Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights (ECtHR) in its judgment ruled that the U.K. did not violate freedom of speech by banning political advertisements on television and radio because this did not ban all political speech – only advertisements, and there were other avenues available through which these political advertisements could still be expressed other than television and radio. The Court utilized a balancing approach and looked at “the applicant NGO’s right to impart information and ideas of general interest which the public is entitled to receive with, on the other, the authorities’ desire to protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media.” The Court said that bans on political speech may be upheld if the government can meet the requirement of proportionality when balanced with the necessity of the regulation as opposed to the freedom of speech rights threatened under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Facts

Animal Defenders International (“ADI”) originated this case against the United Kingdom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This involved a proposed advertisement that ADI wished to air on television regarding the abuse of chimps in entertainment. The advertisement was submitted to the Broadcasting Advertising Clearance Centre which declined to approve the advertisement because it was primarily political in nature and therefore violated section 321(2) of the Communications Act. ADI appealed this decision arguing that the prohibition on political advertisements violated Section 4 of the Human Rights Act. The High Court dismissed ADI’s claim. This was then appealed to the House of Lords which again dismissed the claim. The case finally was brought before the European Court of Human Rights.

Decision Overview

The parties stipulated that the prohibition on political advertising interfered with their rights as a matter of law. Therefore, the issue for the Court was whether this interference was necessary in a democratic society. The Court utilized a balancing approach and looked at “the applicant NGO’s right to impart information and ideas of general interest which the public is entitled to receive with, on the other, the authorities’ desire to protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media.” To accomplish this the Court looked at the necessity and proportionality of the Act in comparison to the threatened freedom of speech violations. The history of the Act showed that the parliamentary and judicial branches gave great thought to reviewing the constitutionality of the Act, this was not an all out ban on political speech (only advertising) and the forum was limited to television and radio. Therefore, the Court ruled there was no violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The concurring opinion resonated the majority’s analysis and added the historical ban that the United Kingdom has had on political and religious advertising. Further, the concurrence emphasized that the particular facts of each case are relevant for the balancing test of necessity and proportionality as applied to the individual applicant. Although the protections of freedom of speech are paramount this is not a general prohibition because it only bans one mode of political expression in one media outlet.

The dissent disagreed, stating that the case was analogous to VgT Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001‑VI), cited repeatedly by the majority, which ruled a general prohibition on political advertising to be a violation of freedom of speech. The dissent stated that the facts of these cases were virtually identical and the court should not be applying different standards to different countries.