The
claimants, a registered charity, run the radio station "Premier Christian
Radio" and also publishes three Christian periodicals. It wished to
broadcast a radio advertisement inviting members of the public to contact the
station with their stories of marginalisation of Christians in the workplace.
Listeners were to be told that the advert was "seeking the most accurate
data to inform the public debate" and to "help make it a fairer
society."
In
its submission to the RACC the claimants confirmed the purpose of gathering the
information, amongst others, was "to inform, encourage and to equip
Christians to deal with such matters, to raise it with the Equalities
Commission and the Government and to inform the public and raise
awareness."
The
defendant, the RACC, refused permission to broadcast the advert on the basis
that it infringed the prohibition on political advertising.
The challenge
The
claimants challenged this decision in judicial review, seeking a declaration
that the advert was not political, or in the alternative that the prohibition
was a breach of its right to freedom of expression under Article 10 of the European
Convention. [23]
The law
Section
321(2) of the Communications Act 2003 provides, inter alia, that "an advertisement contravenes the prohibition
on political advertising if it is an advertisement which is directed towards a
political end."
Section
321(3) goes on to explain that "political ends" includes, inter alia, "bringing about changes
of the law … influencing the policies of local, regional or national
governments … influencing public opinion on a matter of public
controversy."
Article 10
The
judge, Mr Justice Silber, dealt first with the Article 10 arguments, because
success for the claimant on this article would inform the interpretation of
section 321. Article 10 states:
- Everyone
has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
- The
exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the
judiciary".
It
was common ground that Article 10 was engaged, and that the broadcast
restriction was a matter prescribed by law. The only point in argument was
whether the restriction was "necessary in a democratic society." [27]
"Necessary" implies the existence of a "pressing social
need," [28] the response to which must be "proportionate to a
legitimate aim." [29]
The
most recent UK case law on section 321 is a House of Lords decision in the case
R (Animal Defenders International) v
Secretary of State for Culture, Media and Sport [2008] UKHL 15. The
learned judge described the similarities
between ADI and the present case as
"striking," [46] and that no reason had been put before him not to
follow it.
ADI
The
legitimate aim of the legislation was "the protection of rights of others,
which included the right to be protected against the potential mischief of
partial political advertisement."
From
para 28 of ADI:
"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 not achieved if political
parties can, in proportion to their resources, buy unlimited opportunities to
advertise in the most effective media, so that elections become little more
than an auction. Nor is it 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 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."
The
pressing social need was that "the broadcast media is more pervasive and
potent than any other form of media … and no fair and workable compromise
solution could be found which would address the problem of partial political
advertising." [39]
Other
relevant factors in ADI were that
parliament had recently addressed the matter and not come up with a workable alternative
itself, [40] and the court should therefore give "great weight" to
the opinion of parliament. Furthermore other options for advertising through
newspapers, magazines, direct mail shots and billboards were available. [41]
It
is notable that the decision in ADI
was unanimous. [42] However, it is under challenge and would imminently be
heard in the Grand Chamber of the European Court of Human Rights. Nevertheless,
in the meantime the High Court is bound by the decision of the House of Lords
in ADI. [29] The Article 10 argument
therefore failed.
Was the advertisement
political?
The
claimant argued firstly that the court should consider the strict wording of the
advert itself, and secondly that the motive or objective of the advertiser was
irrelevant. [55] The advertisement was merely a "statement of fact"
with the use to which any information gleaned stated in "the blandest
terms." [56]
The
defendant argued that the advertisement fell "fair and square" within
the prohibition, and that the words "directed towards" in section 321
include the intention of the advertiser. In response the claimants
counter-argued that this amounted to re-writing the legislation to prohibit
"an advertisement the motive of which is directed towards a
political end." [57]
The
learned judge dismissed the advertiser's motive as irrelevant for three
reasons: [58]
(i)
the purpose of the prohibition is to protect the public "irrespective of
the views or motives of the advertiser."
(ii)
otherwise if an advertiser could demonstrate he lacked the prohibited intent,
an advertisement might have to be cleared for broadcast that otherwise would be
refused permission.
(iii)
the legislation is silent on the matter of advertiser's intent.
As
it happens, the judge was satisfied in any event that the advertisement, by
virtue of the words, "to inform the public debate" and "to help
make a fairer society," was indeed directed to making changes to society.
The application for judicial review would therefore be dismissed.
Comment
As
explored elsewhere in the judgment, the European Court's view on political
advertising is in a state of flux. ADI
was due to be heard in the Grand Chamber in March 2012 and the outcome is
awaited.
One
notable characteristic of the European Court is that it has tended to set its
face against blanket bans on matters judged on the test of proportionality. For
example, the blanket ban on prisoners voting (Hirst no 2 v UK [2005] ECHR 681)
was considered a disproportionate measure.
However,
recent case law suggests that the European Court is more amenable to following
UK jurisprudence when it has been fully considered in the House of
Lords/Supreme Court. Additionally, the prohibition on political broadcast
advertising was given recent and due consideration in parliament while debating
the Communications Act, whereas the lack of such parliamentary consideration
was criticised in the Hirst decision.
There
is therefore every reason for the European Court to uphold the UK position in ADI, whether as a matter of reasoned
principle or by way of the 'margin of appreciation.'
The
ban on political broadcast advertising goes against the grain of freedom of
speech, and against the normal presumption that open and free argument of
issues will tend towards identifying the best outcomes.
Nevertheless,
it is a necessary evil, for the simple reason that it is so much more amenable to
abuse. As the House of Lords ruled in ADI,
the broadcast media is much more pervasive, and might I add persuasive,
(particularly in visual format), that notions of "right" and
"truth", at least in a received sense, will indeed be available to
the highest bidder.
Slippery
slope arguments aren't generally the most attractive; it would be much better
to have a set of principled but permissive rules rather than a blanket ban, and
the facts of this case appear innocuous enough. Nevertheless, the dangers in this
area are manifest and the consequences serious – I cite merely the current and
perennial arguments over political party funding.
Neither
parliament nor the courts have been able to come up with a better solution than
to treat everyone the same - which isn't so unprincipled a solution after all.
It would, of course, be very different if other forms of media were not
available.
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