ANIMAL DEFENDERS INTERNATIONAL v. THE UNITED KINGDOM

FOURTH SECTION

Application no. 48876/08
by ANIMAL DEFENDERS INTERNATIONAL
against the United Kingdom
lodged on 11 September 2008

STATEMENT OF FACTS

THE FACTS

 The circumstances of the case

The applicant is a non-governmental organisation (“ADI”) based in the United Kingdom. Its aims include the protection from, and alleviation of, suffering by animals. It campaigns against the use of animals in commerce, science and leisure, seeking to achieve changes in law and public policy and to influence public and parliamentary opinion towards that end. Given ADI’s campaigning objectives, it is not eligible for registration as a charity.

1.The prohibited television advertisement

In 2005 ADI began a campaign called ‘My Mate’s a Primate’ which was directed against the keeping and exhibition of primates in zoos and circuses and their use in television advertising. It aimed to raise public awareness of such exploitation. As part of the campaign, ADI wished to screen a 20-second television advertisement. The proposed advertisement opened with an image of an animal’s cage in which a girl in chains gradually emerged from the shadows. The screen then went black and three messages were then relayed in sequence: “A chimp has the mental age of a four year old”; “Although we share 98% of our genetic make-up they are still caged and abused to entertain us”; and “To find out more, and how you can help us to stop it, please order your £10 educational information pack”. In the final shot, a chimpanzee was in the same position as that of the girl. The proposed advertisement was submitted to the Broadcast Advertising Clearance Centre (“the BACC”) for a review of its compliance with relevant laws and codes.

On 5 April 2005 the BACC declined to clear the advert, drawing attention to the political nature of ADI as reflected in its non-charitable status. No objection was raised about the content of the advertisement. In a letter of 6 May 2005 the BACC confirmed this decision and explained:

“...we only carry advertising for registered charities and this affords the stations some protection that the activities of the charity will not breach Section 4 of the ASA Code by becoming wholly or mainly political during the life of the commercial. This is because the Charity Commission only registers charities that can demonstrate that they are not wholly or mainly political and monitors their activities. Even though your proposed script did not ask for donations per se and offered a product for sale, the income generated and its subsequent use would not be regulated by any authority and the stations would be exposed to the risk that they would be carrying an unacceptable advertiser. This is not to say that we suspect the intentions of this advertiser, but rather it is a dangerous precedent to set. Likewise if any advertiser was to use the income generated from a product advertised in a commercial for wholly or mainly political means it would be unacceptable under the code.”

2. The High Court ([2006] EWHC 3069)

On 19 October 2005 ADI requested leave to apply for judicial review challenging the statutory prohibition on political advertising on television and radio provided for by sections 319(2) and 321(2) of the Communications Act 2003 (“the 2003 Act”). ADI sought a declaration under section 4 of the Human Rights Act 1998 (“HRA”) that the prohibition was incompatible with Article 10 of the Convention. It was accepted that the circumstances of the case engaged Article 10 § 1 since the proposed advertisement was caught by the prohibition as ADI was evidently a body “wholly or mainly of a political nature”, that the prohibition was “prescribed by law” and that it pursued the legitimate aim of the “protection of the rights of others”. The issue for the High Court was whether the prohibition was “necessary in a democratic society”.

On 4 December 2006, the High Court (Auld LJ and Ouseley J) dismissed ADI’s claim. Both judges considered the prohibition to have been widely defined, Ouseley observing that it covered “a continuum of political activity and intensity from party political activity at election time to the pursuit by non-political bodies at any time of particular interests of public concern”. Both noted that political expression was a highly prized form of expression. However, they found the interference to be justified.

Both judges analysed this Court’s judgments in VgT Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001‑VI) and in Murphy v. Ireland (no. 44179/98, ECHR 2003‑IX (extracts)). They rejected reliance on the VgT case, which case had been decided on its particular facts. Auld LJ stressed that the 2003 Act had a number of “ameliorating features” which were not in the legislation examined in the VgT case including a relaxation of controls on the timing and content of political and election broadcasts. The judges also relied on the judgment in R (ProLife Alliance) v BBC ([2003] UKHL 23) wherein it was stated that the ratio of the VgT judgment was difficult to discern. Both judges doubted the usefulness of the Murphy judgment since it did not concern political advertising and also expressed doubts about the general applicability of the Court’s observation in the Murphy case that the margin of appreciation for restrictions on political advertising might be narrower than those on religious advertising. Bearing all this in mind, Auld LJ stated that the High Court could paint with a “broader brush than the Strasbourg Court”.

