ECtHR says “In circumstances where a message on issues of public interest [including knowledge about same-sex relationships] was at least partly involved, the margin of appreciation afforded to the domestic courts was necessarily narrower compared to situations concerning solely commercial speech.” (Gachechiladze v. Georgia, no. 2591/19 – Judgment of 22 July 2021)

ECtHR says “In circumstances where a message on issues of public interest [including knowledge about same-sex relationships] was at least partly involved, the margin of appreciation afforded to the domestic courts was necessarily narrower compared to situations concerning solely commercial speech.”

CASE OF GACHECHILADZE v. GEORGIA

(Application no. 2591/19)

JUDGMENT

Art 10 • Freedom of expression • Lack of relevant and sufficient reasons to justify administrative-offence fine, forced product recall and ban on future use of condom packaging designs • Designs regarded as unethical advertising contrary to the religious and national values of Georgian society • Expression not merely commercial but also contributing to public debate concerning various issues of general interest, thereby warranting a narrower margin of appreciation • No demonstration of the existence of a pressing social need • Unacceptable prioritisation of views on ethics of the members of the Georgian Orthodox Church in the balancing of various values protected under the Convention and the Constitution of Georgia precedence

Art 35 § 3 (b) • Significant disadvantage in light of sweeping measures, despite lack of detailed financial account submitted by applicant, and raising important questions as to application of domestic legislation

22 July 2021

55.  However, the Court notes that unlike the circumstances which obtained in the case referred to by the domestic courts and the Government (see the previous paragraph), the applicant’s brand also appears to have been aimed at initiating and/or contributing to a public debate concerning various issues of general interest. In particular, the declared objective of the brand, expressed at the time of its launch, was to shatter stereotypes, and “to aid a proper understanding of sex and sexuality” (see paragraph 5 above). Some images used by the applicant concerned same-sex relationships (see paragraph 5 above; see also, in so far as negative attitudes towards the LGBT community in Georgian society are concerned, Identoba and Others v. Georgia, no. 73235/12, § 68, 12 May 2015). Furthermore, several designs used by the brand also appear to have been a social as well as political commentary on various events or issues (see paragraph 5 above). It is also relevant to note that the organisation which lodged a complaint in respect of the applicant’s brand was apparently active in civil and political matters (see paragraph 11 above). Therefore, the Government’s argument that the applicant’s “expression” had to be treated as having been made solely in a commercial context, giving the authorities a broad margin of appreciation at domestic level, should be treated with some caution. In circumstances where a message on issues of public interest was at least partly involved, the margin of appreciation afforded to the domestic courts was necessarily narrower compared to situations concerning solely commercial speech.

Gachechiladze v. Georgia (no. 2591/19) – Judgment of 22 July 2021

Summary: The applicant, Ani Gachechiladze, is a Georgian national who was born in 1995 and lives in Tbilisi.
The case concerns administrative-offence proceedings against the applicant, an entrepreneur, for her advertising of condoms.
The domestic courts found that four of the designs she had used in the social media and on the packaging for the condoms she produced under the name Aiisa, meaning “that thing”, were unethical. They were banned from future use.
Relying on Article 10 (freedom of expression), the applicant submits that her brand promoted the use of condoms and safe intercourse in a society in which sex and sex education are, according to her, considered taboo, and complains about the proceedings against her and the ban on using the four designs.
Violation of Article 10

See: https://hudoc.echr.coe.int/eng#{%22appno%22:[%222591/19%22],%22itemid%22:[%22001-211123%22]}