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

The appellant, a campaigning non-profit organisation, sought a declaration under section 4 of the Human Rights Act 1998 that section 321(2) of the Communications Act 2003 (read with section 319) was incompatible with article 10 of the European Convention on Human Rights because it imposed an unjustified restraint on political expression.

The House accepted that article 10 was engaged and that the measure pursued the legitimate aim of protecting the democratic rights of others, but held that the prohibition on political advertising in television and radio was "necessary in a democratic society". The court emphasised the particular potency and immediacy of broadcast media, the broadcasters' duty to preserve due impartiality, Parliament's careful consideration of alternatives (including the government's view that workable, proportionate alternatives were not practicable) and the absence of a clear European consensus. The Strasbourg decision in VgT was treated as fact-specific and not determinative.

The appellant, Animal Defenders International, campaigned against use of animals and proposed a television advertisement as part of its "My Mate's a Primate" campaign. The Broadcast Advertising Clearance Centre declined to clear the advert on the ground that it contravened the statutory ban on political advertising because the appellant's objects and the advert were directed towards political ends under sections 319 and 321 of the Communications Act 2003. The appellant sought a declaration under section 4 of the Human Rights Act 1998 that section 321(2) was incompatible with article 10.

The procedural history was that the Divisional Court refused the declaration ([2006] EWHC 3069 (Admin)) and the case came to the House of Lords on a leapfrog certificate.

The principal issues were (i) whether the statutory prohibition was a restriction prescribed by law that pursued a legitimate aim, and (ii) whether it was "necessary in a democratic society" (proportionate), taking into account the narrowed margin of appreciation for restrictions on political speech. The court accepted the engagement of article 10 and that the aim—protecting the rights of others by preserving a level playing field in democratic debate—was legitimate. The House analysed (a) the stronger effect of television and radio compared with other media, (b) the broadcasters' duty of impartiality, (c) the practical difficulties of devising workable and non-arbitrary alternative controls (time, frequency, expenditure caps, identification), and (d) the judgment of Parliament and government evidence that alternatives would be unworkable and would permit substantial political advertising. The House noted Strasbourg jurisprudence, including VgT and Murphy, but treated Strasbourg decisions as material and fact-sensitive rather than absolutely binding. The court concluded that the ban was proportionate and necessary in a democratic society and dismissed the appeal.

Nature of relief sought: a declaration of incompatibility under section 4 Human Rights Act 1998. Issues framed: engagement of article 10, legitimacy of aim, necessity/proportionality, margin of appreciation, and availability of less restrictive alternatives. Reasoning: accepted interference, afforded weight to Parliament's considered judgment and the particular potency of broadcast media, found no workable narrower regime, and held the blanket ban compatible with article 10 on the facts.

Appeal dismissed. The House held that the prohibition on political advertising in sections 319 and 321 of the Communications Act 2003 is a restriction justified by the legitimate aim of protecting the democratic rights of others and is "necessary in a democratic society". The court relied on the particular pervasiveness and immediacy of broadcast media, the broadcasters' duty to preserve impartiality, the practical difficulties of workable alternatives, and Parliament's considered judgment; Strasbourg authorities were treated as important but fact-specific and not dispositive.

The Divisional Court (Auld LJ and Ouseley J) refused the declaration ([2006] EWHC 3069 (Admin)). A leapfrog certificate was granted under section 12(1) of the Administration of Justice Act 1969 and the case proceeded directly to the House of Lords, which delivered judgment ([2008] UKHL 15).