The High Court last week dismissed a judicial review application brought by two Christian media companies seeking to overturn the decision of the Radio Advertising Clearance Centre (RACC) to refuse clearance of a radio ad which the RACC considered to be in breach of the ban on political advertising contained in sections 319 and 321 of the Communications Act 2003.
Background
London Christian Radio Limited (LCR), which runs national radio station Premier Christian Radio and Christian Communications Partnership (CCP), which is a publisher of Christian magazines, applied for judicial review after its proposed advert concerning the marginalisation of Christians in the workplace was turned down for broadcast by the RACC under the Act. The ad informed listeners that it sought “the most accurate data to inform the public debate” and to “help make it a fairer society”.
The RACC refused clearance because it considered that the ad infringed the prohibitions on political advertising set out in sections 319 and 321 of the Act as being “an advertisement which is directed towards a political end.”
LCR and CCP challenged this refusal on the basis that the ad did not fall within the statutory ban, and they also submitted that if it did, then the ban was incompatible with their right to freedom of expression under Article 10 of the European Convention on Human Rights.
Decision
Mr Justice Silber dismissed the claimants’ application, focusing firstly on whether the ban on political advertising on the radio infringed the claimants’ rights under Article 10. An individual’s right to freedom of expression will not be infringed by “restrictions … as are prescribed by law”, such as those included in the 2003 Act, provided that such restrictions are “necessary in a democratic society.”
The judge noted that he was bound to follow the decision of the House of Lords in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008], a strikingly similar case involving a television ad, in which it was held that the legislation had a legitimate aim which was the protection of the rights of others which included the right to be protected against the potential mischief of partial political advertising.
As in Lord Bingham’s judgment in Animal Defenders, Mr Justice Silber emphasised the need for the state to be able to restrict broadcast political advertising because of the pervasive nature of these forms of media, in order to ensure a balanced public discussion of political issues, without fear of distortion by political or non political parties with unlimited resources. Mr Justice Silber concluded that the restrictions set out in section 319 of the Act constituted restrictions prescribed by law which are necessary in a democratic society.
Mr Justice Silber also addressed the question of whether the ad constituted “political advertising” so that it could not be included on any radio programme. He concluded that the ad was seeking to obtain information which would ultimately be used to influence the legislative process, to influence policy or the decisions of policy makers or influence public opinion on a matter which, in the United Kingdom, is a matter of public controversy. Consequently, the ad fell foul of sections 321(3)(b), (c) and (f) of the Act. The RACC’s decision to refuse to clear the ad could not be impugned and the claimants’ application was rejected.
Conclusion
The judgment in this case was handed down notwithstanding the pending judgment of the Grand Chamber of the European Court of Human Rights in the Animal Defenders case. Given that the High Court in this case was bound by the decision of the House of Lords in Animal Defenders, the parties will no doubt be awaiting the decision of the Grand Chamber as to whether the House of Lords was correct in that case in its interpretation of the restrictions imposed by the 2003 Act and their compatibility with Article 10.
The RACC chose not to be represented at the hearing of the application and was advised by Swan Turton.