Ban on political advertising to be challenged

20 October 2005

Animal Defenders International represented by Bindman & Partners have been given permission to challenge the Government over the ban on political advertising in broadcast media.  The ban prevents thousands of campaigning organisations from advertising on radio and television – including organisations with no formal political affiliation whose aim is only “to influence public opinion on a matter of controversy”.

The Government has conceded that permission should be granted and the Court is expected to hear the case early in the New Year when the Government will defend the ban.

Tamsin Allen of Bindman & Partners said “The European Convention on Human Rights guarantees the right to freedom of expression.  The current ban on political advertising means that campaigning organisations with no connection to any political party may not use broadcast media to raise money or to campaign on issues.  This is unfair, particularly when the other side of the argument may be broadcast by commercial organisations.  We are confident that the challenge will succeed, opening the way for thousands of organisations to advertise on tv and radio and to benefit from the new developments in interactive tv”

Jan Creamer, chief executive of ADI, commented “This concerns the exercise of free speech, which there is no justification in prohibiting.   The BACC refused our advertisement on the basis that our aims are ‘political’.  In summary, the protectionist approach towards the public and public opinion, together with the imbalance in engaging the voice of broadcast advertising, cannot be upheld as necessary in a democratic society.”

These proceedings follow two other recent adverse rulings against campaign groups.  The Make Poverty History coalition reacted with dismay to the ruling by Ofcom, that their campaign was prohibited from advertising on television or radio as it considered ‘its political aims to be in breach of broadcast regulations.’  Oxfam’s Adrian Lovett, a member of the Make Poverty History coordination team, commented: “We’re disappointed with this decision.  Members of the coalition went to great lengths to ensure the ‘click ad’ met broadcast regulations and took appropriate advice before submitting it to broadcasters.”

Background

• ADI have issued a claim for judicial review against the Department of Media Culture and Sport which is responsible for the Communications Act 2003.
• It is asking the Court to declare that the ban on political advertising in the Act is incompatible with the right to freedom of expression under Article 10 of the European Convention on Human Rights
• It will rely on case law from the European Court of Human Rights which has declared a very similar ban in Switzerland to be incompatible with Article 10
• Ministers are now required to certify whether or not all new legislation is compatible with the European Convention. At the time the Communications Act went through Parliament the Minister was not able to certify that the ban is compatible
• Permission for judicial review was conceded by the DCMS and agreed by the Judge. The case will now go to a full hearing
• ADI will argue that the ban is too widely drafted – it includes organisations whose aim is to influence public opinion on a matter of controversy.  ADI will say that the ban is not a justified interference with the right to freedom of expression because it is unnecessary and disproportionate.  It will also argue that it creates an unfairness so that, for example, an oil company can broadcast a vanity advertisement claiming that it takes care of the environment, but environmental organisations cannot respond in the broadcast media.
• The RSPCA and Amnesty International have previously challenged the ban before the enactment of the Human Rights Act.  Make Poverty History have also recently been prevented from using broadcast media by the ban.
• If successful, the Court will make a finding that the ban violates the right to freedom of expression and that the relevant provisions of the Communications Act 2003 are incompatible with the rights guranteed by the Convention
• The next stage would be that the Government will either have to amend the legislation immediately, or face proceedings in Strasbourg which would almost certainly come to the same conclusion in which case the Government would then be obliged to take steps to remedy the violation of Article 10.
• Ultimately the result is expected to be an amendment to the legislation so that those currently defined as political organisations (although possibly not political parties) would be entitled to use broadcast media to advertise