On Wednesday 7 March 2012, the Grand Chamber of the European Court of Human Rights heard the application in the Article 10 case of Animal Defenders International v United Kingdom.   A 17 judge court (with 3 substitute judges) presided over by Belgian Judge, Françoise Tulkens, heard oral submissions from Martin Chamberlain on behalf of the United Kingdom Government and Hugh Tomlinson QC on behalf of the Applicant.  There were no questions from the bench. Judgment was reserved and is likely to be delivered later in the year.

The text of the speech delivered by the Applicant’s Counsel is set out below.  The full hearing can be seen on the Court’s webcast.

Applicant’s Counsel’s Speech to the Grand Chamber

Mr President, members of the Court.

In 2005 the Applicant NGO prepared a 20 second television advert to support its campaign against the exploitation of non-human primates. The campaign was called “My Mate’s a Primate”. The advert showed a young girl in a cage.  It then had a caption saying “A chimp has the mental and emotional age of a 4 year old child”.  It went on to show a chimpanzee with a voice over saying that, “although they share 98% of our genetic make up they are still caged and abused to entertain”. The advert can be seen on You Tube.  It cannot be shown on television in the United Kingdom. Its broadcast would breach the absolute prohibition in sections 319 and 321 of the Communications Act 2003 which prevents the Applicant from placing a broadcast advert.

This particular advert is not said to be offensive or socially divisive.  It is not claimed that it damages or lowers the tone of public debate. It is not, in itself, objectionable in any way.  But, nevertheless, its broadcast in the United Kingdom is forbidden.

Under English law, a body whose objects are “wholly or mainly of a political nature” or an advertisement directed towards a “political end” cannot be broadcast on television or radio. This statutory ban is absolute.   In addition, the ban has three striking features.

First, there is the definition of “political”.  This is extraordinarily wide. It covers not a body seeking to influence the outcome of elections but also seeking to bring about a change in the law or the policies of governments or public officials anywhere in the world.   This means that, for example, it would not be possible to broadcast an advert which sought to persuade people to write to the president of Syria complaining about the treatment of civilians in Homs.  Any attempt to influence public opinion on any matter of public controversy through a broadcast advert is banned.  Put another way, it is in practice, in the United Kingdom to use broadcast adverts to contribute to any debate of general interest. The law does not permit it.

Second, the ban covers only radio and television.  The Applicant’s advert can be shown in cinemas or on the internet.  It could be shown on video screens in public places.  Its message could be placed on billboards or it newspapers. There is no prohibition in the United Kingdom on political advertising in the non-broadcast media although such advertisements are subject to certain content standards.  The Applicant was able to place its ‘My Mate’s a Primate’ advert in newspapers. The other campaigning NGOs which support the Applicant such as Amnesty International and the RSPCA have placed adverts on billboards, in underground stations and shown them in the cinema.

Third, the ban applies to everyone – not just to the rich and influential but also to the poor and those without other means of influencing opinion.  The sole exception is that which applies to established political parties. They are permitted to make “Party Political Broadcasts” at various times – not just during elections.  These broadcasts are free.  No campaigning group or party which is not contesting substantial numbers of seats at an election has this privilege.

It is obvious that the prohibition is a serious interference with the Article 10 rights of the Applicant. This is not in issue.  It accepted the prohibition is prescribed by law.  It pursues the legitimate aim of protecting the rights of others. 

So the sole issue is whether the blanket prohibition on “political advertising” as laid down by sections 319 and 321 of the Communications Act 2003 is necessary in a democratic society within the meaning of Article 10(2) – particularly in the light of the way in which this provision has been interpreted by the Court in three cases: VgT, Murphy and TV Vest.  We will return to these cases later.  They are decisive.  They show that a blanket restriction of this type cannot be shown to be necessary in a democratic society.

Even without these cases the point is crystal clear as a matter of principle.   A blanket ban on political advertising does not correspond to a pressing social need.  The measure is an unjustified and unjustifiable fetter on freedom of expression.  It restricts debate on matters of general interest without serving any proper or useful purpose.

The closing off from public debate of such an important medium of public communication is unhealthy and undemocratic. A vital feature of democratic life is the openness of the agora, a “public square” where all voices can be given a chance to be heard and where alternative views may be exchanged, and debate thrive in the marketplace of ideas.

