R (ProLife Alliance) v British Broadcasting Corporation

The House of Lords held that broadcasters lawfully apply the statutory and contractual prohibition on transmission of material "offensive to public feeling" to party election broadcasts (PEBs). The court confined its review to whether the broadcasters had applied the applicable standards (section 6(1)(a) Broadcasting Act 1990; paragraph 5.1(d) of the BBC agreement) lawfully and compatibly with Article 10 ECHR and the Human Rights Act 1998. The broadcasters had properly taken account of the political context but were entitled to refuse to transmit the original and two revised tapes because the cumulative, prolonged and graphic images of aborted foetuses would be offensive to large numbers of viewers and thus breach their obligation. The Court of Appeal erred by effectively re-writing the statutory prohibition and conducting its own proportionality balancing on the merits rather than assessing whether the broadcasters misapplied the legal standard.

This case concerned a judicial review challenge by the ProLife Alliance to the refusal of terrestrial broadcasters, including the BBC, to transmit a party election broadcast proposed for the 2001 general election. The proposed four minutes and forty seconds broadcast contained prolonged and graphic visual images of aborted foetuses. The broadcasters refused to transmit the original tape and two revised tapes, approving a later version containing no such images.

The claimant:

• Nature of the claim: expedited judicial review seeking to quash the broadcasters' decisions and require transmission of the proposed PEB in its original form.
• Procedural posture: Permission to apply for judicial review was refused by Scott Baker J (24 May 2001); the Court of Appeal allowed the appeal ([2002] 3 WLR 1080) and declared the BBC's refusal unlawful; the BBC appealed to the House of Lords ([2003] UKHL 23).

The issues framed by the House of Lords included whether statutory/contractual standards against offensive material applied to PEBs and, on the conceded assumption that they did, whether the broadcasters had applied the correct standard and acted lawfully and compatibly with Article 10 in refusing to transmit the tapes.

The court's reasoning:

• Article 10 does not confer an absolute right to use television; it protects against discriminatory, arbitrary or unreasonable denial of access to an important medium. The Alliance accepted that the offensive-material restriction was not per se incompatible with Article 10.
• The proper analysis distinguished (i) the legitimacy of applying taste and decency standards to PEBs and (ii) the narrower question whether the broadcasters misapplied those standards in this case. The Court of Appeal conflated those questions and undertook its own balancing inconsistent with Parliament's statutory scheme.
• The House of Lords concluded Parliament could require PEBs to meet generally accepted taste and decency standards and that, applying those standards with regard to context and public expectations, the broadcasters’ decisions were within the permissible range of judgment. Accordingly the appeal was allowed and the broadcasters' refusals were lawful.

Appeal allowed. The House of Lords held that (i) Parliament legitimately applied standards of taste and decency (section 6(1)(a) Broadcasting Act 1990; paragraph 5.1(d) BBC agreement) to party election broadcasts; and (ii) on the conceded premise that those standards applied, the broadcasters lawfully exercised their judgment in rejecting the original and two revised broadcasts containing prolonged graphic images of aborted foetuses. The Court of Appeal erred by substituting its own proportionality balancing and thereby mischaracterising the legal question before it.

Permission to proceed refused by Scott Baker J (24 May 2001). Court of Appeal allowed ProLife Alliance's appeal: [2002] 3 WLR 1080 (also reported as [2002] EWCA Civ 297). Leave to appeal to the House of Lords granted; House of Lords allowed the BBC's appeal: [2003] UKHL 23.