Strasbourg ties itself in knots over advertising ban

23 April 2013 by Rosalind English

Animal Defenders International v  United Kingdom, April 22 2013 – read judgment

In what was a profoundly sad day for democracy, on 22 April 2013 the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.

This announcement by Animal Defenders International (ADI) describes the fate of a film from which the picture above is taken. The verdict was carried through by a majority of one – eight out of seventeen judges dissented. And the reference to “democracy” in ADI’s response to the judgment is not overblown. The general trend of the majority appears to suggest that it is legitimate, in a democracy, for a government to impose a blanket restriction on the exercise of freedom in the name of broadcasting freedom. Such an aim is not one of those listed in Article 10(2). As some of the dissenting judges pointed out,

The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all.

….A robust democracy is not helped by well-intentioned paternalism.

The advertisement,  viewable here, depicts a child in a cage, the point being that her age and emotional intelligence is equivalent to those primates we keep in similar conditions for our use and entertainment. In the final shot, a chimpanzee was in the same position as that of the girl. ADI campaigns against the use of animals in commerce, science and leisure, seeking to influence public and parliamentary opinion to that end.

The film was banned as political advertising under Section 321 of the Communications Act, the rationale for the prohibition being to preserve the integrity of the democratic process by ensuring that the broadcast media were not distorted by wealthy interests in favour of a certain political agenda.

Background Facts (based on the Court’s press release)

The applicant is an NGO whose aims include protecting animals from suffering by campaigning for changes in the law and public policy.  Given the organisation’s campaigning objectives, it is not eligible for registration as a charity.

In 2005, ADI began a campaign (‘My Mate’s a Primate’) directed against the keeping and exhibition of primates in zoos and circuses and their use in television advertising. As part of the campaign, it wished to screen the television advertisement described above.  When the Broadcast Advertising Clearance Centre refused to clear the advert, ADI appealed the decision, but was unsuccessful. The House of Lords held, in particular, that the ban on political advertising under UK law was justified by the aim of preventing the public debate from being distorted by the highest spender so that the legislative choice made in  the 2003 Act was not incompatible with Article 10 of the European Convention on Human Rights.

Decision of the Court

Both parties had the same objective of maintaining a free and pluralist debate on matters of public interest, and more generally, of contributing to the democratic process. They also both agreed that that was an entirely legitimate aim.  But ADI argued that the UK courts had not properly considered the strength of the Convention protection for political and public interest expression, and submitted that the interference was widely defined and considered that it constituted a form of prior restraint. A narrow margin of appreciation and strict scrutiny should therefore be applied for the kind of expression encapsulated in their film. While ADI accepted the necessity of the prohibition during pre-election periods, it considered disproportionate its maintenance outside those periods for social advocacy groups on matters of public interest. A prohibition distinguishing “party politics” and public interest social advocacy would be principled, feasible and – unlike the prohibition in question – proportionate. According to the applicant, a distinction had been made between the two notions in section 321(3) of the 2003 Act and other States had made this distinction. The wide definition unjustifiably restricted the ability of small campaign groups to engage with the public on matters of general interest. The case law, submitted the applicant, was in its favour; particularly the  VgT v Switzerland and TV Vest judgments as well as Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2); all were were directly applicable to its case. The advertisements and advertisers in these cases were inoffensive and the advertisers, like ADI, were not powerful.

The Court therefore had to decide whether the ban went too far in restricting the right to participate in public debate. It weighed in the balance, on the one hand, the applicant NGO’s right to impart information and ideas of general interest which the public is entitled to receive, with, on the other hand, the authorities’ desire to protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media.

It had three main considerations in making that assessment:

1. the process by which the ban had been adopted and any review by the judicial authorities;
2. the impact of the ban and any steps that might have been taken to moderate its effect; and,
3. what happens in other countries, particularly those where the Convention applies.

As far as the process was concerned, account was taken of the fact that the complex regulatory regime governing political broadcasting in the United Kingdom had been subjected to exacting and pertinent reviews and validated by both parliamentary and judicial bodies. There was an extensive pre-legislative review of the ban, which was enacted with cross-party support without any dissenting vote. The proportionality of the ban was also examined in detail in the High Court and the House of Lords. At all stages the compatibility of the measure with the Convention was considered and relevant Convention case-law analysed. The Court rejected the applicant NGO’s arguments which took issue with the rationale underlying these legislative choices, finding notably that:

• The broadcast media is influential, its impact immediate and powerful. There is no evidence that the development of the internet and social media in recent years in the United Kingdom has shifted this influence to the extent that the need for a ban specifically on broadcast media should be undermined;
• Advertisers, well aware of the advantages of broadcasted advertising, continued to be prepared to pay large sums of money for such advertisements, which went far beyond the reach of NGOs wishing to participate in the public debate;
•  The ban was relaxed in a controlled fashion for political parties – the bodies most centrally part of the democratic process – by providing them with free party political, party election and referendum campaign broadcasts;
•  Allowing a less restrictive prohibition could give rise to abuse and arbitrariness, such as wealthy bodies with agendas being fronted by social advocacy groups created for that precise purpose or creating a large number of similar interest groups, thereby accumulating advertising time. Given the complex regulatory background, this form of control could lead to uncertainty, litigation, expense and delay.

