R (Animal Defenders International) v Culture Secretary (DC)
Reference:  EWHC 3069 (Admin);  EMLR 158; (2007) HRLR 9
Court: Administrative Court
Judge: Auld LJ and Ouseley J
Date of judgment: 4 Dec 2006
Summary: Freedom of expression - Article 10 - Political advertising - ss.319-321, Communications Act 2003 - Declaration of incompatibility - Margin of appreciation
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Instructing Solicitors: Bindmans for the Applicant; Treasury Solicitor for the Respondent
ADI, a non-profit and non-charitable animal rights organisation, sought a declaration under s.4 Human Rights Act 1998 that the prohibition of political advertising on television and radio contained in the Communications Act 2003 was incompatible with Article 10 ECHR. It accepted that the ban was justified under Article 10(2) as being prescribed by law, and had a legitimate aim of preventing distortion of the political process by powerful groups who could afford broadcast advertising, but argued that the Act went beyond what was necessary to secure political impartiality and equality of treatment over the air-waves and contended for a sliding scale of ‘politicality’ with party politics at one end and “social advocacy” groups such as ADI at the other. Reliance was placed on VGT v Switzerland in which the European Court of Human Rights had found that a law prohibiting broadcast advertising by an animal welfare group was not necessary in a democratic society.
Whether the statutory prohibition of political advertising on television and radio violated the Convention right to freedom of expression of would-be political advertisers.
Dismissing the application, and firmly rejecting the relevance of the fact-sensitive reasoning in VGT the court observed that although political expression was one of the most highly prized forms of expression, no-one has a right under Article 10 to broadcasting time on television or radio, except where its denial is discriminatory, arbitrary or otherwise unreasonable. The prohibition should be considered in the general scheme of control of broadcasting. There were a number of politically effective alternatives available in non-broadcast media and on the internet and a relaxation of the prohibition via controlled access to broadcasts during election periods. No sensible distinction could be drawn between political parties and social advocacy groups, or between different types of advertisement and this in itself was part of the justification for the complete ban. The subject matter of the Act was such that a considerable discretionary area of judgment should be given to Parliament.
A pragmatic recognition of the difficulty of drafting legislation to please all of the people all of the time. As Ouseley J observed: “A complete ban properly avoids some very arbitrary decisions.”