Ban on broadcast “political” ads upheld: ADI v Secretary of State for Culture, Media & Sport

Animal Defenders International (ADI) is a non-charitable organisation which campaigns against the use of animals in commerce, science and leisure. ADI submitted a TV script to the Broadcast Advertising Clearance Centre (BACC) as part of a campaign called “My Mate’s a Primate” against the use of primates for the purpose of public entertainment in places such as zoos and circuses.

The BACC refused clearance on the ground that the advertisement would breach the ban on political advertising in Section 321(2) of the Communications Act 2003, because ADI was a “body whose objects are wholly or mainly of a political nature”. “Political” for these purposes is widely defined and includes not only influencing the outcome of elections or bringing about changes of the law, but a wide range of activities including “influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy.”

There was no doubt that ADI was a “political” body as defined in the Communications Act and that its proposed advertisement was caught by the statutory prohibition on political advertising. ADI therefore challenged the prohibition itself and sought a declaration in the High Court that it was incompatible with Article 10 of the European Convention on Human Rights (“Everyone has the right to freedom of expression … subject to such … restrictions … as are prescribed by law and are necessary in a democratic society …”).

Unsurprisingly, the court rejected ADI’s application. Having reviewed previous challenges of this kind in a number of countries (including a successful challenge in Switzerland a few years ago), the court earlier this month found that Parliament had acted within the bounds of its discretion under Article 10 in the way it had prohibited political advertising in the Communications Act.

As one of the judges pointed out, it is a paradox that although political speech is the most carefully protected form of expression under Article 10, political advertising is almost entirely banned from the airwaves (outside election periods).

The main reason for this is that the broadcast media are still reckoned to be especially vulnerable to abuse by powerful interests capable of distorting the democratic process. TV and radio time are available for non-controversial advertising by registered charities because bodies set up for “political purposes” cannot be registered as charities. But campaigning bodies such as ADI are restricted to less “potent and pervasive” media such as press and internet.

ADI questioned this distinction between broadcast and other advertising, but it was upheld previously by the European Court of Human Rights in Murphy, an Irish case concerning religious advertising, and the UK court saw no reason to depart from this.

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