British Political TV ads — courtesy of Europe?

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.

Tagged as: audio-visual media, Britain, broadcast advertising, broadcast media, European Court of Human Rights, House of Lords, Le Monde, Le Monde SA, Norway, Norwegian Government, Pensioners Party, political advertising, religious advertising, Russ Taylor, Switzerland, UK Government, United Kingdom, United States