Both Auld LJ and Ouseley J emphasised the rationale for introducing the prohibition: to preserve the integrity of the democratic process by ensuring that the broadcasting media were not abused and distorted by wealthy interests in favour of a certain political agenda. Ouseley J thus characterised the prohibition as a “restriction aimed at supporting the democratic process”, rather than one based on a specific content or taste objection. Ouseley J considered the preservation of the impartiality of the broadcasting media to be a further objective of the prohibition. Both judges held that it was legitimate to single out the broadcast media for regulation because of its potential to have a more powerful impact than other media forms.

For Auld LJ, the “central issue” was the width of the discretionary judgment to be afforded to Parliament in passing the prohibition. Although both judges noted that the Court had traditionally accorded a narrow margin of appreciation to restrictions on the freedom of political speech, there was a lack of consensus across the member States on the matter of political advertising. They observed that the Court had also afforded a wider margin to member States in the framing of measures designed to protect democratic processes. They considered that the domestic executive and legislature were likely to have a better grasp of democratic needs and were better placed to assess the impact of broadcasting on domestic political debate than national or non-national courts. They noted that the 2003 Act had been passed without member dissent. Auld LJ concluded that these factors called for “caution”, and militated against a narrow discretionary ambit of judgment whilst Ouseley J accorded a “considerable discretionary area of judgment” to the view of Parliament.

Finally, both judges rejected the argument that the prohibition was disproportionate as it applied outside election periods and/or to groups such as ADI who were not associated with party politics or electoral campaigns. In the first place, Auld LJ emphasised that it would not be “a principled or logical distinction” to limit the prohibition to election periods. Both judges considered that political advertising in the broadcasting media outside such periods was likely to have an “equally obvious” influence on the democratic process. In this respect, Ouseley J noted that the broadcast media were ever-present, that contentious democratic issues could arise at any time and that purchased influence could affect the promotion of legislation, the decision to hold an election or its ultimate outcome. Both judges also considered that it was impracticable, arbitrary and potentially unfair to attempt to draw a line between party political matters and other matters of public importance. The distortion of the political debate could take many forms and could embrace a vast range of matters of public interest and certain issues would be difficult to categorise. There was also a risk that such a distinction might allow political parties to “contract out” their political advertising to “splinter or supporter groups” which would be free from restriction. They emphasised that the prohibition was not a “total” ban in the sense that there were other effective forums open to ADI in which to express its views, such as print media, news, discussion programmes and, increasingly so, the internet.

3. The House of Lords ([2008] UKHL 15)

On 12 March 2008 the House of Lords (Lord Bingham, Lord Scott, Baroness Hale, Lord Carswell and Lord Neuberger) unanimously dismissed the applicant’s appeal.

Lord Bingham gave the leading opinion of the Court and began by recognising that, since the statutory prohibition interfered with political expression, the standard of justification imposed on the State was “high” and the margin of appreciation was correspondingly small. The objective of the impugned prohibition was described as follows:

“28. The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated.

The objective was not achieved if:

“...well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

Lord Bingham did not think that the full strength of this argument had been deployed in the above-cited VgT judgment.

Lord Bingham considered that a blanket ban was necessary to avoid the risk of advertisements by organisations with objectionable goals and he observed that this option had been discounted in VgT but recognised in the above-cited Murphy judgment. That the prohibition was confined to the broadcast media only was explained by the particular pervasiveness and potency of television and radio, a factor recognised by this Court in Jersild v. Denmark (23 September 1994, § 31, Series A no. 298) and in the Murphy judgment (at § 69) although he noted that the Court appeared to discount the point somewhat in the VgT judgment (at § 74).

