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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Animal Defenders International, R (on the application of) v Secretary of State for Culture Media & Sport [2006] EWHC 3069 (Admin) (04 December 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/3069.html Cite as: [2007] UKHRR 310, [2007] HRLR 9, [2007] EMLR 6, [2007] ACD 46, [2006] EWHC 3069 (Admin), (2007) HRLR 9, [2007] EMLR 158 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
-and-
THE HONOURABLE MR JUSTICE OUSELEY
____________________
THE QUEEN ON THE APPLICATION OF ![]() ![]() |
Claimant |
|
- and - |
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THE SECRETARY OF STATE FOR CULTURE MEDIA AND SPORT |
Defendant |
____________________
WordWave International
Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Pannick QC & Mr Martin Chamberlain (instructed by Treasury Solicitor) for the Defendant
____________________
Crown Copyright ©
Lord Justice Auld:
Introduction
" we only carry advertising for registered charities and this affords the stations some protection that the activities of the charity will not breach Section 4 of the ASA Code by becoming wholly or mainly political during the life of the commercial. This is because the Charity Commission only registers charities that can demonstrate that they are not wholly or mainly political and monitors their activities. Even though your proposed script did not ask for donations per se and offered a product for sale, the income generated and its subsequent use would not be regulated by any authority and the stations would be exposed to the risk that they would be carrying an unacceptable advertiser. This is not say that we suspect the intentions of this advertiser, but rather that it is a dangerous precedent to set. Likewise if any advertiser was to use income generated from a product advertised in a commercial for wholly or mainly political means it would be unacceptable under the code."
The BACC subsequently confirmed that decision.
The issue
" We are conscious that - a more circumscribed ban applied more discriminatingly presents a formidable challenge to put in statutory form. In particular, it is difficult to conceive of how to devise ways of allocating air time or capping expenditure in relation to 'a political viewpoint' as opposed to a political party, however that might be defined in statute. "
The 2003 Act
"(2) (c) that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with;
(k) that there is no undue discrimination between advertisers who seek to have advertisements included in television; "
Section 320, under the side-heading "Special impartiality requirements", requires impartiality on the part of the service provider on:
"(2) (a) matters of political or industrial controversy; and
(b) matters relating to current public policy."
(2) "For the purposes of section 319(2)(g) an advertisement contravenes the 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.
(3) For the purposes of this section objects of a political nature and political ends include each of the following
(a) influencing the outcome of elections or referendums whether in the UK or elsewhere;
(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;
(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;
(e) influencing the policies or decisions of persons on whom functions are conferred by or underinternational
agreements;
(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;
(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends."
Article 10
"(1) 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.
(2) 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."
" if the ban did not exist, less well endowed parties or movement would have great difficulty in maintaining their point of view in the face of massive purchase of advertising time by their opponents."
Three cases with particular bearing on the application: VGT, ProLife and Murphy
VGT
"66. The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. As set forth in Article 10, this freedom is subject to exceptions. Such exceptions must, however, be construed strictly, and the need for any restrictions must be established convincingly, particularly where the nature of the speech is political rather than commercial.
71 .in the present case the extent of the margin of appreciation is reduced, since what is at stake is not a given individual's purely 'commercial interests', but his participation in a debate affecting the general interest.
72. The Court will consequently carefully examine whether the measures in issue were proportionate to the aim pursued. In that regard, it must balance the applicant association's freedom of expression, on the one hand, with the reasons adduced by the Swiss authorities for the prohibition of political advertising, on the other, namely to protect public opinion from pressures of powerful financial groups and from undue commercial influence; to provide for a certain equality of opportunity between different forces of society; to ensure the independence of the broadcasters in editorial matters from powerful sponsors; and to support the press.
73. It is true that powerful financial groups can obtain competitive advantages in the areas of commercial advertising and may thereby exercise pressure on, and eventually curtail the freedom of, the radio and television stations broadcasting the commercials. Such situations undermine the fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular, where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive. Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism of which the State is the ultimate guarantor. This observation is especially valid in relation to audio-visual media, whose programmes are often broadcast very widely.
74. In the present case, the contested measure, namely the prohibition of political advertising , was applied only to radio and television broadcasts, and not to other media such as the press. The Federal Court explained in this respect that television had a stronger effect on the public on account of its dissemination and immediacy. In the Court's opinion, however, while the domestic authorities may have had valid reasons for this differential treatment, a prohibition of political advertising which applies only to certain media, and not to others, does not appear to be of a particularly pressing nature.
