In the case of R (London Christian Radio Ltd and Anor) v Radio Advertising Clearance Centre ( EWHC 1043 (Admin)) the High Court has upheld the refusal of the broadcasting regulator to clear an advertisement for transmission on the grounds that it offended the prohibition on political advertising.
This restriction, said Silber J, was a necessary one for the purposes of Article 10(2) of the European Convention. The purpose of the ban on political advertising was to protect the public from the potential mischief of partial political advertising, and the views of the advertiser, as to whether an advertisement was political, were irrelevant.
The claimants were a Christian radio company and a Christian publisher respectively. They sought to publish an advertisement on the radio noting the marginalisation of Christians in the workplace and informing listeners that the advert was “seeking the most accurate data to inform the public debate” and to “help make it a fairer society”. RACC refused to clear the advertisement for airing as it was of the view that the advertiser intended to use the information provided to influence or change government policy. As such, the material offended the prohibition on political advertising under the Communications Act 2003.
The claimant companies applied for judicial review of RACC’s refusal, contending that the refusal and the relevant legislation interfered with their rights under Article 10 and that the provisions should be either “read down” to conform with their right to free speech, or that they should be declared incompatible with the Convention and disapplied. Their application was refused.
The Court’s reasoning
Silber J considered the case of R (Animal Defenders International) v Secretary of State for Culture, Media and Sport  UKHL 15 and concluded that even though that case is awaiting a ruling from the Grand Chamber in Strasbourg, he was bound by the House of Lords’ ruling that the prohibitions on political advertising contained in sections 319 and 321 of the 2003 Act were justified as being necessary in a democratic society and therefore compatible with Article 10. The Strasbourg ruling that went the other way, in the commercial pig farming case of VgT Verein gegen Tierfabriken v Switzerland (24699/94) (2002) 34 EHRR 4, had been described as “controversial” and “opaque”.
The established view was that radio and television advertising were areas where a degree of control was to be expected (R (ProLife Alliance) v BBC  UKHL 23) The purpose of the ban on political advertising was to ensure that the public were protected from that form of advertising, irrespective of the views, or motives, of the advertiser. There was nothing in the wording of the legislation which showed that the intent of the advertiser had any relevance. Applying an objective test, the instant advertisement sought to obtain information which would be used to try to make changes to society and would fall within sections 321(3)(b), 321(3)(c), 321(3)(d) or 321(3)(f) of the Communications Act . Whilst the meaning of the statutory provisions were ultimately a question for the court, RACC was the appropriate decision maker on whether the advertisement should be cleared and its decision to refuse clearance could not be classed as irrational.
It is serendipitous and somehow telling that this ruling was handed down within weeks of Transport for London scrapping a series of advertisements promoted by a Christian organisation implying that therapy could change sexual orientation. These were in response to Stonewall adverts, also on London buses, which promoted gay marriage rights with the slogan ”Some people are gay. Get over it!”. Although this was essentially a scrap between two opposing organisations and did not involve advertising regulation as such, it serves to show that much of the deliberation about whether an advertisement goes beyond the prohibited borders of “political” promotion is confounded by the very mischief the legislation seeks to avoid: the content of the message itself.
Certainly we need regulation to prevent deep purses from determining the broadcast agenda which makes us vulnerable as listeners to certain argumentative ploys. But the London bus saga nicely illustrates the problem at the heart of this strategy. If you vigorously support the restriction of Core Issue Trust’s “anti-gay” message, you may be in good company – Boris Johnson, amongst others – but how can you by the same principle be against restricting Stonewall’s promotion? The substance of the material is not in issue here; it is the aim of the advertising, to forge changes in society’s attitudes. It is no good trying to wriggle off the horns of this dilemma by drawing distinctions between the two messages, arguing that the one you favour is more deserving of an airing than the other.
So it is with the application of the Communications Act criteria, which is meant to be free of content bias. It invariably comes down to preferences and the judgment as to which messages fall foul of the Act’s prohibition is inevitably impure. A line is drawn in the context of one situation such as the instant case, but the likelihood is it will be drawn differently when the situation and the participants change.
It is precisely because Article 10 offers no guidance in this dilemma that we have the Strasbourg Court going one way (VgT Verein) and the House of Lords the other (Animal Defenders) in factually similar circumstances. This is why the Animal Defenders International (ADI) group have deemed it worthwhile to take their case to Strasbourg, complaining that the prohibition of their TV screening of primates in zoos, circuses and laboratories goes too far and is not necessary in a democratic society. The focus of ADI’s attack is on a statutory prohibition (section 321(2)(b) of the Communications Act) which applies not only to advertisements which have a political content, but also to those promoted by a political body irrespective of the advertisement’s content. And the House of Lords accepted the argument that ADI was political because it had no charitable status. The Grand Chamber may well agree. But the abstract rights on which they will base their opinion tell us nothing about how the Communications Act is meant to protect viewers against harassment by animal rights activists (how could it be, since no-one is actually harassing anybody in TV advertisment that can be switched off).
Most utterances work to advance some interests as defined by some agenda, at least in the very broad sense contained in the Act. Therefore all kinds of utterances should, strictly speaking, fall foul of its prohibition. The act of choosing which ones do and which ones don’t is concealed in this case, as it is in all the others, behind a smokescreen of higher arguments about democracy and public rights. The outlines of both the 2003 Act and Article 10 are so unclear it is not at all obvious what are the benefits of the first and the legitimacy afforded it by the latter.
In consequence, this debate forces the question whether there is, in truth, any form of issue-driven speech that is not political, if “political” is so broadly defined as to cover anything has consequences. If all such programming were to be denied access to TV or radio we would have no broadcast speech free of consequences; in other words, no Panorama, no Analysis, certainly no You and Yours. Just the incessant pabulum of reality series and game shows, and the wild west of the internet, where all kinds of verbal behaviour run completely unchecked.
This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks