In a judgment handed down last week by the Court of Appeal in an application for Judicial Review by a political party called the ProLife Alliance, the Court held that the freedom of political speech must only be interfered with in very exceptional circumstances. The refusal by the BBC (and other broadcasters) to transmit an election broadcast by the ProLife Alliance was unlawful.
In the run up to the last general election representatives from the BBC and other terrestrial broadcasters rejected a video of the proposed ProLife broadcast on the ground that it breached the BBC Producer’s Guidelines and the ITC Programme Code. Milder second and third versions of the ProLife broadcast were also rejected for the same reasons. A fourth version was ultimately approved and transmitted, but that version contained no visual images.
Lord Justice Laws said that the case was about the censorship of political speech and it concerned the constraints which might lawfully be imposed by a broadcaster on the content of the party election broadcast. He had watched all three videos and described the first, which showed the grisly aftermath of a successful abortion. The pictures were taken from real footage and the judge described them as “disturbing to any person of ordinary sensibilities”.
The broadcasters’ case was that they were obliged by the Broadcasting Act 1990 to ensure that nothing was included in their programmes which offended against good taste or decency or was likely to be offensive to public feeling. Lord Justice Laws said that the Court had to decide whether such considerations constituted a legal justification for what amounted to an act of censorship of the ProLife’s broadcast.
The courts owe a special responsibility to the public as the constitutional guardian of the freedom of political debate, said Lord Justice Laws. Freedom of expression was a constitutional right and its enjoyment by an accredited political party called for heightened protection. While the broadcasters’ views were entitled to be respected, their weight was at best modest and the courts’ constitutional responsibility to protect political speech was “overarching”. He observed of the broadcasters that perhaps the feathers of their liberal credentials were ruffled at the overtone of the word ‘censorship’. He accepted that some forms of censorship were justified, but while what was shown in the broadcast was graphic and disturbing, if political free speech was to be taken seriously, those characteristics could not justify this instance of censorship.
The judge concluded that there was no answer to the claim that the ProLife Alliance was entitled to show, not just tell, what happened when abortions took place, since their purpose was to oppose it. While there might be instances, even around a general election, where censorship of political speech might be justified on the grounds of taste or offensiveness, this would only be in a very extreme case, which would be likely to involve factors such as gratuitous sensationalism and dishonesty.
The Court of Appeal has reinforced the right of individuals and political groups to put forward views which may be disturbing or offensive to the majority on the basis that it is vital in a democracy that this right is preserved. It is perhaps ironic that all four terrestrial broadcasters found themselves being reminded of this by a Lord Justice of Appeal.