London Christian Radio & Anor, R (on the application of) v Radio Advertising Clearance Centre & Anor  EWHC 1043 (Admin) (20 April 2012)
The England and Wales High Court held that a statutory prohibition against political advertising did not infringe the right to freedom of expression under article 10 of the European Convention on Human Rights. The Court held that the Radio Advertising Clearance Centre acted lawfully in refusing clearance for a proposed radio advertisement that requested information to “inform public debate” and “help make a fairer society” as the advertisement was directed towards a political end and thus in contravention of the statutory prohibition.
The second claimant, Christian Communications Partnerships Limited, intended to broadcast an advertisement on a Christian radio station run by the first claimant, London Christian Radio Limited. The claimants were obliged to obtain clearance from the defendant, RACC, to air the advertisement. The claimants submitted the following advertisement for clearance on 28 May 2010:
We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the work place. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit [CCP's website] and report your experiences.
RACC refused clearance on the basis that the proposed advertisement contravened sections 319 and 321 of the Communications Act 2003 (UK), which prohibited any radio advertisement “directed towards a political end”.
The claimants applied for judicial review of RACC's decision. RACC adopted a position of neutrality and was not involved in the proceeding. The Secretary of State for Culture, Olympics, Media and Sport was joined as an interested party and opposed the application.
The Court dismissed the application.
The claimants’ first contention was that the advertisement did not contravene the Act because it was not, as a matter of ordinary construction, “directed towards a political end”. The Court rejected this argument. In seeking to “inform the public debate” and “help make a fairer society”, the information sought by the proposed advertisement would be used to make changes in society, and such an activity was directed towards a political end. Furthermore, the Court considered that RACC’s decision could not be impugned unless it was “so aberrant that it cannot be classed as rational”, which it was not.
The claimants’ second contention was that the provisions of the Act that prohibited the broadcast of the proposed advertisement were inconsistent with the claimants' right to freedom of expression under article 10 of the Convention. The Court acknowledged that the right to freedom of expression is “very important and well-established”. The main issue in dispute was whether the ban on political advertising fell within the exception in article 10.2 of the Convention; specifically, whether the ban was “necessary in a democratic society”.
The Court followed the reasoning of the House of Lords in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport  1 AC 131. In that case, the House of Lords declined to grant a declaration that provisions of the Act (banning television advertisements placed by political bodies) were incompatible with article 10 rights. The House of Lords was concerned that political advertisements may undermine democratic processes, noting that the Act aimed to protect the public from “the potential mischief of partial political advertising” and, similarly, from well-endowed interests with the “power of the purse”. The impact and immediacy of radio and television advertising justified the blanket prohibition. Further, the judgement of Parliament on such issues “should not be lightly overridden” as it can be assumed that “democratically-elected politicians will be particularly sensitive to the measures necessary to safeguard the integrity of our democracy”. For these reasons, the House of Lords held that the prohibition against political advertising was “necessary in a democratic society”.
Here, the Court concluded that it was bound by the decision in the Animal Defenders case and held that the ban on political advertising in sections 319 and 321 of the Act was “necessary in a democratic society” and, therefore, the claimants’ right to freedom of expression under article 10 of the Convention was not infringed. The Court noted that the substantial margin of appreciation owed to the Secretary of State would have alone justified a conclusion that the claimants’ article 10 rights had not been infringed.
Relevance to the Victorian Charter
Section 15 of the Victorian Charter enshrines the right of freedom of expression. However, the wording of section 15 of the Victorian Charter and article 10 of the Convention differ, as does the regulation of radio advertisements in the UK and in Australia. Nonetheless, this case may provide Victorian courts with general guidance on what may constitute a restriction reasonably necessary in a democratic society.
The intersection between political advertising and freedom of expression remains controversial. This issue is likely to be re-examined in the European context when a decision in the Animal Defenders appeal, which was heard on 7 March 2012, is handed down by the Grand Chamber of the European Court of Human Rights.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2012/1043.html
Catherine Newton is a Lawyer at Allens.