Lord Bingham did not accept that the Government could have drafted a less restrictive prohibition while preserving the integrity of the democratic process. Relying on the Murphy judgment, he rejected any suggestion that political advertising could be regulated or ‘rationed’ by time, frequency, expenditure or by the nature and quality of advertisements: such a system could be circumvented by the formation of small and apparently independent groups pursuing very similar political objects; it would be difficult to regulate fairly, objectively and coherently; it would accord excessive discretion to officials; and it would mean that it would be even more difficult for broadcasters to fulfil their duty of impartiality. Parliament had been unable to find a workable compromise despite a request by the Joint Human Rights Committee. He also emphasised that other means of communication were available to the applicant, suggesting that this was another factor which had been inadequately considered in VgT:

“32. While television and radio are, as noted above, the preferred media for advertising, it is not irrelevant that all other media are open to the appellant: newspapers and magazines, direct mailshots, billboards, public meetings and marches. The appellant may also contribute to broadcast programmes and radio phone-ins. The European Court attached little weight to this consideration in [the VgT judgment, at §§ 74, 77], but did so in [the Murphy judgment, § 74]. In my opinion, this is a factor of some weight. The case is quite unlike that in Bowman v United Kingdom...where the legislative provision in question was held to operate, for all practical purposes, as a total barrier to Mrs Bowman’s communication of her views.”

He further considered that the judgment of Parliament should be given great weight for three reasons. In the first place, it was reasonable to expect that, unlike judges, democratically-elected politicians would be “peculiarly sensitive” to the measures necessary to safeguard the integrity of democracy. Secondly, the courts should be slow to “override” the clear judgment of Parliament that the prohibition was important as revealed by its decision to pass the legislation notwithstanding the Government’s inability to introduce it with a statement of compatibility. Thirdly, both the domestic courts and this Court accepted that legislation was not framed to address particular cases but had to lay down general rules which inevitably meant that certain hard cases might fall on the wrong side of the line.

Lord Bingham also drew attention to the idiosyncratic nature of the application. Had ADI wished to counter the effect of commercial advertising bearing on an issue of public controversy, it would have had strong grounds for putting its case in the ordinary course of broadcast programmes. He also suggested that a question of compatibility might arise if ADI, or a similar organisation, had sought to broadcast an advertisement unrelated to its objects or if it was solely aimed at influencing public opinion on a matter which was a matter of public controversy. However, such a question did not arise since the proposed advertisement was consistent with ADI’s objects and ADI had made it clear that the object of the advertisement was to persuade Parliament to legislate.

Finally, Lord Bingham observed that there was no clear consensus between member States as to the manner in which to legislate for the broadcasting of political advertisements. He noted that the Court had previously widened the margin of appreciation in such instances and suggested that it might be that each State was best fitted to judge the checks and balances necessary to safeguard, consistently with Article 10, “the integrity of its own democracy”.

Lord Bingham added that he did not accept Lord Scott’s view that it was open for the domestic courts to differ from this Court in their interpretation of Convention rights since the domestic courts should, in the absence of special circumstances, follow clear and constant jurisprudence of this Court.

Lord Scott fully agreed with the reasons given by Lord Bingham but made two additional observations.

In the first place, Lord Scott expressly left open the possibility that the statutory prohibition could give rise to further Article 10 claims. He stressed the remarkable width of its application, observing that it could withhold from ADI or a similar organisation the ability to place for broadcasting advertisements with no political content (such as encouraging individuals to attend a car boot sale) or with an entirely neutral content (such as encouraging voters to vote at an election), and prevent ADI from ‘countering’ permitted commercial advertising which offended their principles. As a result, he concluded that there “may be respects in which sections 319 and 321 are incompatible with article 10”.

Secondly, he considered the relevance of the VgT judgment, concluding that it was not possible to assume from that case that the Court would disagree with the House of Lords’ judgment in the present case:

43. “...The European Court considered the VGT case in Murphy v Ireland ... and, although concluding in Murphy that the ban on religious advertising with which the case was concerned did not interfere with the applicant’s article 10 rights, did not distinguish or qualify its reasoning in the VGT case... However, ... judgments of the European Court are closely focused on the facts of particular cases that “makes it perilous to transpose the outcome of one case to another where the facts are different” (per Lord Bingham in R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307 at 342 D/E) and I would not, for my part, assume from the VGT case that the European Court would disagree with your Lordships’ conclusion that the statutory ban on the broadcasting of ADI’s “political” advertisement does not infringe ADI’s article 10 rights.

44. The result of the present appeal to this House shows, therefore, no more than the possibility of a divergence between the opinion of the European Court as to the application of article 10 in relation to the statutory prohibition of which ADI complains and the opinion of this House”

He ended by stating that, although the Court remained the final arbiter of the interpretation of Convention rights as they exist under international law, it was for the domestic courts to interpret the incorporated Convention right under domestic law, although they were still obliged to ‘take into account’ the Court’s jurisprudence.

Baroness Hale also described the rationale of the prohibition on political advertising, namely that the State did not want Government or its policies to be decided by the highest spenders.

“Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. ... We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

49. So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality...”

Baroness Hale held, in full agreement with the reasons given by Lord Bingham, that the prohibition as it operated in the case was not incompatible with ADI’s Article 10 rights. On the contrary, it was a:

“51. ... balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work...”

In coming to this conclusion, Baroness Hale doubted the application of the Court’s judgment in the VgT case:

52. Nor do I think that the decision in the VgT case should lead us to any different conclusion. All Strasbourg decisions are fact-specific. Similar though the organisations were, the advertisements were rather different: “eat less meat” is a different message from “help us to stop their suffering”. Important arguments which were given less weight in VgT were accepted in Murphy. If anything, the need to strike a fair balance between the competing interests is stronger in the political than in the religious context. Important though political speech is, the political rights of others are equally important in a democracy. The issue is whether the ban, as it applies to these facts, was proportionate to the legitimate aim of protecting the democratic rights of others. As Lord Bingham has demonstrated, Government and Parliament have recently examined with some care whether a more limited ban could be made to work and have concluded that it could not. The solution chosen has all-party support. Parliamentarians of all political persuasions take the view that the ban is necessary in this democratic society. Any court would be slow indeed to take a different view on a question such as this. There may be room for argument at the very margins of the rule, for example, in banning any advertisement of any kind by a political body, or in banning any advertisement by anyone of matters of public controversy. But that is not this case.”

Finally, Baroness Hale agreed with Lord Bingham (disagreeing with Lord Scott) that the correct interpretation of the incorporated Convention rights lay ultimately with this Court. The domestic courts should adopt a “cautious approach” where they must not “leap ahead” of the Court’s interpretations but “keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less”.

Both Lord Carswell and Lord Neuberger dismissed the appeal for the reasons given by Lord Bingham.

B.Relevant domestic law and practice

1.Background

The main source of regulation for the broadcast media is derived from the Communications Act 2003 (“the 2003 Act”). The 2003 Act replaced the existing regulators with a unified regulator for media, telecommunications and radio communications called the Office of Communications (“OFCOM”). Under the 2003 Act, OFCOM was given a wide range of statutory duties and powers in relation to broadcasting, some of which it has contracted out to bodies such as the Broadcast Committee of Advertising Practice (“BCAP”) and the Advertising Standards Authority (“ASA”).

In particular, OFCOM is required to set and enforce standards as regards the content of television and radio broadcasts. These standards are set in accordance with a number of objectives including: the protection of children (section 319(2)(a)); the prohibition of material which is likely to encourage the commission of crime or lead to disorder (section 319(2)(b)); the provision of news which is both impartial (section 319(2)(c)) and accurate (section 319(2)(d)); the protection of members of the public from offensive and harmful material (section 319(2)(f)); the prohibition of misleading, harmful or offensive advertising (section 319(2)(h)); the prohibition against undue discrimination between advertisers (section 319(2)(k)); and the prohibition of political advertising (section 319(2)(g)). These standards are enforced by OFCOM by imposing conditions on the licences it grants to commercial broadcasters and imposing sanctions on broadcasters for non-compliance with the regulatory requirements.

2.Procedure for advertising in the broadcast media

An initial process of self-regulation and informal regulation appears to take place before a broadcaster will make the final decision whether to broadcast an advertisement. This preliminary ‘pre-vetting’ process is in the interests of both the advertisers (to avoid spending money on producing advertisements which will subsequently be rejected by broadcasters for non-compliance) and the broadcasters (to avoid the risk of subsequent sanctions issued by OFCOM for breaching the requirements).

Until 31 December 2007 an informal clearance process was operated by an independent advisory body called the Broadcast Advertising Clearance Centre (“the BACC”). The BACC was funded by all the participating commercial television channels. It was common practice for advertising agencies to use this clearance process and it appears that advertisers were required to use it where it was intended to broadcast an advertisement at a national level. Since 2008 this role of BACC has been taken over by a company called Clearcast Ltd (“Clearcast”).

The screening process before the BACC comprised two stages. In the first place, the advertising agencies submitted a pre-production script for consideration by the BACC. The BACC considered whether the proposal complied with the law and codes. If so, it approved the script. If the script was not approved, the BACC drew this to the attention of the advertising agency and it might also have provided advice on how it could be amended to achieve compliance (the amended advertisement would subsequently need to be submitted for further approval). Secondly, and once the script was approved, the advertising agency would produce a final version of the advertisement which would be submitted to the BACC for final approval.

