Ban on Political Advertising Consistent with the Right to Freedom of Expression

Animal Defenders International, R (On The Application of) v Secretary of State For Culture, Media and Sport [2008] UKHL 15 (12 March 2008) In this decision, the UK Court of Appeal held that a ban on political advertising can be compatible with art 10 of the European Convention on Human Rights.

Facts In 2005, Animal Defenders International (ADI) launched a campaign with the object of drawing attention to the use of primates by humans. The campaign was to include a television advertisement. Section 321(2) of the Communications Act 2003 prevents any advertisement showing that (a) is inserted by or on behalf of a body whose objects are wholly or mainly religious or political; (b) is directed towards a political end; or, (c) has a connection with an industrial dispute (‘political advertising’). The Broadcast Advertising Clearance Centre declined clearance for ADI’s advertisement on the basis that transmission would breach the prohibition on political advertising in s 321(2) because the appellant was a body with mainly political objectives as defined by the Act. ADI sought a declaration that the ban on electronic political advertising in s 321(2) was incompatible with art 10 of the European Convention on Human Rights because it imposed an unjustified restraint on freedom of political expression.

Decision The Court of Appeal dismissed the appeal and permitted the ban on political advertising on the basis that the ban is necessary in a democratic society to ensure a level playing field for public debate. Without the ban, financially powerful groups who are not political parties may use ‘the power of the purse’ to give enhanced prominence to their views. As television is a subversive medium with great immediacy and impact, there is a risk that the public will accept views ‘by dint of constant repetition’ rather than considering the merits of views expressed in public debate. The court considered whether the ban should operate where the content of the political advertisement is wholly inoffensive. It determined that political advertising should be banned regardless of the content of the views promoted, as the line between inoffensive and injurious material is blurred. The issue is to be tested with reference to objects with which one may not be sympathetic; for example, well-endowed multi-nationals seeking to thwart or delay action on climate change or adverts by wealthy groups seeking to ban abortion. The court determined that the right to free expression includes a right to be protected from the influence of partial political advertising regardless of its content. The court considered the judgment of the Swiss court in VgT, which ruled that the ban on political advertising was incompatible with art 10. This case had similar facts, although the advertisement sought to be aired was a response to a meat industry advertisement that promoted eating meat. The court in VgT looked at the specific circumstances of the case, and ruled that the advertisement did not endanger the equality of opportunity between different forces in society; rather, allowing the advertisement would strike a balance between competing interests. In considering VgT, the Court of Appeal acknowledged that it will be difficult to justify banning an advertisement that is a response to another political advertisement. A body with political aims seeking to counter the effect of commercial advertising relating to a controversial issue would have strong grounds for seeking an opportunity to put its case. The ban on political advertising protects the democratic process by ensuring a level playing field for public debate by preventing financially powerful bodies from disproportionately influencing public opinion through television advertising. Relevance to the Victorian Charter In the Victorian context, this decision may affect the interpretation and application of art 15 which protects freedom of expression. Following Animal Defenders, it is likely that a ban on electronic political advertising will be compatible with art 15. This is particularly likely given that art 15(3) specifically contemplates restrictions on the freedom of expression to protect other people’s rights and for the protection of public order and morality. However, given the court’s consideration of VgT, it is unlikely that the ban will be justified for advertisements that respond to other political advertisements that have already aired. In fact, allowing such advertisements to show may in fact be necessary to ensure both views receive equal exposure in the public domain. The decision is available at Adrienne Lyle, Human Rights Law Group, Mallesons Stephen Jaques