April 24, 2013
This guest post was written by Ronan Ó Fathaigh*
On Monday, the Grand Chamber of the European Court held, by nine votes to eight, that the UK’s ban on political advertising on television did not violate Article 10. The majority opinion in Animal Defenders International v. the United Kingdom departed substantially from the Court’s previous case law on political advertising, and introduced a new method for reviewing the proportionality of such blanket-bans.
The facts were straightforward, with the applicant association submitting an advertisement for broadcast on television showing a girl playing a primate in a cage, with a voice-over describing the ill-treatment of primates. It was no surprise that the Broadcast Advertising Clearance Centre concluded the advertisement breached the Communications Act, which prohibits advertisements “directed towards a political end.” The case reached the House of Lords in 2007, and at that time there were two main authorities from the European Court that the law lords considered:
First, there was the 2001 VgT v. Switzerland judgment, which was near identical to Animal Defenders, where a unanimous Second Section of the Court held that the Swiss ban on political advertising, as applied to an animal rights group wishing to broadcast an issue-advertisement, violated Article 10. The Court in VgT reviewed the usual rationales for political advertising bans, namely (a) the anti-distortion rationale i.e. preventing financially powerful groups distorting public debate; and (b) power of broadcasting rationale i.e. because the broadcast media is such an influential media, it may be subject to greater government regulation. The Court concluded that while these rationale were relevant, “general justifications” were not sufficient to justify application of the ban to a small animal rights group. The judgment in VgT led to a relaxed ban for social advocacy groups in Switzerland, and other Council of Europe states like Denmark with similar blanket-bans followed suit.
However, the law lords chose not to follow VgT, describing it as “somewhat opaque,” with “arguably aberrant reasoning.” They instead chose to follow the European Court’s 2003 Murphy v. Ireland judgment, where a unanimous Third Section had held that a blanket-ban on religious advertising did not violate Article 10. The Court in Murphy distinguished VgT on the basis that there should be a wider margin of appreciation when regulating speech within “the sphere of morals” and religion; and on the basis of the “nature and level of the religious sensitivities” in Ireland, with the Court rejecting the argument there should be a more relaxed ban for innocuous advertisements about religious events. However, depending on how one read Murphy, some rationale rejected in VgT seemed to have been accepted in Murphy. Consequently, the House of Lords held the ban on political advertising did not violate Article 10, based mainly on the anti-distortion and power of broadcasting rationale, coupled with a deference to parliament.
Following the House of Lords judgment in 2007, the supposed question mark over the authority of VgT came to a head in 2008, when the European Court announced it was reviewing the application of a Norwegian blanket-ban on political advertising, as applied to a small pensioners political party. Ireland and the United Kingdom both submitted third-party comments in TV Vest v. Norway, fearing their own continued blanket-bans on political advertising would be in doubt. They argued Murphy should be preferred to VgT. However, a unanimous First Section held that the blanket-ban, as applied to the pensioners political party, and the fine imposed on a broadcaster for broadcasting a political advertisement, violated Article 10. Crucially, the Court approved and followed VgT, applying a “strict scrutiny” standard of review, distinguishing Murphy on the basis that “it was [religious] sensitivities that led the Court to” apply a lower standard of scrutiny, and accept the argument that a relaxed ban would be difficult to apply to religious advertising.
Thus, when the applicant in Animal Defenders submitted its application to the European Court, it seemed probable that a violation was forthcoming given the holdings in VgT and TV Vest, and the House of Lords’ seemingly misplaced preference for Murphy over VgT. Indeed, there were no questions from any of the 17 judges at the hearing held in March 2012. However, as the months dragged on, this suggested there was unease within the Court about following VgT and TV Vest, and this unease ultimately resulted in a 9-8 vote for no violation.