After that process, the broadcaster would decide whether to broadcast the advertisement. If the broadcaster decided to broadcast the advertisement, it would be responsible for any subsequent finding that it was in breach of any regulatory requirements. Liability for non-compliance was, and continues to be, assessed by OFCOM in accordance with the relevant laws and codes. Where OFCOM considers that there has been a potential breach, it will conduct an investigation and decide whether or not a breach has occurred. If OFCOM considers that a breach has occurred, it will issue a Decision and may impose a statutory sanction on the broadcaster.

3. Prohibition of political advertising: prior to the 2003 Act

There is no prohibition on political advertising in the non-broadcast media such as newspapers, billboards, cinema and the internet, although such advertisements are subject to certain content standards.

The prohibition on political advertising was first introduced under the Television Act 1954 (“the 1954 Act”). The 1954 Act opened the market to commercial broadcasters for the first time, who were reliant on advertising revenue for finance. Prior to this, the national public service broadcaster, the British Broadcasting Corporation (“the BBC”), had been the only radio and television broadcaster in the United Kingdom and had broadcast no paid advertising (this continues to date). The 1954 Act established a regulatory body called the Independent Television Authority which was, inter alia, to enforce certain limits on advertising by the broadcasters. The Authority was obliged by section 4 to secure that the rules in the Second Schedule to the 1954 Act were complied with in relation to any advertisements and one of these rules was that:

“No advertisement shall be permitted which is inserted by or on behalf of any body the objects whereof are wholly or mainly of a religious or political nature, and no advertisement shall be permitted which is directed towards any religious or political end or has any relation to any industrial dispute”

Subsequently, legislation has consistently preserved this prohibition.

(a) Committee on Standards in Public Life (“the Neill Committee”)

The Neill Committee included representatives from the main political parties and various experts and was set up by the Government to consider the issue of political party funding. In October 1998 it presented its Fifth Report to the Government. In Chapter 13 of the Report, the Neill Committee recommended that the ban on political advertising on television and radio should be maintained. The Committee identified the benefits of the present system in the United Kingdom as follows:

“13.7 Preventing the political parties and other politically motivated organisations from buying time on television and radio has the effect of restricting the total amount of money they can spend and also, thereby, of limiting the amounts of money they have to raise. These effects are almost universally agreed to be beneficial. Election campaigns in the United Kingdom are cheaper than in many other countries. During election campaigns, television viewers and radio listeners are not subjected to a continuous barrage of party political propaganda (much of which, if it were permitted here, would undoubtedly be negative). The parties’ dependence on wealthy donors is reduced. Political leaders are not forced to spend enormous amounts of time and energy raising money to fund television and radio campaigns. Not least of the benefits is the fact that the broadcasters provide the parties with free air-time. This means that all the major political parties, and not just the richest ones, are given an opportunity to state their views. Almost all those who have observed election campaigns in the United States regard these aspects of the UK system as superior. We believe that the present arrangements have served this country well and should remain in place.”

The Neill Committee considered that, although the prohibition on political advertising restricted the right to freedom of expression under Article 10 of the Convention, this was potentially justifiable. This conclusion was reached after considering case-law of the former Commission and the Court (X and the Association of Z v. the United Kingdom, no. 4515/70, Commission decision of 12 July 1971, Yearbook 14, p. 538 and Groppera Radio AG v. Switzerland, 28 March 1990, Series A no. 173). It concluded that:

“13.11 ... it is perfectly proper for the Government to continue to proceed on the basis that the ban on political advertising on television and radio is legally defensible. We refer in particular to the Ministry’s argument [in the X and the Association of Z v the United Kingdom case] ... justifying the outright ban on the basis of protecting the democratic right of UK citizens not to be subjected to a barrage of political propaganda at prime advertising time from the party with the richest backers. If a court were in the future to rule to the contrary, this would potentially have a dramatic effect on the funding of the political parties. If free to do so, the parties would almost certainly feel obliged to make use of the opportunity to advertise themselves (or attack their opponents) on television and radio. In the United States a high percentage of the expenditure by the political parties at election times is devoted to television advertising. It is the pressure to advertise, as much as any other factor, which generates the demand for money and hence the arms race between Democrats and Republicans...”

