Where the exercise of a right to speak freely crosses a red line

Summary The English High Court of Justice held that Transport for London's decision to prevent the Core Issues Trust from advertising a confrontational message against lesbians, gay men, bisexual and transgender individuals on London's bus network did not contravene Transport for London's duty to act compatibly with the European Convention on Human Rights.

Facts

The Trust and Anglican Mainstream are companies limited by guarantee and registered charities whose objects are the advancement of religion and the promotion of biblical scriptures. Transport for London is a statutory body and makes provision for bus services in London through contractors.

Bus operators can accept commercial advertisements on buses subject to certain conditions. These conditions include a requirement that advertisements must comply with Transport forLondon's advertising policy and the British Code of Advertising, Sales Promotion and Direct Marketing. Transport forLondon's advertising policy excludes advertisements that, in Transport forLondon's reasonable opinion, are likely to cause "widespread or serious offence to members of the public" or "which relate to matters of public controversy or sensitivity".

Advertising on Transport forLondon's bus network is managed by external contractors. On 4 April 2012, Anglican Mainstream, on behalf of the Trust, submitted an order form to an external contractor for an advertisement. This advertisement stated "NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT". This advertisement was intended to respond to an earlier advertisement by Stonewall – an organisation concerned with promoting equality and justice for LGBTI individuals – which appeared on Transport forLondon's bus network. That advertisement stated "SOME PEOPLE ARE GAY. GET OVER IT!"

On 5April, the external contractor submitted the advertisement to an industry-created committee which offers advice on compliance with the British Code, Advertising, Sales Promotion and Direct Marketing. On 10 April, the committee notified the external contractor that it was unlikely that the Advertising Standards Authority – an independent body that administers the Code and investigates complaints – would uphold complaints against Anglican Mainstream's advertisement.

On 12 April, the external contractor confirmed Anglican Mainstream's order and the two parties entered into a contract. That afternoon, the external contractor notified Transport forLondonthat it had accepted Anglican Mainstream's order.

Later that same afternoon, the Guardian newspaper published an article that the advertisement would run on buses the following week. The article triggered a large number of posts on the Guardian website and elsewhere, objecting to the advertisement. Transport forLondonalso received a large number of complaints. That evening, Transport forLondonissued a public statement that the advertisement would not run on the bus network.

The Trust brought judicial review proceedings alleging, among other things, that Transport forLondon's decision was made without proper consideration to the human rights of Anglican Mainstream and the Trust.

Decision

The Court accepted that Transport for London is required to read and give effect to primary and subordinate legislation in a manner which is compatible with the European Convention on Human Rights. The Court considered the following Convention rights.

Freedom of expression (article 10)

The Court held that advertising is a medium which, in principle, is protected by article 10. Article 10 was engaged because Transport forLondoninterfered with the Trust's right to express its message through advertising.

Since article 10 was engaged, the Court considered whether the interference was prescribed by law; in furtherance of a legitimate aim; and necessary in a democratic society. The interference was prescribed by law because the advertising policy met the requirement of legal certainty. Transport forLondonapplied its policy in furtherance of a legitimate aim: to protect the rights of LGBTI individuals.

In considering whether the interference was necessary in a democratic society, the Court had to consider two separate exercises of judgment by Transport forLondon. Firstly, Transport forLondon's decision to adopt the advertising policy which prohibits advertisements "likely to cause widespread or serious offence" or which "relate to matters of public controversy or sensitivity". The Court considered that it was proportionate to ask people to express controversial or offensive messages through means other than advertising on buses in a major city. Critical to this conclusion was the intrusive nature of this form of advertising and that the nature of these advertisements made it unlikely for a reasoned case to be made. In the Court's view, the advertising policy did not contravene article 10.

Secondly, the Court considered Transport forLondon's decision not to approve the Trust's advertisement. The Court weighed up a number of competing considerations. The Court recognised that Transport forLondonhad applied its policy in an inconsistent and partial manner by previously permitting advertisements offensive to religious groups to be displayed on buses. Moreover, the Court noted that Transport forLondonrefused the Trust a right to respond. These factors were nevertheless outweighed by countervailing considerations:

  • the location of the advertisement;
  • the large number of people exposed to it;
  • the confrontational nature of the message that was liable to promote homophobic views; and
  • that Transport forLondonwould breach its public sector equality duty if it allowed the advertisement to run.

Prohibits discrimination in the enjoyment of Convention rights (article 14)

The Trust made two submissions. Firstly, that Transport for Londondiscriminated against the Trust by refusing the Trust's advertisement and accepting Stonewall's advertisement. The Court rejected this argument on the ground that Transport for Londondecision's was based on the advertisement's content as opposed to the Trust's identity. Secondly, the Trust submitted that Transport for Londondiscriminated against “ex-gays” who are a protected class under the Equality Act 2010 (UK) and that “ex-gays” face hostility and discrimination. The Court also rejected this submission because, among other things, “ex-gays” were not a protected class.

Freedom of thought, conscience or religion (article 9)

The Court held that article 9 was not engaged for two reasons. First, the rights protected by article 9 could not be enjoyed by corporate entities or non-natural persons such as associations. Secondly, the Trust was seeking to express its perspective on a moral issue, not the manifestation of a religious belief. Even if the advertisement was motivated by religious belief, the advertisement did not express that belief. Nor was the Trust required by religious belief to communicate these views by way of advertisement onLondonbuses.

Commentary

This decision potentially has implications for human rights legislation which protects freedom of speech and freedom of thought, conscience, religion or belief such as the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The decision demonstrates that when considering whether restrictions on freedom of speech are proportionate to a legitimate end, where the restriction is on speech:

  • which makes no reasoned or informed contribution to debate on sensitive issues;
  • is likely to lead to ill-informed views, or foster prejudice, against persons based on their sexual orientation, sex, age or race; and
  • is communicated through intrusive means to persons likely to be offended,

then Courts are likely to form the view that the restrictions satisfy the proportionality test.

This decision also illustrates that the freedom of thought, conscience, religion and belief will not necessarily protect conduct or speech that is merely motivated by religious belief. The conduct or speech must be seen as a manifestation of that belief or prescribed by that belief before the freedom can be engaged.

The decision is available online at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/core-issues-trust-v-tfl.pdf

Andrew Hanna is a law graduate at Allens.