government action, showing that the private owner was not neutral in its decisions as to who should be given permission. The finding of an obligation would impose no significant financial burden on the State as it was merely under a duty to put in place a legal framework which provided effective protection for their rights of freedom of expression and peaceful assembly by balancing those rights against the rights of the property owner, as already existed in a number of areas. They considered that no proper balance had been struck as protection was afforded to property owners, who wielded an absolute discretion as to who should have access to their land, while no regard was given to individuals seeking to exercise their individual rights.

The applicants submitted that it was for the State to decide how to remedy this shortcoming and that any purported definitional problems and difficulties of application could be resolved by carefully drafted legislation. A definition of ‘quasi-public’ land could be proposed that excluded, for example, theatres. They also referred to case-law from other jurisdictions (in particular the United States) where concepts of reasonable access or limitations on arbitrary exclusion powers of landowners were being developed, inter alia, in the context of shopping malls and university campuses, which gave an indication of how the State could approach the perceived problems.

The Government submitted that at the relevant time the town centre was owned by a private company, Postel, and that it was Postel, in the exercise of its rights as property owner, which refused the applicants permission to use the Galleries for their activities. They argued that, in those circumstances, the State could not be regarded as bearing direct responsibility for any interference with the applicants' exercise of their rights. The fact that the land had previously been owned by the local authority was irrelevant.

In so far as the applicants claimed that the State's positive obligation to secure their rights was engaged, the Government acknowledged that positive obligations were capable of arising under Articles 10 and 11 of the Convention. However, such obligations did not arise in the present case, having regard to a number of factors. The alleged breach did not have a serious impact on the applicants, who had many other opportunities of exercising their rights and used them to obtain thousands of signatures on their petition as a result. The burden imposed on the State by the finding of a positive obligation would also be a heavy one. When selling land, local authorities were not under any duty to enter into walkways agreements to render access areas subject to by-law regulation. The State's ability to comply with such an obligation by entering into that type of agreement when selling State-owned land would depend entirely on obtaining the cooperation of the private-sector purchaser, who might reasonably not want to allow any form of canvassing on his land and might feel that customers of commercial services would be deterred by the presence of political canvassers, religious activists, animal rights campaigners, etc.

Furthermore, a fair balance had been struck between the competing interests in this case. The applicants, in the Government's view only looked at one side of the balancing exercise, whereas legitimate objections could be raised by property owners if they were required to allow people to exercise their freedom of expression or assembly on their land, when means of exercising those rights were widely available on genuinely public land and in the media. As the facts of this case illustrated, the applicants could canvass support in public places, on the streets, in squares and on common land, they could canvass from door to door or by post, and they could write letters to the newspapers or speak on radio and television. The Government argued that it was not for the Court to prescribe the necessary content of domestic law by imposing some ill-defined concept of ‘quasi-public’ land to which a test of reasonable access should be applied. That no problems arose from the balance struck in this case was shown by the fact that no serious controversy had arisen to date. The cases from the United States and Canada referred to by the applicants were not relevant, as they dealt with different legal provisions and different factual situations and, in any event, did not show any predominant trend in requiring special regimes to attach to ‘quasi-public’ land.

The Court reiterates the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals (see Özgür Gündem v. Turkey, no. 23144/93, §§ 42–46, ECHR 2000-III, where the Turkish State was found to be under a positive obligation to take investigative and protective measures where the pro-PKK newspaper and its journalists and staff had been the victims of a campaign of violence and intimidation; see also Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000, concerning the obligation on the State to protect freedom of expression in the employment context).

In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see, inter alia, Rees v. the United Kingdom, judgment of 17 October 1986, Series A no. 106, p. 15, § 37, and Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, pp. 3159-60, § 116).

The applicants were stopped from setting up a stand and distributing leaflets in the Galleries by Postel, the private company which owned the shopping centre. The Court does not find that the authorities bear any direct responsibility for this restriction on the applicants' freedom of expression. It is not persuaded that any element of State responsibility can be derived from the fact that a public development corporation transferred the property to Postel or that this was done with ministerial permission. The issue to be determined is whether the respondent State has failed in any positive obligation to protect the exercise of the applicants' Article 10 rights from interference by others — in this case, the owner of the Galleries.

The nature of the Convention right at stake is an important consideration.

The Court notes that the applicants wished to draw the attention of their fellow citizens to their opposition to the plans of the local authority to develop a playing field and thus to deprive their children of green areas to play in. This was a topic of public interest and contributed to debate about the exercise of local government powers. However, while freedom of expression is an important right, it is not unlimited. Nor is it the only Convention right at stake. Regard must also be had to the property rights of the owner of the shopping centre under Article 1 of Protocol No. 1.

The Court has noted the applicants' arguments and the references to the United States cases, which draw attention to the way in which shopping centres, although their purpose is primarily the pursuit of private commercial interests, are designed increasingly to serve as gathering places and events centres, with multiple activities concentrated within their boundaries. Frequently, individuals are not merely invited to shop but encouraged to linger and participate in a wide range of activities — from entertainment to community, educational and charitable events. Such shopping centres may assume the characteristics of the traditional town centre and indeed, in this case, the Galleries is labelled on maps as the town centre and either contains, or is close to, public services and facilities. As a result, the applicants argued that the shopping centre must be regarded as a ‘quasi-public’ space in which individuals can claim the right to exercise freedom of expression in a reasonable manner.

The Government have disputed the usefulness or coherence of employing definitions of ‘quasi-public’ spaces and pointed to the difficulties which would ensue if places open to the public, such as theatres or museums, were required to allow free access for purposes other than the cultural activities they offered.

The Court would observe that, although the cases from the United States in particular illustrate an interesting trend in accommodating freedom of expression to privately owned property open to the public, the Supreme Court has refrained from holding that there is a federal constitutional right of free speech in a privately owned shopping mall. Authorities from the individual States show a variety of approaches to the public- and private-law issues that have arisen in widely differing factual situations. It cannot be said that there is as yet any emerging consensus that could assist the Court in its examination in this case concerning Article 10 of the Convention.

That provision, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance). Where, however, the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of the Convention rights by regulating property rights. A corporate town where the entire municipality is controlled by a private body might be an example (see Marsh v. Alabama, cited at paragraph 26 above).

In the present case, the restriction on the applicants' ability to communicate their views was limited to the entrance areas and passageways of the Galleries. It did not prevent them from obtaining individual permission from businesses within the Galleries (the manager of a hypermarket granted permission for a stand within his store on one occasion) or from distributing their leaflets on the public access paths into the area. It also remained open to them to campaign in the old town centre and to employ alternative means, such as calling door-to-door or seeking exposure in the local press, radio and television. The applicants did not deny that these other methods were available to them. Their argument, essentially, was that the easiest and most effective method of reaching people was to use the Galleries, as shown by the local authority's own information campaign (see paragraph 21 above). The Court does not consider, however, that the applicants can claim that they were, as a result of the refusal of the private company, Postel, effectively prevented from communicating their views to their fellow citizens. Some 3,200 people submitted letters in support. Whether more would have done so if the stand had remained in the Galleries is speculation which is insufficient to support an argument that the applicants were unable otherwise to exercise their freedom of expression in a meaningful manner.

Balancing the rights in issue and having regard to the nature and scope of the restriction in this case, the Court does not find that the respondent State failed in any positive obligation to protect the applicants' freedom of expression.

Consequently, there has been no violation of Article 10 of the Convention.