The Neill Committee went further suggesting that, if anything, the legislation should be reconsidered to ensure that it was sufficiently wide:

“13.12 Another possible future danger, to which reference was made in some of the evidence, is that as advances in technology bring in their train new and varied means of disseminating information (cablevision, multi-channel digital television, the Internet etc.) novel methods may be devised in an attempt to circumvent the current legal restrictions on political advertising. Vigilance will be required to prevent this happening. Existing legislation should be reviewed to ensure that its reach is sufficiently wide.”

In July 1999 the Government responded to the Neill Committee’s Report with new proposals for legislation (Cm 4413) and they agreed that the ban on political advertising should be maintained:

“9.2 The ban on paid political advertising on television and radio has been a major factor in limiting the amount of money political parties can spend on election campaigning and therefore on the amount they have to raise. As a result, the ban is supported across the political spectrum and the Government strongly endorses the Neill Committee’s recommendation that it should be maintained.

(b) Communications White Paper

In December 2000 the Government published a Communications White Paper, “A New Future for Communications”, proposing a Communications Bill to implement new controls on the broadcasting media in England and Wales including a new statutory prohibition on political advertising. There followed a period of consultation during which the Court delivered its above-cited judgment in the VgT case.

(c) Publication and subsequent scrutiny of the Draft Communications Bill

In May 2002 the Government published a Draft Communications Bill. Clause 214(2) required the OFCOM to ensure that programme services did not contain any political advertising whether it was an advertisement inserted by or on behalf of a body which was political in nature or an advertisement directed to any political end. The Explanatory Notes to the Draft Bill considered the effect of the VgT judgment, noting that that judgment had thrown some doubt on whether that ban remained compatible with the Convention. The Policy document accompanying the Draft Bill expressed the Government’s view that the provisions of the Draft Bill reflected a proper balance of both freedom of expression and the need to provide protection against certain types of broadcast material.

On 19 July 2002 the Joint Committee on Human Rights (“the JCHR”, a Parliamentary committee tasked with examining the human rights implications of proposed legislation) published a report on the Draft Bill which considered, notably, the prohibition on political advertising. The JCHR acknowledged that the ban could well be found incompatible with Article 10. However, it urged caution in reversing the prohibition given the important rationale of prohibition and the difficulty of devising a more circumscribed solution:

“63. ...While such restrictions should be proportionate to the legitimate aim of preserving balance in debate, there are wider considerations which we believe urge the utmost caution in moving from the current statutory position in the UK (where television and radio access to those seeking to advance political causes is restricted almost entirely to the highly regulated system of party political broadcasts). These wider considerations include the fear of the annexation of the democratic process by the rich and powerful, to which the Court alluded in its judgment in VgT... The risks of this will be intensified where it proves impossible to prevent concentration of cross-media ownership in one country. We are also conscious that the compromise hinted at by the Court—a more circumscribed ban applied more discriminatingly—presents a formidable challenge to put in statutory form. In particular, it is difficult to conceive of how to devise ways of allocating air time or capping expenditure in relation to a “political viewpoint” (as opposed to a political party, however that might be defined in statute)...”

While the JCHR doubted the general applicability of the above-cited judgment in the VgT case and saw some merit in waiting for the jurisprudence in this area to mature further before deciding on the appropriate legislative response, it nevertheless considered that a total ban on political advertising on radio and television was likely to be held to be incompatible with ECHR Article 10, as the Government had itself recognised in the Explanatory Notes to the draft Bill. Since restrictions short of an outright ban might be justifiable if they could be shown to advance one of the legitimate aims in Article 10(2) and to be a proportionate and non-discriminatory way of pursuing that aim as required by Article 10(2) both alone and taken together with Article 14, the JCHR recommended that the Government examine ways in which workable and Convention-compatible restrictions of this kind could be included in the Bill.  

On 25 July 2002 the Joint Committee on the Draft Communications Bill (“the JCDCB”, a Parliamentary body specially set up to consider the proposed legislation) published a report which supported the principles underlying the proposed ban but urged the Government to consider less restrictive compromises:

“301. ...The Government’s view is that there are strong grounds for re-enacting the long-standing ban on political advertising in the broadcast media, but it acknowledges that a recent decision of the European Court of Human Rights has cast doubt on the compatibility of that ban with the Convention. Professor Eric Barendt argued that a blanket ban on political advertising was not compatible with human rights and suggested that the aim could best be secured by limits on expenditure on political advertising. The Joint Committee on Human Rights has argued that a ban on the purchase of advertising time for political purposes is likely to be compatible with Convention rights. We support the principles underlying the proposed ban on political advertising ... and urge the Government to give careful consideration to methods of carrying forward that ban in ways which are not susceptible to challenge as being incompatible with Convention rights.”