75. Moreover, it has not been argued that the applicant association itself constituted a powerful financial group which, with its proposed commercial, aimed at endangering the independence of the broadcaster; at unduly influencing public opinion; or at endangering the equality of opportunity between the different forces of society. Indeed, rather than abusing a competitive advantage, all the applicant association intended to do with its commercial was to participate in an ongoing general debate onanimal
protection and the rearing of
animals
. The Court cannot exclude that a prohibition of 'political advertising' may be compatible with the requirements of Article 10 of the Convention in certain situations. Nevertheless, the reasons must be 'relevant' and 'sufficient' in respect of the particular interference with the rights under Article 10. In the present case, the Federal Court in its judgment , discussed at length the reasons in general which justified a prohibition of 'political advertising'. In the Court's opinion, however, the domestic authorities have not demonstrated in a 'relevant and sufficient' manner why the grounds generally advanced in support of the prohibition of political advertising, also served to justify the interference in the particular circumstances of the applicant association's case. [my emphasis]
78. The Court recalls that its judgment is essentially declaratory. Its task is to determine whether the Contacting States have achieved the result called for by the Convention. Various possibilities are conceivable as regards the organisation of broadcasting television commercials; the Swiss authorities have entrusted the responsibility in respect of national programmes to one sole private company. It is not the Court's task to indicate which means a State should utilities in order to perform its obligations to the Convention. [my emphasis]
79. In the light of the foregoing, the measure in issue cannot be considered as 'necessary in a democratic society'. "
ProLife
"... the court's task is, not to substitute its own view for that of the broadcasters, but to review their decision with an intensity appropriate to all the circumstances of the case. Here the relevant factors include the following. (1) There is no challenge to the statutory (or in the case of the BBC quasi-statutory) requirement for exclusion of what I have (as shorthand) called 'offensive material'. That requirement is expressed in imprecise terms which call for a value judgment to be made. The challenge is to the value judgment made by the broadcasters. (2) Their remit was limited (for reasons not inimical to free speech) to a single decision either to accept or reject the programme presented to them. In making that decision the broadcasters were bound (in accordance with their respective codes) to have regard to the special power and pervasiveness of television. "
"64 . As a matter of common sense, the association's complaint was not without merit. The Swiss government argued that no one had a right to television time and that the primary right under article 10 was not engaged. But the court took the view that for practical purposes it was. Prima facie, anyone was entitled to whatever television time for commercials he could afford to buy. Therefore a refusal to allow anyone a commercial on the grounds of the content of his broadcast was a discrimination which had to be justified. The court decided that was no sufficient justification for discriminating against political advertising 'in the particular circumstances of the applicant association's case' This is a guarded, if somewhat opaque decision. The court expressly said that such a prohibition might be compatible with article 10 'in certain situations. "
"128. the Court found an infringement of article 10, mainly (it seems) because of the monopoly positions enjoyed in Switzerland by a single public advertising corporation and a single company controlling television commercials. The judgment does not, with respect, give full or clear reasons for what seems to be a far-reaching conclusion. It has already had one striking consequence, that is that the Communications Bill now before Parliament has not been certified as complying with the Convention because of a single clause relating to political advertising.
129. The true significance of the VGT case is therefore rather imponderable. But at least the general principle stated by the Commission the much earlier case of X and the Association of Z v United Kingdom [1971] 38 CD 86 still holds good, that although no private citizen or organisation has any unfettered right to access to broadcasting facilities 'the denial of broadcasting time to one or more specific groups or persons may, in particular circumstances, raise an issue under article 10 alone or in conjunction with article 14 of the Convention'.
130. I do not think it is necessary, in order to dispose of this appeal, to try to go further into the general question of how article 10 is engaged in the field of broadcasts with a political content. But it is worth noting that the cases do reveal a degree of paradox. On the one hand, political discussion or debate is, of all forms of communication protected by article 10, accorded particular importance: see for instance Bowman But on the other hand, there may be good democratic reasons for imposing special restrictions, especially to prevent those with deep pockets from exercising too much influence through the most powerful and intrusive means of communication."
" Article 10 does not entitle ProLife Alliance or anyone else to make free television broadcasts. Article 10 confers no such right. But that by no means exhausts the application of Article 10 in this context. In this context the principle underlying Article 10 requires that access to an important public medium of communication should not be refused on discriminatory, arbitrary or unreasonable conditions. Nor should access be granted subject to discriminatory, arbitrary or unreasonable conditions. "
Discrimination is particularly relevant where the rationale for the prohibition on political broadcasting is to prevent domination or distortion of the democratic process by those wealthy enough to secure access to powerful broadcasting media, even though the opposition may be driven by commercial rather than political motives.
Murphy
"66. the Court has consistently held that the Contracting States enjoy a certain but not unlimited margin of appreciation.
67. In this latter respect, there is little scope under Art. 10(2) for restrictions on political speech or on debate of questions of public interest. However, a wider margin of interest is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal conviction within the sphere of morals or, especially, religion.
The Court therefore observes that it is this margin of appreciation which distinguishes the present case from VGT .. In the latter case, the Court considered that the advertisement prohibited concerned a matter of public interest to which a reduced margin of appreciation applied." [my emphases]
"69. the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference. The Court has acknowledged that account must be taken of the fact that the audio-visual media have a more immediate and powerful effect than the print media.