We say 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” in this case for four reasons:

(1)          It is a restriction on political expression – which includes the advocacy of “law or policy change” and “social advocacy” – and so requires “strict scrutiny” by the Court.  Prior restraint of this kind must also be careful scrutinised. The margin of appreciation is a narrow one.  As emphasised in VgT this is reinforced by the fact that what is at stake is not the Applicant’s commercial interests but its participation in a debate affecting the general interest (para 71).  The broad margin of appreciation accorded to the domestic courts to the legislature is not appropriate – bearing in mind that this made up of political parties which benefit from the current regime.

(2)          There is a total prohibition on political advertising defined in an extraordinarily broad sense. “Political” covers party and election matters, but also “law or 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 such a wide prohibition.   As the Court noted in VgT a prohibition of political advertising which applies only to certain media and not to others does not appear to be of a particularly pressing nature (para 74).

(4)          Finally and importantly, in the specific factual circumstances of this case, the prohibition of an advertisement on a matter of general concern which is neither harmful nor offensive cannot be justified.  

The United Kingdom Government claims (at paragraphs 6 and 15 of its Memorial) that its only intent is to prevent the hijacking of public debate by the rich who, it is said, are the only ones who could afford the costs of broadcast advertisements.  But the broadcast ban silences all – rich and poor, NGO and oligarch.  But it leaves alone the power of the rich to own and monopolise the print media and to channel unlimited funds to political parties.  It leaves those, such as the applicant, with only limited funds no free choice as to how to spend their money in a way which is most effective to get their message across.

It is claimed that the legislation embodies a balancing of interests to prevent the “unfair distortion” of political debate.   But there is no balancing.  The ban is unfocussed.  It prevents alternative political groupings and social advocates from using the broadcast media to advance their causes and promote debate.  There is a “party monopoly” on broadcast advertising in political matters, which means that in the United Kingdom alternative voices – whether of the idealistic or of the disenchanted; of the depoliticised or the disenfranchised of the minority and the marginalised – are muffled, and often unheard.

This provision – in the very breadth of its actual and potential application – does not preserve the integrity of the democratic process but distorts it. It exerts a profoundly chilling effect – severely restricting the very possibility of even bringing matters to general public attention.

The points advanced by the United Kingdom Government (at paragraph 21 of its Memorial) to justify the blanket broadcast ban do not stand up to any proper proportionality scrutiny.

The United Kingdom Government makes four points.

First, that broadcasting is a uniquely powerful medium of communicating to the public at large – without analysis or comparison with other audio visual media and in particular the internet.

Second, that advertising on radio and/or television is particularly expensive.  But no comparative statistics for the costs of advertising in the cinema or in newspapers are adduced by in support.

Third, that a wholly unregulated market for the broadcasting of political adverts might be open to “the potential mischief of partial political advertising”

That, fourth as a result, to avoid this mischief of partiality it is necessary to have a statutory scheme which prohibits all paid-for broadcasting of political advertising.

But these matters provide no rational basis for the scheme.  By exempting political parties from this advertising ban and, indeed, providing them with free broadcasting opportunities to advertise their partial and partisan messages, the ban is, in itself, partial.  

Further, if the “partial political advertising” is such a problem in the United Kingdom, why then is it not prohibited or restricted in the press, on billboards – or in other “audio-visual” media like the cinema or the internet.

The reality is that “partial political advertising” is just another name for free speech.   There is no “view from nowhere”.   All speech is partial. What the regulation of political advertising in the UK does – and is intended to do – is to deprive disadvantaged and alternative groups an opportunity to advance their views using one of the most important and effective means of communication.  

Although television and radio are highly influential communications media they are no longer unique in their range and power – if they ever were.  The different regulatory regime which now applies is a matter partly of historic accident, and partly a testament to the lobbying power of the proprietors of newspapers.

It is claimed that the aim is “achieving balance on the broadcast media between different political viewpoints” (Memorial para 22(4)). If so, confining the right to broadcast to political parties and banning broadcasts by any other group having “political ends” in the broadest sense most certainly does not and cannot achieve that balance.

