On Wednesday 7 March 2012 the Grand Chamber of the European Court of Human Rights will an oral hearing of the year in the case of Animal Defenders International v Unkingdom. This is the first oral hearing of the year in a case involving the United Kingdom and the first United Kingdom Article 10 case to be heard by the Grand Chamber since Bowman in 1998. The case concerns the ban on political advertising in sections 319 and 321 of the Communications Act 2003 which the applicant contends is a violation of its Article 10 right to freedom of expression.
The applicant, Animal Defenders International (“ADI”), is a non-governmental organisation whose aims include protecting animals from suffering. In 2005, it began a campaign directed against the keeping and exhibition of primates in zoos and circuses and their use in television advertising. As part of the campaign, it wished to screen a TV advertisement with the title “My Mate’s a Primate” (which can be seen on You Tube). The applicant submitted the advert to the Broadcast Advertising Clearance Centre (“the BACC”), for a review of its compliance with relevant laws and codes. The BACC declined to clear the advert, drawing attention to the political nature of ADI as reflected in its non-charitable status.
That decision was upheld by the Administrative Court on ADI’s application for judicial review ( EWHC 3069 (Admin)) and by the House of Lords in March 2008 ( UKHL 15). The House of Lords held that the prohibition on political advertising under UK law was justified by the aim of preventing policies from being decided by the highest spenders and that, as applied in ADI’s case, it was not incompatible with Article 10.
ADI complains that it has been unjustifiably denied the opportunity to advertise on television or radio. The application was lodged with the European Court of Human Rights on 11 September 2008. On 29 November 2011, the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. The “Statement of Facts and Issues” can be found here.
The Grand Chamber posed the following question to the parties:
“Was the interference (based on sections 319 and 321 of the Communications Act 2003) with the applicant association’s right to freedom of expression under Article 10 of the Convention, “necessary in a democratic society” within the meaning of Article 10(2) of the Convention as interpreted in the light of the court’s previous case law (namely Verein Gegen Tierfabriken Schweiz v Switzerland 28 June 2001, No. 24699/94 (“VgT”); Murphy v. Ireland 10 July 2003, No. 44179/99 (“Murphy”); and TV Vest AS and Rogaland Pensjonistparti v Norway. 11 December 2008. No. 21132/05) (“TV Vest”).
In its Memorial the Applicant contends that the prohibition on political advertising in sections 319 and 321 of the 2003 Act cannot be shown to be justified as “necessary in a democratic society” because:
(1) A restriction on political expression – which includes the advocacy of “law/policy change” and “social advocacy” – is one which requires “strict scrutiny” by the Court. Where political expression is in issue the margin of appreciation is a narrow one in such cases.
(2) There is a total prohibition on political advertising defined in an extraordinarily broad sense. “Political” covers party and election matters, but also “law/policy change” and “social advocacy”. The prohibition imposes a blanket ban on all broadcast advertisements that are either inserted on behalf of a body whose objects are wholly or mainly “political” or are “directed towards a political end”.
(3) There is no pressing social need for a total prohibition on political advertising imposing such a blanket ban, particularly where it covers advertising placed by a body whose objects are “law/policy change” and “social advocacy” or which is placed for those ends.
(4) This very issue was considered in the Vgt and TV Vest cases, where it was held that a ban on political advertising is not necessary in a democratic society.
In contrast, the United Kingdom Government argues Parliament was entitled to prohibit all political advertising because it judged, and was entitled to judge, that without the prohibition there would be an unacceptable danger that the agenda of political debate in the United Kingdom would be unfairly distorted in favour of the views held by those wealthy enough to spend most on broadcast advertising.
If the application is unsuccessful it will have wide ranging consequences for the use of television and radio by political parties and campaigning groups in the United Kingdom.