Saturday 28 April 2012

Political advertising and why we don't want it on TV and radio

London Christian Radio Ltd & Another v Radio Advertising Clearance Centre [2012] EWHC 1043 (Admin)

The claimants, a registered charity, run the radio station "Premier Christian Radio" and also publishes three Christian periodicals. It wished to broadcast a radio advertisement inviting members of the public to contact the station with their stories of marginalisation of Christians in the workplace. Listeners were to be told that the advert was "seeking the most accurate data to inform the public debate" and to "help make it a fairer society."

In its submission to the RACC the claimants confirmed the purpose of gathering the information, amongst others, was "to inform, encourage and to equip Christians to deal with such matters, to raise it with the Equalities Commission and the Government and to inform the public and raise awareness."

The defendant, the RACC, refused permission to broadcast the advert on the basis that it infringed the prohibition on political advertising.

The challenge

The claimants challenged this decision in judicial review, seeking a declaration that the advert was not political, or in the alternative that the prohibition was a breach of its right to freedom of expression under Article 10 of the European Convention. [23]

The law

Section 321(2) of the Communications Act 2003 provides, inter alia, that "an advertisement contravenes the prohibition on political advertising if it is an advertisement which is directed towards a political end."

Section 321(3) goes on to explain that "political ends" includes, inter alia, "bringing about changes of the law … influencing the policies of local, regional or national governments … influencing public opinion on a matter of public controversy."

Article 10

The judge, Mr Justice Silber, dealt first with the Article 10 arguments, because success for the claimant on this article would inform the interpretation of section 321. Article 10 states:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".

It was common ground that Article 10 was engaged, and that the broadcast restriction was a matter prescribed by law. The only point in argument was whether the restriction was "necessary in a democratic society." [27] "Necessary" implies the existence of a "pressing social need," [28] the response to which must be "proportionate to a legitimate aim." [29]

The most recent UK case law on section 321 is a House of Lords decision in the case R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15. The learned judge described  the similarities between ADI and the present case as "striking," [46] and that no reason had been put before him not to follow it.

ADI

The legitimate aim of the legislation was "the protection of rights of others, which included the right to be protected against the potential mischief of partial political advertisement."

From para 28 of ADI:

"it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated …

"It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious …

"The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising."

The pressing social need was that "the broadcast media is more pervasive and potent than any other form of media … and no fair and workable compromise solution could be found which would address the problem of partial political advertising." [39]

Other relevant factors in ADI were that parliament had recently addressed the matter and not come up with a workable alternative itself, [40] and the court should therefore give "great weight" to the opinion of parliament. Furthermore other options for advertising through newspapers, magazines, direct mail shots and billboards were available. [41]

It is notable that the decision in ADI was unanimous. [42] However, it is under challenge and would imminently be heard in the Grand Chamber of the European Court of Human Rights. Nevertheless, in the meantime the High Court is bound by the decision of the House of Lords in ADI. [29] The Article 10 argument therefore failed.

Was the advertisement political?

The claimant argued firstly that the court should consider the strict wording of the advert itself, and secondly that the motive or objective of the advertiser was irrelevant. [55] The advertisement was merely a "statement of fact" with the use to which any information gleaned stated in "the blandest terms." [56]

The defendant argued that the advertisement fell "fair and square" within the prohibition, and that the words "directed towards" in section 321 include the intention of the advertiser. In response the claimants counter-argued that this amounted to re-writing the legislation to prohibit "an advertisement the motive of which is directed towards a political end." [57]

The learned judge dismissed the advertiser's motive as irrelevant for three reasons: [58]

(i) the purpose of the prohibition is to protect the public "irrespective of the views or motives of the advertiser."
(ii) otherwise if an advertiser could demonstrate he lacked the prohibited intent, an advertisement might have to be cleared for broadcast that otherwise would be refused permission.
(iii) the legislation is silent on the matter of advertiser's intent.

As it happens, the judge was satisfied in any event that the advertisement, by virtue of the words, "to inform the public debate" and "to help make a fairer society," was indeed directed to making changes to society. The application for judicial review would therefore be dismissed.

Comment

As explored elsewhere in the judgment, the European Court's view on political advertising is in a state of flux. ADI was due to be heard in the Grand Chamber in March 2012 and the outcome is awaited.

One notable characteristic of the European Court is that it has tended to set its face against blanket bans on matters judged on the test of proportionality. For example, the blanket ban on prisoners voting (Hirst no 2 v UK [2005] ECHR 681) was considered a disproportionate measure.

However, recent case law suggests that the European Court is more amenable to following UK jurisprudence when it has been fully considered in the House of Lords/Supreme Court. Additionally, the prohibition on political broadcast advertising was given recent and due consideration in parliament while debating the Communications Act, whereas the lack of such parliamentary consideration was criticised in the Hirst decision.

There is therefore every reason for the European Court to uphold the UK position in ADI, whether as a matter of reasoned principle or by way of the 'margin of appreciation.'

The ban on political broadcast advertising goes against the grain of freedom of speech, and against the normal presumption that open and free argument of issues will tend towards identifying the best outcomes.

Nevertheless, it is a necessary evil, for the simple reason that it is so much more amenable to abuse. As the House of Lords ruled in ADI, the broadcast media is much more pervasive, and might I add persuasive, (particularly in visual format), that notions of "right" and "truth", at least in a received sense, will indeed be available to the highest bidder.

Slippery slope arguments aren't generally the most attractive; it would be much better to have a set of principled but permissive rules rather than a blanket ban, and the facts of this case appear innocuous enough. Nevertheless, the dangers in this area are manifest and the consequences serious – I cite merely the current and perennial arguments over political party funding.

Neither parliament nor the courts have been able to come up with a better solution than to treat everyone the same - which isn't so unprincipled a solution after all. It would, of course, be very different if other forms of media were not available.


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