Strasbourg backs UK on political advertising

The European Court of Human Rights has backed the UK government over restrictions on political advertising, ruling that they are not a breach of rights to freedom of expression.

Animal Defenders International (ADI), which campaigns against cruelty to animals, launched a judicial review after its 'My Mate's a Primate' TV advert was turned down for broadcast under section 321(2) of the Communications Act 2003.

The Broadcast Advertising Clearance Centre's decision was upheld by the High Court in 2006 and the House of Lords in 2008 before it reached Strasbourg in March last year.

Ruling in Animal Defenders International v UK (application no.48876/08), the ECtHR heard that the TV advert was aimed at the "keeping and exhibition of primates", particularly in TV advertising.

The judges said the advert began with "an image of an animal's cage in which a girl in chains gradually emerged from the shadows". The screen went black and among the messages which followed was 'a chimp has the mental age of a four year-old'.

Although it cannot be shown on TV, the advert "could and can" be viewed on the internet, the judges said.

The majority of the ECtHR held that, despite the 'significant development' of the internet, there had not been a "significantly serious shift" to undermine the need for special measures for TV and radio.

The court underlined that there was "no European consensus between contracting states on how to regulate paid political advertising in broadcasting".

Instead, while there was a trend away from "broad prohibitions", there was a "substantial variety of means employed by the contracting states to regulate such advertising, reflecting the wealth of differences in historical development, cultural diversity, political thought and, consequently, democratic vision of those states".

The judges said the lack of consensus broadened the margin of appreciation to be accorded to states on freedom of expression.

The majority concluded that the UK's restriction on political advertising could not be considered to amount to a "disproportionate interference with the applicant's right to freedom of expression".

The court concluded that there had been no violation of article 10.

Sir Nicolas Bratza, the British judge and president of the court until November 2012, issued an additional concurring judgement.

"It is, as Lord Bingham noted, reasonable to expect that democratically-elected politicians will be particularly sensitive to the measures necessary to safeguard the integrity of democracy," Sir Nicolas said.

"The impact of broadcasting on the topics, framework and intensity of political debate is one which the legislature is best placed to assess, as it is in deciding what restrictions are necessary to ensure the political process is not distorted."

Sir Nicolas said it was not a "fair criticism" of the High Court and House of Lords judgments to say that they were "over-deferential to the view of parliament".

He concluded: "The role of the Strasbourg court in a case of this kind is not to carry out its own balancing test or to substitute its own view for that of the national legislature, based on independent scrutiny, as to whether a fair and workable compromise solution could be found which would address the underlying problem or as to what would be the most appropriate or proportionate way of resolving that problem.

"Its role is rather, as the judgment makes clear, to review the decision taken by the national authorities in order to determine whether in adopting the measures in question and in striking the balance in the way they did, those authorities exceeded the margin of appreciation afforded to them."

Tamsin Allen, partner at Bindmans, acted for ADI. She described the advertising ban as a "harsher constriction of freedom" than was necessary in a democratic society.

"Freedom of expression is based on the assumption that the speakers, not the government, know best what they want to say and how best to say it."