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ECHR rules that ban on paid political advertising in the UK justified

posted on 23 April, 2013   (public)

The European Court of Human Rights held on 22 April 2013, by nine votes to eight, that there was no violation of Article 10 (freedom of expression) of the European Convention on Human Rights in the case of Animal Defenders International v. the United Kingdom. The case concerned the complaint by a non-governmental organisation Animal Defenders International (ADI) that it had been unjustifiably denied the opportunity to advertise on television or radio.

ADI campaigns against the use of animals in commerce, science and leisure, seeking to achieve changes in law and public policy and to influence public and parliamentary opinion. In 2005, ADI began a campaign 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 a TV advertisement ("My Mate’s a Primate"), which it submitted to the responsible body, the Broadcast Advertising Clearance Centre. The BACC declined to clear the advert, drawing attention to the political nature of ADI as reflected in its non-charitable status. That decision was upheld by the High Court in December 2006 and by the House of Lords in March 2008. Relying on Article 10, ADI complains that it has been unjustifiably denied the opportunity to advertise on television or radio.

The Court noted that both parties had the same objective of maintaining a free and pluralist debate on matters of public interest. 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, 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. Account was taken of the fact that the complex regulatory regime governing political broadcasting in the UK 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 Court maintained that the reviews of the ban by both parliamentary and judicial bodies had been exacting and pertinent, taking into account the European Court’s caselaw.

The ban only applied to advertising - the applicant NGO had still access to alternative media: broadcast (radio and TV discussion programmes of a political nature or adverts on radio and TV on nonpolitical matters via a charitable arm)  and non-broadcast (print media, the internet and social media, demonstrations, posters and flyers). Moreover, the lack of European consensus on how to regulate paid political advertising in broadcasting meant that the UK Government had more room for manoeuvre when deciding on such matters as restricting public interest debate.

Overall, the Court found that the reasons given to justify the ban were convincing and that the ban did not go too far in restricting the right to participate in public debate and that it had not amounted to a disproportionate interference with the applicant NGO’s right to freedom of expression.

The judgment, among other sources, referred to the results of a comparative EPRA document on political advertising in broadcasting of May 2006 and to the introductory paper for the Working Group on “Political Advertising” held during the 30th EPRA Meeting in October 2009 in Dresden.

Source: European Court of Human Rights website