By a majority of 9 votes to 8, the European Court of Human Rights on 22 April held that the UK’s ban on political advertising in broadcast media does not violate the right to freedom of expression as provided under Article 10 of the European Convention on Human Rights.
The case concerned a television advert that Animal Defenders International (ADI) wished to broadcast as part of a 2005 campaign entitled ‘My Mate’s a Primate’, which was directed against the keeping of primates in zoos and circuses, and their use in television advertising. The Broadcasting Advertising Clearance Centre (BACC) declined to clear the advert on the ground of the political nature of ADI’s objectives, which meant that section 321(2) of the Communications Act 2003 prohibited its broadcast.
The decision that the prohibition of political advertising on television and radio, imposed by the 2003 Act, was not incompatible with Article 10 was upheld by the High Court in December 2006 and in the House of Lords in 2008.
The ECtHR had to decide whether this interference with the applicant’s right to freedom of expression was “necessary in a democratic society”.
ADI’s main argument was that the prohibition on paid political advertising was too wide to be proportionate. In response, the Government maintained that Parliament had considered the prohibition necessary to avoid the risk that political debate would be distorted as a result of deep-pockets funding advertising in broadcasting media. Additionally, the Government argued that the prohibition could not be limited to electoral periods since those with large funds could saturate an electorate with a view at any time. Placing financial caps on groups seeking to broadcast advertisements was not a solution either because such groups could create associated groups for the sole purpose of advancing a specific political aim.
Much weight was given to the proportionality of the prohibition. The Court noted that the prohibition had been enacted by Parliament without any dissenting vote and that all bodies involved had found the prohibition to be a necessary interference with Article 10 rights. The issue of proportionality had been debated in the High Court and House of Lords, and each of these courts had concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10.
The ECtHR did not consider that the impact of the prohibition outweighed the justifications for the generality of the measure. In his concurring opinion Judge Bratza referred to Lord Bingham’s earlier statement in the House of Lords that “the drawing of a line inevitably means that hard cases will arise falling on the wrong side of it,” but that this should not invalidate the rule.
The other media channels which remained open to the applicant were noted, including ADI’s ability to participate in radio or television discussion programmes of a political nature. The court concluded that the prohibition could not be considered to amount to a disproportionate interference with the applicant’s right to freedom of expression and there had not been a violation of Article 10 of the Convention.