The approach of the domestic courts – and the United Kingdom government before the Grand Chamber – is wrongly based on the assumption that there are only two choices: a blanket ban on broadcast political advertising or its complete deregulation.  The House of Lords was misled by the constitutional jurisprudence of the US Supreme Court which takes an absolutist line on untrammelled free speech. The European constitutional order – both under the Convention and the Charter of Fundamental Rights – is very different.  It allows for – indeed requires – justified and proportionate restrictions on freedom of expression.

The decision of the Court in Murphy v Ireland does not assist the United Kingdom.  Religion is not politics.  It is a special case – with specific provision being made for it in Article 9 of the Convention. The expression of religious views gives rise to particular sensitivities and the Court recognised those sensitivities are particularly acute in Ireland. The distinction between religious and political speech is correctly relied on by the Court in TV Vest (paragraph 75) when it declined to apply the reasoning in Murphy to a ban on political advertising.

It is argued that as restrictions on political advertising may be justified at election times, Parliament and the domestic courts were entitled to conclude that a blanket ban was legitimate and justifiable at all times. This does not follow.  The integrity of the democratic process may well require special protection.  For example, restrictions may be placed on electoral expenditure – but similar restrictions are not placed on expenditure on all political campaigns outside election periods. In the same way, restrictions on advertising during election times and it cannot justify banning political advertising at all times.

The ban is on all and any broadcast advertising by any group whose objects are deemed to be “wholly or mainly of a political nature”.  This applies no matter what the content of the adverts or the nature of the advertiser.  It is grossly over-inclusive. 

The United Kingdom’s concerns about the difficulties in establishing and enforcing an alternative regulatory framework simply cannot provide a justification for the maintenance of the existing statutory ban. The fears expressed are based on an exaggerated apprehension as to the power of broadcast advertising to distort public debate – and a spurious floodgates argument which raises a spectre of rich interest groups seizing control of the political agenda by mean of broadcast advertising.  These fears are overblown.

The United Kingdom is not the United States, and a relaxation on the existing ban would not fatally undermine the democratic process.  As the 2006 EPRA survey makes clear, many other Council of Europe Member States manage, without any blanket ban, to reconcile within their regulatory frameworks the protection of free speech in political matters with maintaining a balanced political forum.

The political advertisement broadcast ban, in its current form, favours the political establishment which voted for it.   It cannot be said that the United Kingdom Parliament was acting in some impartial capacity in so legislating.  The measure is aimed at and seeks to ensure the preservation of the political status quo.  The bodies referred to in paragraph 28 of the Government’s submissions as supporting the ban are part of the existing political establishment. But “keeping things as they are” is not a proper form of justification of the purposes of Article 10 of the Convention.

The very issue which arises in this case was considered in the Vgt and TV Vest cases.  In those cases the Court held and confirmed that a total ban on political advertising is not necessary in a democratic society.  The following points of similarity should be noted:

  • As in the present case, the respondent governments sought to justify blanket bans in order to protect the public against powerful financial groups. 
  • As in the present case, the advertisements were inoffensive and not capable of lowering the quality of political debate.
  • As in the present case, the advertisers were not powerful financial groups.

The reasoning in VgT and TV Vest cases is directly applicable in this case. That reasoning is correct and should be followed. Contrary to the respondent Government’s claims (Memorial paras 30-35) there is no proper basis for distinguishing these cases from the situation of the Applicant. Nothing is said which warrants the Grand Chamber departing from those decisions.  

Those cases should be followed because they represent the correct analysis and application of the legal principles and it is in the interests of legal certainty and the development of the Court’s jurisprudence to do so. The Court should dismiss the respondent Government’s objections and, reaffirm its decisions in VgT and TV Vest.

The Applicant’s campaigns relating to the treatment of animals contribute to debates of general interest.  The Applicant should not be prevented from using all the effective campaigning tools which are available to it.  Democratic debate is not promoted by blankets bans and prohibitions.  The democratic process is best protected by focussed and proportionate measures which balance the interests of all.

For all these reasons and those set out in our Written Memorial, we invite the Court to declare this application admissible and to find that there has been a breach of Article 10 of the Convention.