The European Court of Human Rights could be green­light­ing the kind of polit­ical advert­ising that the United States has grown used to.

Russ Taylor at Ofcom­watch aler­ted me to the rul­ing.

My caveats?

• The Gov­ern­ment doesn’t want it
• News­pa­pers don’t want it
• Polit­ical parties can’t afford it.

Remem­ber too that Brit­ish polit­ical advert­ising is a state gra­tu­ity dis­pensed to favour the parties voted for in pre­vi­ous elec­tions (itself pro­foundly unfair).

The back­ground? Nor­way bans polit­ical advert­ising on TV. Back in 2003 its reg­u­lator fined TV Vest for air­ing polit­ical ads by mild-mannered act­iv­ists the Pen­sion­ers Party. TV Vest appealed and lost every step of the way, except today.

Here in Bri­tain, HMG — in the form of an obli­ging civil ser­vant — sub­mit­ted this to the court:

54. The UK Gov­ern­ment provided inform­a­tion about the legal pos­i­tion in the United King­dom, where polit­ical advert­ising had been pro­hib­ited on radio and tele­vi­sion by all legis­la­tion since the Tele­vi­sion Act 1954 had cre­ated com­mer­cial tele­vi­sion. When enact­ing the Com­mu­nic­a­tions Act 2003, Par­lia­ment had taken the view that it was import­ant to main­tain the pro­hib­i­tion because: (1) Broad­cast­ing was a par­tic­u­larly power­ful and per­vas­ive medium and impar­ti­al­ity was of fun­da­mental import­ance. (2) Without the pro­hib­i­tion there would be an unac­cept­able danger that the agenda of polit­ical debate would be unfairly dis­tor­ted in favour of the views held by those wealthy enough to spend most on broad­cast advert­ising. Those with a dif­fer­ent point of view would either have to find rich back­ers to pay for equal time, or allow the case to go unanswered. (3) The pro­hib­i­tion applied to all polit­ical advert­ising, irre­spect­ive of con­tent. There was no dis­crim­in­a­tion by ref­er­ence to con­tent of the message.

55. The UK Gov­ern­ment invited the Court to con­fine VgT [Vgt Ver­ein gegen Tier­fab­riken v. Switzer­land (no. 24699/94, ECHR 2001-VI)] to its fac­tual cir­cum­stances or altern­at­ively to depart form [from?] its reas­on­ing. In that case the Court had rejec­ted without explan­a­tion or ana­lysis the con­ten­tion that the potency and per­vas­ive­ness of the broad­cast media jus­ti­fied spe­cial restric­tions on polit­ical advert­ising not applic­able to other media. The Court had fur­ther omit­ted to take account for the sig­ni­fic­ance of the avail­ab­il­ity of altern­at­ive means of allow­ing the applic­ant to pur­sue its polit­ical object­ives. Nor did it address the point that advert­ising could dam­age the impar­ti­al­ity of the broad­caster, an argu­ment which it accep­ted in Murphy with respect to reli­gious advert­ising. The Court appeared to have mis­un­der­stood the jus­ti­fic­a­tion for a ban on polit­ical advert­ising, namely the fact that such a ban could not dis­tin­guish between dif­fer­ent groups by ref­er­ence to power, funds or influ­ence which they happened to have at a par­tic­u­lar time. The legis­lature should be entitled to con­clude that there was no work­able basis for such a par­tial pro­hib­i­tion. Nor had the Court addressed, far less answered, the point that the legis­lature was seek­ing to pro­tect a fun­da­mental interest of a demo­cratic soci­ety; that polit­ical debate and the polit­ical pro­cess should not be altered by those who were able and will­ing to spend large sums of money propagat­ing their polit­ical views through the potent medium of broad­cast­ing. In Bow­man [inter alia Bow­man v. United King­dom (judg­ment of 19 Feb­ru­ary 1998, Reports of Judg­ments and Decisions 1998-I, pp. 1898-189, § 43)], the Court had recog­nised this as a legit­im­ate aim which could jus­tify restric­tions on free­dom of polit­ical speech. In VgT the Court had also omit­ted to refer to the fact that Switzer­land was far from an isol­ated example of a State with legis­la­tion pro­hib­it­ing the broad­cast­ing of polit­ical advert­ising when such restric­tions were not applied in other media.

56. Like Bow­man, the present case did not simply con­cern restric­tions on polit­ical speech; it con­cerned a bal­ance between free­dom of expres­sion for polit­ical speech and the need to pre­serve the integ­rity of the demo­cratic pro­cess in the pub­lic interest, a mat­ter in which the State had a mar­gin of appre­ci­ation. In any event, there was no clear dis­tinc­tion in this con­text between reli­gion and mor­als, on the one hand, and polit­ics on the other.

57. The UK Gov­ern­ment sub­mit­ted a copy of a judg­ment handed down by the House of Lords on 12 March 2008 ([2008] UKHL 15) dis­miss­ing an appeal by Animal Defend­ers Inter­na­tional, find­ing that the pro­hib­i­tion on the broad­cast­ing of polit­ical advert­ising in the UK under the Com­mu­nic­a­tions Act 2003 was con­sist­ent with Art­icle 10 of the Convention.

Now the judg­ment, under these terms:

[T]he Court’s task in exer­cising its super­vis­ory func­tion is not to take the place of the national author­it­ies but rather to review under Art­icle 10, in the light of the case as a whole, the decisions they have taken pur­su­ant to their power of appreciation.

Seems to throw this out:

76. … the fact that the audio-visual media has a more imme­di­ate and power­ful effect than other media (see Jersild, cited above, § 31), albeit an import­ant con­sid­er­a­tion in the assess­ment of pro­por­tion­al­ity (see Murphy, cited above, § 69), could not jus­tify the dis­puted pro­hib­i­tion and fine imposed in respect of the broad­cast­ing of the polit­ical advert­ising at issue (see VgT, cited above, § 74).

77. The view expounded by the respond­ent Gov­ern­ment, sup­por­ted by the third party inter­ven­ing Gov­ern­ments, that there was no viable altern­at­ive to a blanket ban must there­fore be rejected.

78. In sum, there was not, in the Court’s view, a reas­on­able rela­tion­ship of pro­por­tion­al­ity between the legit­im­ate aim pur­sued by the pro­hib­i­tion on polit­ical advert­ising and the means deployed to achieve that aim. The restric­tion which the pro­hib­i­tion and the impos­i­tion of the fine entailed on the applic­ants’ exer­cise of their free­dom of expres­sion can­not there­fore be regarded as hav­ing been neces­sary in a demo­cratic soci­ety, within the mean­ing of para­graph 2 of Art­icle 10 for the pro­tec­tion the rights of oth­ers, not­with­stand­ing the mar­gin of appre­ci­ation avail­able to the national author­it­ies. Accord­ingly, there has been a viol­a­tion of Art­icle 10 of the Convention.

But, I’m not a law­yer. And nor are law­yers. When it comes to polit­ics — they’re law makers.

Do any news out­lets like the story? Inter­est­ing to see that at time of writ­ing only Le Monde (rather badly — they mess up the judg­ment) and the Nor­we­gian media have covered this so far.