On 10 October 2002 the Independent Television Commission (“the ITC”, the body having overall responsibility for commercial television at the time) wrote to the Government pleading for the maintenance of a complete ban:

“The ITC shares the Government’s principled objections to political advertising and hopes that the ban, which has been effective, will be retained. Our own assessment is that an OFCOM/broadcaster-administered scheme to ‘control’ political advertising based around tests of due impartiality and undue prominence would, fairly swiftly, collapse on the grounds of unworkability in practice...Once the absolute bar is removed, the broadcasters...would at the very least be open to challenge if they refused to accept political adverts. We are then on a slippery slope...banning named political parties is fairly ineffectual where, unlike the Mainland political parties, the political divide is on a ‘single issue’ basis, and where it is not difficult to create front organisations. The same will be true of many other emotive single issues, such as right to life. The Strasbourg decision in the Swiss case provided no clear guidance as to when a political advertisement may be subject to prohibition. So there must be at least a risk that any ‘halfway house’ would – in addition to being ineffective – still be held to be compatible.”

On 19 November 2002 the Government introduced the Communications Bill to Parliament with the prohibition on political advertising intact. The Minister introducing the Bill made a statement under section 19(1)(b) HRA 1998:

“I am unable (but only because of [the prohibition on political advertising]) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights. However, the Government nevertheless wishes the House to proceed with the Bill”.

This was the first and only time since the enactment of the HRA that the Government had adopted such a procedure. In the Explanatory Notes to the Act, the Government explained that it had been unable to make a statement of compatibility in the light of the above-cited VgT judgment.

On 20 December 2002 the JCHR released another report in which it regretted that the Government had not explained why it had decided not to include lesser restrictions in the Bill and risk incompatibility. The JCHR indicated that it had written to the Government seeking a fuller explanation of their reasons for concluding that it would be impossible to introduce transparent controls on political advertising which would be proportionate to the legitimate aim pursued and would secure a fair balance between competing rights and interests.

On 9 January 2003 the Government reiterated its belief that there was a “very strong case” that the existing prohibition was compatible with the Convention. One alternative was considered but ultimately deemed undesirable and potentially unworkable:

“With the Committee’s observations in mind, the Government has followed the Committee’s recommendation to examine ways in which workable and Convention-compatible restrictions could be included in the Bill. We have in particular considered an alternative regime based on specific prohibitions, such as banning all party political advertising, and all political advertising of any kind around the time of elections or referenda, coupled with other rules to avoid the predominance of any particular point of view, to provide visual or audible identification of political advertisements, and to control the scale of political advertising in terms both of broadcasting time and the proportion of advertising revenue that a broadcaster is permitted to derive from political advertising. We have concluded that it would be very difficult to make such a scheme workable, and that in any event it would fall significantly short of the present outright ban and allow a substantial degree of political advertising to be broadcast.”

On 13 January 2003 the Electoral Commission, an independent body established by Parliament with a statutory duty to keep under review a range of electoral and political matters, published a report entitled “Party Political Broadcasting: Report and Recommendations” which, amongst other issues, considered the ban on political advertising. The Electoral Commission considered the case for the prohibition to be persuasive:

“...there is overwhelming support among political parties and broadcasters, and from others who responded to our consultation papers, for maintaining the ban on paid advertising. A principal concern about allowing paid advertising is that access to such advertising would be restricted to parties and candidates who had access to sufficient financial resources. On the one hand, it is widely held that there would be a spending race between larger parties which they could ill afford and which would create added pressure on parties’ fundraising initiatives. There is also concern that such spending could not realistically be accommodated within the current limits on campaign expenditure. On the other hand, smaller parties are unlikely to have the resources to purchase time in the broadcast media and so would effectively have no access to such media. Under a system of paid advertising, therefore, it is likely that the electorate would receive information only from a very small number of political parties which could afford to advertise.

A further difficulty that would arise if paid political advertising were permitted would be the maintenance of political balance by the broadcasters. The current statutory requirement that ‘due impartiality is preserved on the part of the person providing the service as respects matters of political or industrial controversy or relating to current public policy’ would be hard for broadcasters to maintain if political parties were free to buy advertising time in their services.