As to the impact of the ban, the Court noted that the ban only applied to advertising and the applicant NGO had access to alternative media, both broadcast (radio and television discussion programmes of a political nature or adverts on radio and television on nonpolitical matters via a charitable arm) and non-broadcast (print media, the internet and social media, demonstrations, posters and flyers). Finally, while there may be a trend away from broad prohibitions, there was no European consensus on how to regulate paid political advertising in broadcasting. A substantial variety of means are employed by the Contracting States to regulate political advertising, reflecting the wide differences in historical development, cultural diversity, political thought and democratic vision. That lack of consensus meant that the UK Government had more room for manoeuvre when deciding on such matters as restricting public interest debate. Therefore the Court considered that convincing reasons had been given for the ban on political advertising in the United Kingdom and that it had not amounted to a disproportionate interference with the applicant NGO’s right to freedom of expression. Accordingly, there had been no violation of Article 10.

Comment

As ever with judgments that carry a payload of dissenting opinions,  the most interesting material is to be found at the end of the majority ruling. First, it is not at all clear why the Court chose to overrule itself in departing from the Vgt v Switzerland judgment, an almost identical case where freedom of expression won the day. Whilst there is no rule that Strasbourg should be bound by its own precedents, it would be helpful and consistent if it departed from them in a principled manner. Those in the majority may not have liked Vgt – Judge Bratza in particular, who devotes fourteen long paragraphs in his concurring opinion to why he thought the Strasbourg judges got that case wrong – but the judgement still stands, and there are no convincing reasons given in this whole ruling why the UK challenge received such different treatment.

Five of the dissenters said just this:

We are particularly struck by the fact that when one compares the outcome in this case with the outcome in the case of VgT Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001-VI) the almost inescapable conclusion must be that an essentially identical “general prohibition” on “political advertising” – sections 321(2) and (3) of the 2003 Act in this case and sections 18 and 15 of the Federal Radio and Television Act and the Radio and Television Ordinance respectively in VgT – is not necessary in Swiss democratic society, but is proportionate and a fortiori necessary in the democratic society of the United Kingdom. We find it extremely difficult to understand this double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.

Indeed, in the UK case all television and radio broadcasters – whether national or local, and whether public service or independent – fall within the scope of the prohibition: in this sense the prohibition is even wider than that which was considered excessive in VgT.

The dissenting judges were particularly disturbed by the majority’s  view that limitation of political speech or public interest speech was in some way more “justifiable” because the restrictive measure was a general one. To be sure, where some rights are concerned, the Court adopts a deferential approach to  the national legislature – that is why challenges under the property right, Article 1 Protocol 1, are almost doomed to failure. But in regard to Articles 9 to11, and to freedom of expression in particular, “general interest” or “public interest” as such are not recognized grounds for interference in the text of the Convention.

In their view, excessive importance had been attributed by the majority to the process generating the general measure, parliamentary debate.  There can be no double standards of human rights protection on grounds of the “origin” of the interference. It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission:

The fact that a general measure was enacted in a fair and careful manner by Parliament does not alter the duty incumbent upon the Court to apply the established standards that serve for the protection of fundamental human rights. Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislaturenecessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society.

The Court’s role is to consider not the source of the measure but its proportionality. This overruling of Vgt is not without its consequences. Vgt inspired  a number of member States to repeal their general ban — a change that was effected without major difficulties. What are these states to make of the Court’s position now?  In Cossey v United Kingdom (1990) Judge Martens stated in his dissenting opinion:

A court should… overrule only if it is convinced ‘that the new doctrine is clearly the better law’. This condition is, of course based on the idea that in principle legal certainty and consistency require that a court follows its own established case-law; it should therefore overrule only when the new doctrine is clearly better than the old one.

It is telling that it took over a year for the Grand Chamber to make up its mind – the hearing was in March 2012, and the decision has only come out now. The length of both the judgment and its gestation, along with the vigour of the dissent, suggest this is a problematic ruling, to say the least. Unfortunately it is not appealable.

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