The High Court last week upheld TfL’s refusal to allow a bus side ad by a Christian group named Core Issues Trust. The judgment illustrates the increasing importance of equality legislation for the media. The sexual orientation battleground is becoming a difficult one for religious conservatives when it comes to promoting their views via paid-for channels.
The Trust, along with Anglican Mainstream which took no part in the proceedings, wanted in April 2012 to run an ad on London buses which read: “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”
This was intended as a response to another ad which TfL had previously allowed the gay rights organisation Stonewall to run which read: “SOME PEOPLE ARE GAY. GET OVER IT!”
The Trust sought a judicial review of TfL’s decision not to allow the ad to appear on the outside of its buses.
The reason given by TfL for the refusal was that the ad was contrary to its Advertising Policy which provided that an ad will not be approved for TfL’s services if it is “likely to cause widespread or serious offence to members of the public”. Most advertising codes and policies contain such a clause.
TfL found itself at the centre of a storm when asked to approve the ad. A Guardian article had already triggered more than 800 posts on the Guardian website, 1500 Twitter comments and a dedicated Facebook page set up against the ad. TfL had received a large number of complaints. This was before the ad had got anywhere near a bus. The Guardian was “sniffing around” the advertising contractor, CBS Outdoor. The Committee on Advertising Practice (CAP) had advised CBS Outdoor that they believed, in the light of existing ASA adjudications, that the ASA would be unlikely to uphold complaints against the ad.
TfL’s decision was far from carefully considered. The TfL communications people weren’t sure what to do about this PR nightmare but took the view that allowing the ad to run would be more dangerous than banning it. Boris Johnson, who was both Mayor of London and Chair of TfL, was strongly opposed to the ad. The judge, Mrs Justice Lang, found on the evidence before her that the Mayor, who was running for re-election at the time, had not abused his position as Chair of TfL to advance his re-election campaign.
The judge found that TfL’s decision-making process “fell below the standards to be expected of a responsible public body”, but the Trust did not challenge the legality of the decision on free-standing procedural grounds. This would have been futile as TfL could simply have reconvened, considered the issues more carefully and then made the same decision again. Instead the Trust argued that TfL’s decision was an over-hasty reaction to press criticism (the “heckler’s veto”) without proper consideration of the Trust’s human rights.
The judge found that TfL’s decision to refuse to display the ad was justified and proportionate, it was in furtherance of the legitimate aim of protecting the rights of others, and it was not therefore a breach of the Trust’s right to free speech under Article 10 of the European Convention on Human Rights. The judge listed the following factors which militated against the ad being allowed to run:
- Ads on the side of London buses are highly intrusive.
- The ad would cause grave offence to a significant section of Londoners. For those who are gay, it was liable to interfere with the Article 8 right to respect for their private and family life.
- It was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks.
- It was not a contribution to a reasoned debate.
- Leaflets, articles, meetings and the internet all provided an alternative vehicle for the expression of the Trust’s message.
- Displaying the ad would have breached statutory duties of TfL under Section 149 of the Equality Act 2010.
Section 149 required TfL, as a public authority, to have due regard to the need to:
- eliminate discrimination, harassment and victimisation against gay people; and
- foster good relations between gay people and others, in particular to tackle prejudice and promote understanding.
The judge found that TfL would have been acting in breach of its duty under Section 149 if it allowed the ads to run because the ad encouraged discrimination and did not foster good relations or tackle prejudice or promote understanding between gay people and others.
The effect of the Equality Act is to fetter the freedom of public bodies to carry ads which denigrate people on the basis of a protected characteristic such as sexual orientation, gender, race or religious belief. Free speech radicals in the Ronald Dworkin mould don’t agree with this (as the judge noted), but it is a public policy decision which Parliament has made and the courts must apply.
The judge was sympathetic to the Trust’s argument that TfL applied its Advertising Policy in an inconsistent and partial manner. TfL had previously allowed ads on controversial and sensitive topics such as atheism and homosexuality, thus causing offence to many Christians, but then prevented Christians from responding with their views. They had allowed the Stonewall ad as well as an anti-religious ad by the Humanist Association which proclaimed: “THERE’S PROBABLY NO GOD. NOW STOP WORRYING AND ENJOY YOUR LIFE.”
The judge didn’t consider that the Stonewall ad complied with TfL’s advertising restrictions any more than the Trust’s ad did. Both ads were “in the form of confrontational assertions which made no contribution to a reasoned debate.” The Humanist Association’s ad was offensive to Christians and the Stonewall ad was offensive to fundamentalist Christians and others. Rejecting TfL’s justification of its approval of the Stonewall ad the judge doubted “whether this confrontational advertisement did anything to “tackle prejudice” or “promote understanding” among homophobic people. It was more likely to spark retaliation, as indeed it did in the case of Anglican Mainstream and the Trust.”
All this was relevant, but was outweighed by other factors including Section 149 of the Equality Act, which made it proportionate for TfL to refuse to approve the ad. A victory for TfL, although not without some egg on its face. The Trust has reportedly been given permission to appeal.
Ads on the sides of buses are certainly intrusive. As the judge noted, you can’t avoid them and you can’t even switch them off like a radio or television ad. There may be an argument for banning a wide range of political and religious ads from the outside of buses, as in the case of radio and television. They are “skilfully designed to deliver a short, sharp shock to the public”, contribute little to reasoned public debate and doubtless cause offence in some cases. But unless TfL revises its Advertising Policy, the Trust is more successful in the Court of Appeal or the ASA becomes more receptive to complaints about bus ads in the light of this judgment, anti-gay campaigners will need to find other ways of responding to their opponents’ provocative short messages. The conservative religious agenda is out of step with mainstream opinion in society as a whole and conflicts with the social and legal agenda of tackling prejudice and promoting understanding between gays and non-gays.