74. The prohibition concerned only the audio-visual media. The State was, in the Court's view, entitled to be particularly wary of the potential for offence in the broadcasting context, such media being accepted by this Court as having a more immediate, invasive and powerful impact, including on the passive recipient. He was consequently free to advertise the same matter in any of the print media (including local and national newspapers) and during public meetings and other assemblies.
75. the Court considers persuasive the Government's argument that a complete or partial relaxation of the impugned prohibition would sit uneasily with the nature and level of the religious sensitivities and with the principle of neutrality in the broadcast media.
76. In the first place, the Court would accept that a provision which allowed the filtering by the State or any organ designated by it, on a case by case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently. There is, in this context, some force in the Government's argument that the exclusion of all religious groupings from broadcasting advertisements generates less discomfort than any filtering of the amount and content of such expression by such groupings.
78. Secondly, the Court considers it reasonable for the State to consider it likely that even a limited freedom to advertise would benefit a dominant religion more than those religions with significantly less adherents and resources. Such a result would jar with the objective of promoting neutrality in broadcasting and, in particular, of ensuring a 'level playing field' for all religions in the medium considered to have the most powerful impact."
" The Directive recognises the importance which individual Member States attach to the regulation of broadcast advertising in that it provides that a Member State may impose stricter regulation on broadcasters operating under its jurisdiction than is provided for in the Directive."
Secondly, there is the Court's reference in paragraph 67 of its judgment (see paragraph 38 above) to the narrowness of that margin of appreciation in the context of restriction of freedom of expression of political views or of other matters of public interest. Thirdly, the Court accepted the justification for singling out broadcasting media for particular regulation or restriction because of the greater potency it perceived it to have over other media forms (see paragraph 39 above). And, fourthly, the European Court approached its task in the same way it had done in VGT (see paragraphs 29 and 30 above), by reference to the effect of the prohibition in the particular circumstances of the case:
"72. The question before the Court is therefore whether a prohibition of a certain type (advertising) of expression (religious) through a particular means (the broadcast media) can be justifiably prohibited in the particular circumstances of the case."
As I have said in relation to the VGT decision, the task for this Court in determining whether a United Kingdom statute is incompatible with an ECHR obligation is broader and not so fact sensitive, otherwise the compatibility with the ECHR of our legislation would be vulnerable to constant challenge and re-challenge according to the individual circumstances of each case. In short, on a compatibility challenge, this Court has often to paint with a broader brush than the Strasbourg Court another way of expressing "the bright-line" approach.
ADI's case
"It is said that the restrictions leave unimpaired the access of potential participants to other modes of communication with the electorate. The statement serves only to underscore the magnitude of the deprivation inflicted on those who are excluded from access to the electronic media. They must make do with other modes of communication which do not have the same striking impact "
" freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention."
" there is little scope under Art 10(2) of the Convention for restrictions on political speech or on debate of questions of public interest."
The Secretary of State's case
"In principle [political speech] should not be confined to communications which directly concern the conduct of government or which seek to influence electoral choices. That would be much too narrow. It would privilege speech on matters raised by political parties and candidates. The public is entitled to discuss a wide range of topics, irrespective of whether they are taken up by government and political parties. 'Political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about."
" Some caution is in any event called for in considering different enactments decided under different constitutional arrangements. But, even more important, the United Kingdom courts must take their lead from Strasbourg. "
Conclusions
" the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than aninternational
court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight."
The Court added, at paragraph 122, that, on policy issues that do not intrude into a particularly sensitive area of private life:
"[t]he Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance."
Mr Justice Ousley:
The framework for the decision
The justification for the ban
The decision in VGT
Other countries
Conclusion
Note 1 Save in the case of local radio services who have a lesser duty of no undue prominence to such matters; see 2003 Act, s. 320(1)(c). [Back] Note 2 Contracting Out (Functions Relating to Broadcasting Advertising) and Specification of Relevant Functions Order 2004, [Back] Note 3 5th Report (1998) Cap 13, paras 94-97 [Back] Note 4 19th Report of Sessions 2001-02, HL Paper No 149 and HC Paper No 1102, para 301 [Back] Note 5 (January 2003) pp 17-19 [Back] Note 7 Freedom of Speech, Oxford; OUP, 161 [Back] Note 8 See Political Expression and the Broadcasting Ban on Advocacy Advertising, Andrew Scott, (2003) MLR 224, at 238 [Back] Note 9 In tandem with being subject to control, by virtue of section 333, by OFCOM of party political and party election broadcasts [Back] Note 10 A Sk Para 27: Australia no counterpart to UK, tailored to election period; New Zealand limited to election period; Canada tailored prohibition to election period and spending cap (and see Harper para 79 for useful statement of case against third party advertising); [Back] Note 11 See also Tom Lewis, Political Advertising and the Communications Act2003: Tailored Suit or Old Blanket?, [2005] EHRLR 290 [Back]