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(This Article was first published in Entertainment Law Review Vol. 19 Issue 6)
R (on the application of Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] UKHL 15 (12 March 2008). The House of Lords has held that the prohibition on political advertising on television and radio under s 321(2) of the Communications Act 2003 is not incompatible with Article 10 of the European Convention on Human Rights it is not an unjustified restraint on the right to freedom of political expression.
In reaching this conclusion Lord Scott appeared only slightly more perturbed than Lord Bingham, who gave the lead judgment, by any possible conflict with the European Court of Human Rights’ (“ECHR”) decision in VgT Verein gegen Tierfabriken v Switzerland (2001) 34 EHRR 159. In that earlier case the ECHR held, on similar facts, that a ban on political advertising on television under Swiss law was not necessary in a democratic society and so violated Article 10. Whilst the Law Lords approach appeared to call into question the authority of judgments of the ECHR, Lord Scott resolved the issue by declaring that, although very important, such decisions are not binding on domestic courts.
Background
The case was on appeal from a Divisional Court decision of Auld LJ and Ouseley J refusing an application by Animal Defenders International (ADI) for a declaration under s 4 of the Human Rights Act 1998 that s 321(2) of the Communications Act (“the Act”)was incompatible with Article 10 of the Convention as imposing an unjustified restraint on the right to freedom of political expression.
The ADI is a non-profit company whose aims include the suppression, by lawful means, of all forms of cruelty to animals, the alleviation of suffering and the conservation and protection of animals and their environment. In 2005, the ADI launched a campaign entitled “My Mate’s a Primate” with the object of directing public attention towards the use of primates by humans as a threat to the survival of primates. The campaign was to include newspaper advertising, direct mail shots, and also an advertisement on television. The proposed television ad was refused clearance by the Broadcast Advertising Clearance Centre on the basis that its transmission would breach the prohibition on political advertising under the Act. The ADI applied for judicial review of the BACC decision.
Under s 319 of the 2003 Act, Ofcom is required to set standards to achieve a number of objectives, including the objective that news is reported with due impartiality and accuracy and, at subsection (2)(g), that advertising which contravenes the prohibition on political advertising set out in s 321(2) is not included in television or radio services. Section 321(2) provides that for the purposes of s 319(2)(g) an advertisement contravenes that prohibition on political advertising if it is:
a) An advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
b) An advertisement which is directed towards a political end; or
c) An advertisement which has a connection with an industrial dispute.
Thus an advertisement may fall foul of the prohibition either because of the character of the advertiser or because of the content and character of the advertisement. Section 321(3) contains a non-exhaustive list of “objects of a political nature and political ends”.
The appeal
On appeal, the ADI contended that the ban as it applied to bodies such as itself which were not associated with any political party but were engaged in “social advocacy” was too wide. This, they argued, was demonstrated by the fact that it would prohibit a wholly non-political ad for anybody whose objects were wholly or mainly of a political nature and by virtue of s 321(3)(f) “to any advert seeking to influence public opinion on any matter which, in the UK, was a matter of public controversy”. It was common ground that ss 319 and 321 of the Act constituted an interference with the ADI’s exercise of its right to free speech, and also that Article 10 was engaged. It was accepted that the ban was a restriction prescribed by law and had the legitimate aim of protecting the rights of others, namely their democratic rights. The only issue was whether the restriction was necessary in a democratic society. In this respect it was agreed that for a restriction to be necessary there must be a pressing social need for it, and it was for the Member State which imposed the restriction to justify it.
Decision
Lord Bingham held as follows. The fundamental rationale of the democratic process was that if competing views, opinions and policies were publicly debated and exposed to public scrutiny the good would, over time, drive out the bad and the true prevail over the false. To properly implement this rationale it was highly desirable that the playing field of debate should be level, so far as practicable. It was the duty of broadcasters to achieve the objective of a level playing filed in an impartial way by presenting balanced programmes in which all lawful views might be ventilated.
It would not be achieved if political parties could buy unlimited opportunities to advertise in the most effective media. Nor was it achieved if well-financed organisations which were not political parties were able to use the power of the purse to give enhanced prominence to views which might be true or false, attractive to progressive minds or unattractive, beneficial or injurious. A restriction on the exercise of the right to free speech might properly be designed to protect the rights of others including the right to be protected against the potential mischief of partial political advertising.
In Lord Bingham’s view, the full strength of this argument was not deployed in the VgT case. The question why there was a pressing social need for a blanket ban of political advertising specifically on television and radio when no such prohibition applied to the press, cinema and other media, could be answered by the fact of the greater immediacy and impact of television and radio advertising. Broadcast media was more pervasive and potent than any other media.
Lord Bingham acknowledged that since, in principle, no restriction may be wider than is necessary to promote the legitimate object which it exists to serve, it was necessary to ask whether any restriction on political advertising less absolute than that under the Act would suffice, for example by regulating political advertising by time or frequency or expenditure or by the nature and quality of the adverts in question. In Lord Bingham’s view, it was unnecessary to explore this in detail since, amongst other things, it was difficult to see how any system of rationing or capping could be devised which could not be circumvented, as, for instance, by the formation of small and apparently independent groups pursuing very similar political objects.
For these reasons and also on the basis that the judgment of Parliament on an issue such as this should not be lightly overridden, Lord Bingham concluded that the ban on political advertising in ss 319 and 321 was necessary in a democratic society and so compatible with the Convention, and that the appeal should be dismissed accordingly.
Comment
Lord Bingham conceded that a general rule of this nature meant drawing a line which in turn inevitably meant that “hard cases will arise falling on the wrong side of it”, but in his Lordship’s view that should not be held to invalidate the rule. Lord Scott took a slightly different line. His view was that in dismissing the appeal they should not be taken to be “franking sections 319 and 321 against any possible attack made on Article 10 grounds”. Lord Scott considered that the width of the statutory prohibition was “remarkable” in that it would appear to withhold from ADI, or from any organisation whose objects were wholly or mainly to bring about changes in the law, the ability to place for broadcasting an ad with no political content whatever or with entirely neutral political content, such as merely encouraging voters to vote at an election. Lord Scott’s view was that there may be respects in which ss 319 and 321 are incompatible with Article 10, but the court’s discretion to make a declaration of incompatibility under s 4 of the 1998 Act should not be exercised unless the circumstances of the case had a real as opposed to hypothetical effect on a Convention right. As to any inconsistency with the ECHR ‘s decision in VgT, Lord Scott commented that judgments of the ECHR are closely focused on the facts of particular cases and that the current case showed no more than a possibility of a divergence of opinion between the ECHR and the House of Lords, a possibility that was contemplated implicitly by the 1998 Act. In other words, whilst s 2 of the 1998 Act required any domestic court to take account of decisions of the ECHR, those decisions were considered to be “very important” rather than binding on domestic courts.
Nicola McCormick
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