Ban on paid political advertising not a violation of the right to freedom of expression

Animal Defenders International v The United Kingdom, [2013] ECHR (Application no. 48876/08) (22 April 2013)

Summary

The Grand Chamber of the European Court of Human Rights held, by a majority of nine to eight, that the long-standing ban on paid political advertising on television and radio in the United Kingdom does not contravene the right to freedom of expression in article 10 of the European Convention on Human Rights.

Background and facts

The applicant, Animal Defenders International, is a non-governmental organisation based in London that campaigns against the use of animals in commerce, science and leisure, and seeks to achieve changes in the law and to influence public and parliamentary opinion on this issue.

In 2005, Animal Defenders began a campaign called My Mate’s a Primate, which condemned the keeping and exhibition of primates and their use in advertising. As part of this campaign, Animal Defenders planned to broadcast a 20 second television advertisement in the UK. This advertisement began by showing a young girl in an animal cage emerging from the shadows. This was followed by the following messages: “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”. The advertisement concluded by showing a chimpanzee in the same position as the young girl. An advertisement from the same campaign can be viewed here.

The advertisement was submitted to the Broadcast Advertising Clearance Centre which, on 5 April 2005, declined to clear it on the ground that Animal Defenders was an organisation “wholly or mainly of a political nature” and thus broadcast of the advertisement was prohibited by section 321(2) of the Communications Act 2003 (UK). Such a prohibition has existed since the beginning of paid advertising on radio and television in theUK.

On 19 October 2005, Animal Defenders issued proceedings in the High Court of England and Wales seeking a declaration under the Human Rights Act 1998 (UK) that section 321(2) of the Communications Act was incompatible with article 10 of the Convention regarding freedom of expression. On 4 December 2006, the High Court refused to issue a declaration of incompatibility. On 12 March 2008, the House of Lords unanimously dismissed Animal Defenders’ appeal.

Following this, Animal Defenders took the matter to the European Court of Human Rights. On 29 November 2011 the Chamber of the European Court referred the case to the Grand Chamber consisting of 17 judges. Hearing took place on 7 March 2012 and judgment was handed down on 22 April 2013.

Decision

In assessing whether or not the ban infringed article 10 of the Convention, argument focussed on the qualification in article 10(2) that freedom of expression is subject to such restrictions as “are necessary in a democratic society”.

Animal Defenders’ argument was that the ban was too broad to be proportionate in a democratic society. The key points made to support this argument were that:

• the ban was too widely defined in that it applied at all times, did not distinguish public interest advocacy from “party politics” and favoured established political parties and well-funded bodies;
• the ban unjustifiably applied to TV and radio broadcasts and not to other forms of equally persuasive media;
• it had not been proven that without the prohibition there was a risk of compromising the impartiality of broadcasting or the integrity of the other mechanisms said to ensure the impartiality of broadcasting; and
• the evidence showed that concerns about less restrictive regulation were exaggerated and unproven.

The arguments of the UK government in response were that the interference with freedom of speech was proportionate as:

• the ban targeted only the most pervasive and persuasive media, but did not regulate other media such as online or newspaper advertising;
• the ban only covered paid advertising;
• without the ban, given the cost of advertising in broadcast media, many NGOs would be disadvantaged when opposing the arguments of commercial bodies, as the advertising budget of the commercial sector for one day exceeds that of the NGO sector for an entire year;
• removing the ban would undermine theUKgovernment’s scheme of broadcasting impartiality; and
• the provision of regulated, free, political advertising negated some of the undesirable impact of the ban.

Additionally, the UK government argued that the European Court should afford a wide margin of appreciation and be slow to second guess the ban, as it had been carefully considered by the democratically elected UK parliament and passed without dissent. It had also been affirmed by the UK’s domestic courts.

The judgment was issued by seven judges (with whom Judge Bratza concurred adding some reasons of his own). Firstly, the European Court found that the margin of appreciation was, in principle, quite narrow, given the importance of debate on matters of public interest and of a free press.

The Court held that the prohibition was proportionate to the legitimate aim of avoiding the distortion of debate on matters of public interest by unequal access to influential media by financially powerful bodies. The key bases for this finding were that:

• the question is not whether less restrictive means could be employed to achieve the desired result or whether the UK government could prove that without the ban, the desired result could not be achieved, but rather whether the UK government acted within the margin of appreciation afforded to it;
• considerable weight should be given to the fact that the issue had been considered by both parliament and the judiciary in theUK;
• importantly, the ban only applied to paid advertisements and only on TV and radio – forms of media which, the Court felt, remain the most influential despite the advent of the internet and social media;
• the cost of broadcast advertising is out of the reach of most NGOs;
• the allowance for free, regulated, political advertising mitigates, to some degree, the interference with freedom of speech; and
• it was reasonable for theUKgovernment to fear that less restrictive alternatives would not sufficiently achieve the desired result, given the increased risk of circumvention and difficulty of enforcement.

The judgment concluded by noting that it remained open to Animal Defenders to disseminate their message:

• as unpaid program content on TV and radio;
• as paid advertising in non-broadcast media such as newspapers, magazines and online;
• as paid non-political advertising through a non-charitable arm, which, on the evidence, did not appear to be prohibitively expensive to establish; and
• by way of social media, flyers and public demonstrations.

Two dissenting opinions were given, with the crux of the dissent being that, in order to impose a general prohibition such as this, it must be shown that there is a real danger that a legitimately undesirable end cannot be avoided by taking less stringent measures. The dissenting judges did not believe the UK government had established this. The first dissenting opinion went further holding that prohibiting political speech in this way, however well-intentioned, is unjustifiably paternalistic and antithetical to the democratic ideal of freedom of expression.

Commentary

The facts of this case are reminiscent of one of the two cases in which the High Court of Australia first recognised the implied freedom of political communication in the Australian Constitution, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. In that case, the High Court found that legislation designed to prohibit paid political advertising during an election period and replace it with free, regulated, political advertising was invalid because it breached the implied freedom of political communication.

The restrictions on the broadcast of political advertising in Australiatoday are largely set out in the Broadcasting Services Act 1992 (Cth). This legislation requires that during an election period (the period commencing 33 days before the polling date), radio and TV broadcasters who broadcast election material “must give reasonable opportunities for the broadcasting of election matter to all political parties contesting the election”. Additionally, there is a complete blackout imposed on election advertisements on radio and TV from the end of the Wednesday prior to polling day (the Saturday) until the close of the poll. Finally, broadcasters are required to broadcast identifying particulars along with political matter including the name of the person or party who authorised the broadcast.

Few countries today impose an outright ban on the broadcast of paid political advertisements. That said, dissent is often expressed in Australia, and even more so in the US, about the time and effort that goes into raising money in order to pay for advertising, rather than into campaigning proper.

It seems opinion is, like the European Court, closely divided on whether prohibiting the broadcast of paid political advertisements serves to support or hinder democratic public debate.

This decision is available online at: http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-119244.

Ian Ranson, Law Graduate, King & Wood Mallesons Human Rights Law Group