International comparisons do little to alleviate concerns regarding the impact of paid advertising. For example, election campaigns in the USA are characterised by very heavy spending on broadcast advertising campaigns, and yet turnout in US elections is typically even lower than in the UK. In Germany, despite reduced rates for advertising, only the largest parties have the resources to take advantage of commercial advertising time.

The case for retaining the ban on paid advertising is persuasive. The ban is in the interests of the electorate and therefore the public interest. It is also in the interests of political parties and broadcasters.”

The Electoral Commission also considered that, notwithstanding the above-cited VgT judgment, the proposed prohibition could be justified under Article 10(2) of the Convention (pages 16-17 of the Report):

“...it is to be noted that the [VgT] case was concerned with paid political advertising in general and not with political party advertising within a context where the ban on paid advertising operated alongside a regime of free broadcasts which are essentially unmediated by the broadcasters. Such a system has not been the subject of a ruling either in Strasbourg or by our own courts under the Human Rights Act. The provision of free broadcasts to qualifying political parties is undoubtedly a counterbalance to the ban on paid advertising. While it does not offset the ban in its entirety, only providing access to broadcast media for a small number of political parties, we nevertheless consider it to be a significant counterbalance because it applies principally at the time of elections. Moreover, we are firmly of the view, as set out above, that the ban is in the public interest in a democratic society.

It seems to us that the UK system would survive scrutiny under the ECHR and the HRA, at least if the regime of free and unmediated broadcasts is robust.”

On 10 February 2003 the JCHR, having considered the Government’s response, indicated that it was satisfied that the introduction of the Bill without a statement of compatibility did not evince a lack of respect for human rights and was legitimate in the circumstances (Fourth Report of the Session 2002-2003, at paragraph 41).

(d) The Communications Act 2003 (“the 2003 Act”)

On 17 July 2003 the 2003 Act was enacted by Parliament without member dissent. No material amendment was made to the clauses containing the prohibition on political advertising.

Under section 319 the OFCOM is required to set standards to achieve certain objectives including the enforcement of the prohibition on political advertising:

“(1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure certain objectives.

(2) The standard objectives are

...

(g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services”

Section 321 contains the prohibition on political advertising:

“(2) For the purposes of section 329(2)(g) an advertisement contravenes the prohibition on political advertising if it is:

- an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;

- an advertisement which is directed towards a political end; or

- an advertisement which has a connection with an industrial dispute.

(3) For the purposes of this section, objects of a political nature and political ends include each of the following:

- influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;

- bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, whether in the United Kingdom or elsewhere;

- influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;

- influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;

- influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;

- influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;

- promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.”

Accordingly, the prohibition applies not only to advertisements which have a political content (section 321(2)(b)) but also to those promoted by a political body irrespective of the advertisement’s content (section 321(2)(a)).

Section 321(7) provides an exception for advertisements of a public service nature inserted by Government departments and party political campaign broadcasts. In particular, broadcasters are required to carry Party Political Broadcasts and Party Election Broadcasts made by certain political parties. The parties on whose behalf such broadcasts may be made are determined by OFCOM and only those registered with the Electoral Commission are eligible to be selected.

The prohibition on political advertising is also accompanied with a complementary requirement that broadcasters must be “impartial” in the manner in which they provide television and radio services (which are distinct from advertising broadcasts: see Article 10(1) of EC Directive 89/552/EEC). The standard objectives under section 319 include that “the news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with” (section 319(2)(c)) and “that there is no undue discrimination between advertisers who seek to have advertisements included in television” (section 319(2)(k)). Section 320 requires impartiality on the part of the service provider on “matters of political and industrial controversy” and “matters relating to current public policy”.

COMPLAINT

The applicant complains under Article 10 of the Convention that, as a result of the wide prohibition on political advertising under section 321 of the 2003 Act, it has been unjustifiably denied the opportunity to advertise on television or radio.

QUESTION TO THE PARTIES

Has there been a violation of Article 10 of the Convention? In particular, was the interference with the applicant association’s right to freedom of expression, based on sections 319 and 312 of the Communications Act 2003, “necessary in a democratic society” within the meaning of that Article (VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001‑VI; Murphy v. Ireland, no. 44179/98, ECHR 2003‑IX (extracts); and TV Vest AS and Rogaland Pensjonistparti v. Norway, no. 21132/05, 11 December 2008)?

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