R (On The Application of Animal Defenders International) V Secretary of State For Culture, Media and Sport (Respondent)

A statutory prohibition on paid political advertising on television and radio may be compatible with article 10 where it protects democratic debate from distortion by unequal wealth. The restriction must meet a pressing social need and be proportionate to the protection of others’ democratic rights.

The greater impact of broadcasting, the availability of other means of expression and the absence of a workable, less restrictive scheme supported the prohibition. A considered parliamentary assessment concerning the integrity of democracy attracts substantial weight. General legislation does not become disproportionate merely because its boundaries may produce difficult cases. Compatibility remains open at the margins where the advertisement or political connection differs materially from the conduct addressed by Parliament.

Animal Defenders International, a non-profit campaigning organisation, sought to broadcast a television advertisement supporting its campaign against the exploitation of primates. The Broadcast Advertising Clearance Centre declined to clear the advertisement because the organisation had mainly political objects and the advertisement pursued political ends within sections 319 and 321 of the Communications Act 2003.

The organisation sought judicial review and a declaration under section 4 of the Human Rights Act 1998 that section 321(2) was incompatible with article 10 of the European Convention on Human Rights. The Divisional Court refused a declaration in [2006] EWHC 3069 (Admin), also reported at [2007] EMLR 158, but granted a leapfrog certificate.

It was accepted that the prohibition interfered with freedom of expression, was prescribed by law and pursued the legitimate aim of protecting the democratic rights of others. The issue was whether the restriction was necessary in a democratic society.

1. Disposition. The House unanimously dismissed the appeal and refused the declaration of incompatibility. Lord Bingham of Cornhill delivered the leading speech. Lord Carswell and Lord Neuberger expressly agreed with his reasons. Baroness Hale agreed with them entirely, while Lord Scott agreed with the dismissal and Lord Bingham’s reasons but added reservations concerning possible marginal cases. No order for costs was made.
2. Article 10 test. Per Lord Bingham, the prohibition interfered with political expression and therefore required a high degree of justification. The state had to establish a pressing social need and a proportionate response to the legitimate aim of protecting the democratic rights of others. The small margin usually applicable to restrictions on political speech did not prevent the prohibition from satisfying that test.
3. Democratic equality. Per Lord Bingham and Baroness Hale, article 10 protects political communication, but democracy also requires a reasonably level field for public debate. Unrestricted purchase of broadcast advertising could permit wealthy political parties and interest groups to secure prominence through repetition rather than public argument. Parliament was entitled to protect the public against that distortion. The same rule had to apply irrespective of the popularity of the cause or the resources of the particular advertiser.
4. Proportionality of the prohibition. The special immediacy, pervasiveness and power of television and radio justified treating broadcasting differently from print and other media. A system based on expenditure, frequency, content or case-by-case approval could be circumvented, confer excessive discretion on officials and impair broadcasters’ impartiality obligations. Other media remained available, and campaigners could participate in broadcast programmes. These matters made the blanket restriction a proportionate response.
5. Parliamentary assessment. Per Lord Bingham, Parliament’s judgment deserved great weight because it concerned the integrity of democratic debate and followed detailed consideration of Convention compatibility and possible alternatives. Sections 319 and 321 of the Communications Act 2003 were general rules. Their validity depended on their effect in the round, not on whether difficult cases might arise at their margins.
6. Strasbourg authorities. The result in VgT Verein gegen Tierfabriken v Switzerland (2001) 34 EHRR 159 did not require a declaration. The United Kingdom prohibition rested on fuller consideration of democratic equality, broadcast impact and the impracticability of narrower controls. The reasoning in Murphy v Ireland (2003) 38 EHRR 212 supported the relevance of broadcast impact, alternative media and the difficulty of fair case-by-case regulation.
7. Limits and domestic treatment of Strasbourg authority. Lord Bingham reserved possible compatibility questions concerning advertisements unrelated to a political body’s objects or falling only within the public-controversy limb. Lord Scott similarly considered that hypothetical marginal incompatibilities did not justify a discretionary section 4 declaration where the applicant’s own rights had not been infringed incompatibly. In separate obiter, Lord Bingham, supported by the other members apart from Lord Scott’s reservation, reaffirmed that domestic courts should ordinarily follow clear and constant Strasbourg jurisprudence, although section 2 of the Human Rights Act 1998 does not make Strasbourg judgments strictly binding.

1. House of Lords: In [2008] UKHL 15, the House unanimously dismissed the appeal from the Divisional Court and refused a declaration of incompatibility.
2. Queen’s Bench Divisional Court: In [2006] EWHC 3069 (Admin), also reported at [2007] EMLR 158, Auld LJ and Ouseley J refused a declaration that section 321(2) of the Communications Act 2003 was incompatible with article 10. The court granted a leapfrog certificate under section 12(1) of the Administration of Justice Act 1969.