The majority opinion begins not with a discussion of VgT, Murphy, or TV Vest, but instead begins with the Court setting down a new controlling doctrine for analysing the ban: it categorised the ban at issue as a “general measure”. According to the Court, “general measures” are rules which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases.” The Court then laid down a three-step test to determine the proportionality of a “general measure,” where the Court must assess (a) the “quality” of the parliamentary and judicial review of the necessity of the measure; (b) the legislative choices underlying the general measure, and (c) any risk of abuse if a general measure is relaxed.
Framing the question for analysis as one involving “general measures” allowed the Court to reject the applicant’s submission that the central question was whether less restrictive rules could have been adopted, but rather the “core issue” was whether in adopting the general measure and striking the balance it did, the legislature “acted within its margin of appreciation.” Thus, in one fell swoop, the Animal Defenders majority brought a widened margin of appreciation right into the mix, which had been absent in both VgT and TV Vest.
The Court then examined the proportionality of the ban, applying its new three-step test for assessing “general measures.” First, with regard to the quality of parliamentary and judicial review, the Court “attached great weight” to the “extensive pre-legislative consultation,” referencing a number of parliamentary bodies which had examined the ban, and praised the UK courts for “carefully applying” the jurisprudence.
Second, examining the underlying rationale for the ban, the Court accepted the anti-distortion rationale, holding that there was a “risk of distortion” of public debate by wealthy groups having unequal access to advertising. Moreover, the Court rejected the argument that the ban was illogical because it did not apply to the internet, holding that the broadcast media still had an “immediate and powerful effect,” with the internet not having the same “synchronicity or impact.” Third, as regards the risks from relaxing a general measure, the Court held it was “reasonable” for the government to fear a relaxed ban was not feasible, given the “risk of abuse” in the form of wealthy bodies “with agendas” being fronted by social advocacy groups, leading to uncertainty and litigation.
Finally, the Court held that the impact of the ban outweighed the general justifications for the general measure, noting that the applicant could use alternative means of communication, such print media, the internet, protests, and flyers. The Court concluded that the reasons for the ban were “relevant and sufficient,” and there was therefore no violation of Article 10.
It is clear the categorisation of the political advertising ban as a “general measure” was a novel approach by the majority, not featuring in any of the previous cases on issue advertising, and allowed the Court to apply a more deferential standard of review. The question does arise as to where the majority got the idea for this approach, and it seems it was picked up from the short reference in the government’s brief at page 23 to the 1986 James v. the United Kingdom judgment, that “bright lines” may be permissible (James involved legislation that allowed tenants to purchase their landlord’s interest in a property after a certain period).
The majority argued that its general measures approach “draws on elements of its analysis” from VgT, Murphy and TV Vest. Curiously, however, the majority omitted any individual paragraph references to these cases as authority for this proposition. Further, there is no hint in these cases to a general measures-type analysis, coupled with a lack of reference to any of the general measures case law the majority in Animal Defenders discusses.
This raises a further question about the question to the parties communicated by the Court: “was the interference with the applicant association’s right to freedom of expression … ‘necessary in a democratic society’ within the meaning of that Article (VgT v. Switzerland, Murphy v. Ireland, TV Vest v. Norway).” The applicant’s brief focused on VgT, Murphy and TV Vest, with no real discussion of general measures case law. Had the Fourth Section not relinquished jurisdiction to the Grand Chamber at the outset, the surprise in store could have been subjected to critique and full argument in any subsequent appeal to the Grand Chamber.
Finally, and on a side-note, the Court now seems to have accepted the anti-distortion rationale for allowing a state to regulate a medium of expression. If this principle is actually taken seriously, the greatest distortion of public debate comes not from broadcasting, but from the press. Newspapers may be owned by immensely wealthy individuals or corporations, with a small editorial board setting the agenda for public discourse. On the basis of Animal Defenders, it is not clear whether a law banning editorialising in the press during an election period raises any question under Article 10.
*Rónán Ó Fathaigh is a PhD researcher at the Human Rights Centre. More information on Rónán Ó Fathaigh can be found on the website of the Center for Journalism Studies of Ghent University, here