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