What’s all the fuss about the Lord’s prayer? Emma-Louise Fenelon

30 November 2015 by Guest Contributor

“I find your lack of faith disturbing” (Darth Vader)

Digital Cinema Media (DCM), the media agency that supplies adverts to 80% of UK cinemas caused consternation last week when it announced its refusal to show a 60-second advert by the Church of England encouraging people to pray. The ad would have been guaranteed a sizable audience had it been permitted to air as planned before the upcoming Star Wars: the Force Awakens, advance ticket sales for which have broken all known records.

DCM said the decision was based on concerns that the ad risked upsetting or offending audiences and ran contrary to their policy not to show ads that in “the reasonable opinion of DCM constitute Political or Religious Advertising.”

David Cameron, Richard Dawkins, Carrie Fisher and Stephen Fry were among the chorus of voices to lambast the decision. Jim Shannon, Democratic Unionist MP put down an early day motion for debate in the House of Commons urging for “the ban be reconsidered and overturned”. The motion is currently supported by the signatures of 14 MPs.

In response to the controversy, DCM announced that they believe a “clear neutral stance remains the fairest policy for all, and allows DCM to treat all political and religious beliefs equally.” Steven Slack, the Church’s legal adviser warned the decision gave rise to the possibility of legal proceedings.

The Equality and Human Rights Commission weighed in with a statement indicating their concern about blanket bans on religious advertising. The Commission’s opinion concluded that “there is nothing in law that prevents Christian organisations promoting their faith through adverts.” The statement did little, however, to answer the trickier question about whether there is anything that legally requires DCM to show the ad and whether the Church of England may have a cause of action.

So where does the law stand?

The Equality Act 2010 outlaws discrimination on the basis of nine protected characteristics including religion or belief. It applies to any business that provides goods, facilities or services to members of the public, such as a cinema.

Section 13 provides that a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 23 requires the Claimant to be compared to an actual or hypothetical comparator who is in not materially different circumstances from the Claimant. To prove discrimination under the Equality Act, therefore, the Church of England would have to show that compared to other religious organisations, they were being treated less favourably.

Equality expert (the late) Sir Bob Hepple suggested in his book on the law and equality that

It is a defence to show that the comparator would have been treated equally badly. For example, an employer who denies a fair procedure to a Black employee may escape a claim for racial discrimination if it shown that a White employee would have been treated the same way (the so-called ‘bastard to everyone’ defence). (Equality: The Legal Framework, Bob Hepple, 2nd Ed., page 69)

Such reasoning implies that a challenge to DCM’s decision is likely to be unsuccessful. DCM, by refusing to air adverts they reasonably regard as “Political or Religious Advertising” would be treating all religious organisations the same way and therefore not discriminating on the basis of religion or belief.

The case of R (on the application of Core Issues Trust) v Transport for London [2014] EWCA Civ 34 is worth considering, despite not being strictly relevant to discrimination claims under the Equality Act. The subject of that case, well known to Londoners, was an attempt by Core Issues Trust, a Christian organisation whose objectives include “sexual re-orientation” to place an advert on London buses. The ad stated “NOT GAY! EX-GAY, POST-GAY AND PROUD, GET OVER IT” and was in response to one by Stonewall, an LGBT rights organisation, which had stated “SOME PEOPLE ARE GAY, GET OVER IT!”

In that case, it was argued by Core Issues Trust that because advertising space on London buses is sold on a commercial basis, there is a “right to buy” and there should be no restriction on content. It relied on a Canadian Supreme Court judgment concerning a challenge to the transit authority’s advertising policies, which permitted commercial but not political advertising on public transit vehicles. The Canadian Supreme Court found that a blanket ban on political advertising did not constitute a “minimal impairment” of freedom of expression and it was therefore not permitted under the Canadian Charter of Rights and Freedoms.

The Canadian Courts have adopted a more liberal approach to freedom of expression than the European Court of Human Rights or the UK courts and have applied concepts of “public place” and “minimal impairment” which are not reflected in the Strasbourg or our domestic jurisprudence where the protection afforded to freedom of expression is determined by applying a proportionality test.

In dismissing the argument of Core Issues Trust regarding the “right to buy” commercial advertising space, the Court of Appeal relied on jurisprudence of the ECtHR. Lord Dyson MR regarded this as having clearly established that it is permissible for public bodies to restrict advertising on the basis of content, provided that any restrictions are prescribed by law and necessary in pursuit of a legitimate aim.

In Murphy v Ireland [2004] 38 EHRR 13, the court upheld a ban on a radio advertisement inviting listeners to a series of meetings about evidence of the resurrection. In that case the ECtHR said that the exercise of the right of freedom of expression carried with it duties and responsibilities “including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane”. In Animal Defenders International v UK [2013] 57 EHRR 21, the Court controversially upheld the UK’s ban on political advertising for television and radio, departing from its own case law. Finally, in Mouvement Raelien Suisse v Switzerland [2013] 56 EHRR 14, the Grand Chamber stated, “individuals do not have an unconditional or unlimited right to the extended use of public space, especially in relation to facilities intended for advertising or information campaigns”.

Conclusion

Admittedly, the Convention is concerned with the actions of public authorities, and therefore not those of privately owned cinemas. However, any suggestion by the Church of England that there is a “right to buy” commercial advertising space in cinemas is likely to be met with similar reasoning to that employed by the Court of Appeal. And any claim brought under the Equality Act will have to confront the obstacles outlined above.

At last count, the advert had been seen over half a million times, demonstrating that refusal to air it in cinemas did not prevent the Church of England advancing its views in other ways. Should the Church of England pursue litigation nonetheless, any resulting judgment will be required reading for those interested in equality and free speech.

Emma Fenelon is a Pupil Barrister at 1 Crown Office Row