R (Animal Defenders International) v Culture Secretary

Facts

Animal Defenders International, a campaigning organisation, prepared a television advertisement about the treatment of primates in captivity. The body responsible for clearing broadcast advertisements refused to clear it, because the organisation had objects of a wholly or mainly political nature, and s 321(2) of the Communications Act 2003 prohibits political advertising on television and radio.

History

The organisation claimed in the Administrative Court that the ban was incompatible with Article 10 of the European Convention on Human Rights and sought a declaration of incompatibility under the Human Rights Act 1998. The Administrative Court rejected the claim, and the organisation appealed to the House of Lords.

Issue

Whether the prohibition on political advertising in s 321(2) of the Communications Act 2003, as applied to the claimant, was a disproportionate interference with the right to freedom of expression under Article 10, so as to justify a declaration of incompatibility.

Held

Appeal dismissed. The prohibition pursued a legitimate aim and was proportionate, so there was no incompatibility with Article 10.

Ratio

• A general prohibition on paid political advertising in broadcast media may be a justified and proportionate interference with freedom of expression, since it protects the democratic process from distortion by those with the most money, and the courts should give weight to the considered judgment of Parliament that the rule is necessary and workable.

The judgments

Key reasoning

• The aim of the ban was to prevent the political process being distorted by the unequal ability of groups to purchase advertising time, a legitimate aim in a democratic society.
• Parliament had given the question detailed consideration, with scrutiny by committees and debate, including consideration of human rights compatibility, and this deserved weight.
• A general rule was justified because case by case regulation would be uncertain and difficult to administer, and the ban applied only to paid advertising on television and radio, leaving other means of communication open.
• The decisions of the European Court of Human Rights in VgT Verein gegen Tierfabriken v Switzerland (2001) 34 EHRR 159 and Murphy v Ireland (2003) 38 EHRR 212 did not require a different result.

Where it fits in the module

The topic on section 19 of the Human Rights Act 1998 concerns scrutiny of proposed legislation for compatibility. The bill that became the 2003 Act was introduced with a statement by the minister that she could not say it was compatible with Convention rights but the government wished to proceed. The House of Lords gave weight to the fact that Parliament had considered the question carefully, which raises the debate on the relationship between legislative scrutiny and judicial review and whether courts should defer.

Criticisms

• Relying on parliamentary consideration as a reason for deference is questionable where the minister said that compatibility could not be certified, since the debate did not resolve the doubts.
• A blanket ban catches non-partisan campaigning by groups unconnected to political parties, so it is arguably not necessary to protect the democratic process and is disproportionate.
• Treating a bright line rule as justified on grounds of administrative convenience gives too little weight to freedom of expression on matters of public concern, which deserves the highest protection.