ECHR overturns television political advertising ban…
A friend just alerted me to the case of TV Vest AS v. Norway (click here for the decision).
The ECHR basically finds that Norway’s ban on political advertising on television falls afoul of Article 10 of the Convention. I personally think it is a big case — and may in part over-rule the UK case Animal Defenders International. It’s difficult for me to say because I am not a European lawyer, but I read TV Vest as essentially saying that the rationale for banning political expression on television is just not convincing. Here are the main nuggets (I’ve deleted some of the text to make it shorter):
70. In this regard, the Court notes that the rationale for the statutory prohibition of broadcasting of political advertising through television was, as stated by the Supreme Court, the assumption that allowing the use of such a form and medium of expression was likely to reduce the quality of political debate generally. In this way complex issues might easily be distorted and groups that were financially powerful would get greater opportunities for marketing their opinions than those that were not. Pluralism and quality were central considerations….. The Government pointed out that the ban had been limited to political advertising on television due to the powerful and pervasive impact of this type of medium. Moreover, the prohibition had contributed to limiting election campaigns costs, to reducing participants’ donor dependence and ensuring a level playing field in elections. ….. Also, it helped to preserve the political impartiality of television broadcasting. These are undoubtedly relevant reasons ….
71. However, the Court is not convinced that these objectives were sufficient to justify the interference complained of.
72. In the first place, there is nothing to suggest that the Pensioners Party fell within the category of parties or groups that were the primary targets of the disputed prohibition, namely those which because of their relative financial strength might have obtained an unfair advantage over those less endowed by being able to spend most on broadcast advertising….
73. On the contrary, while the Pensioners Party belonged to a category which the ban in principle was intended to protect, the Court, unlike the majority of the Supreme Court … is not persuaded that the ban had the desired effect. In contrast to the major political parties, which were given a large amount of attention in the edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to get its message across to the public through that type of medium. By being denied this possibility under the law, the Pensioners Party’s position was at a disadvantage, compared to that of major parties which had obtained edited broadcasting coverage that could not be offset by the possibility available to it to use other but less potent media.
74. The Court further notes that it has not been contended that the specific advertising at issue contained elements that were capable of lowering the quality of political debate ….
75. Moreover, as mentioned above, it does not appear that the advertising could give rise to sensitivities as to divisiveness or offensiveness making a relaxation of the prohibition difficult. ….
76. In these circumstances, the fact that the audio-visual media has a more immediate and powerful effect than other media …, albeit an important consideration in the assessment of proportionality …, could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertising at issue …..
***
Well, it’s a huge turnaround for proponents of freedom of expression.
Here the Court demolishes the main point of the argument — that the advertising bans prohibit well-funded players from having more of a voice than the rest of us. It’s usually quite the opposite: the ban seems to uniquely effect small political parties, organic farmers, animal rights protesters, etc. The big players (the government, large corporations, unions, the main political parties) — they always have their say. The other rationale for the ban — the unique effect of television — really did not feature in this case, but hopefully as the internet grows in importance that rationale too will fall away.
As I recall, the UK government could not certify that the Communications Act 2003 complied with Article 10 when it was passed. Well, now that we have this result, I think it is important for Ofcom to work with the government and revisit its regulations. They unfairly ban freedom of expression… (oh, and they limit advertising revenue for the broadcast sector). So there are both social and economic reasons for revisiting the ban.
Folks May 2010 is not that far off. Will this be the first UK general election where television is abandoned for the internet?
The revolution will not be televised…
[...] Taylor at Ofcomwatch alerted me to [...]
I wouldn’t say the last rites for ADI just yet. The earlier ECHR decision on political advertising albeit campaigning rather than political party (VGT v Switzerland, 2001) didn’t stop the House of Lords finding (after a struggle) a way around it (there’s an interesting human rights law point picked up in ADI over how much weight to put on a Strasbourg decision in a UK court – remembering that a Human Rights Act case doesn’t determine whether the UK is in violation of its *international* obligations under the Convention). ADI was quite a surprise as it was expected in many quarters that the House of Lords would follow and apply VGT. Essentially the HL disagreed with the Strasbourg analysis of political advertising. Although Strasbourg does explain the VGT rationale in a bit more detail, it’s essentially the same argument so barring a change of heart on the House of Lords, I think ADI may remain the law for a few years yet…
@Daithí: You would know better than me. Hopefully the UK courts will see the light. I thought the Court’s main point was quite cogent: the advertising restrictions actually work in the opposite manner as intended by the legislature.
It would be interesting to see if Ofcom or any MPs pick up on these cases, analyse them in conjunction with the declining advertising trends (in television) and connect the two dots. We’ll see… Meanwhile Google is picking up all that issue / political advertising money.
It’s just not a coherent policy, either from a social or economic perspective…
[...] that there had been a violation of Article 10. Read the decision here and further comments from OfcomWatch (Russ Taylor) and MediaPal@LSE (Andrew) and Adrian Monck. While some of the counterarguments are [...]
I think the MP point is one of the most interesting ones – you are right in that when the Communications Act was passed it was acknowledged that s 321 could not be certified as ECHR compliant. Taking that together with ADI and the recent case, it wouldn’t be hard for MPs (or a parliamentary committee?) to spark a debate on the matter. Another interesting development would be if a UK applicant brought a case to Strasbourg having exhausted domestic remedies. It’s interesting that the split across Council of Europe member states as between those who allow and those who forbid is still quite even. Today’s decision surely is causing some panic across the states that have kept their ban even after VGT.
[...] ECHR overturns television political advertising ban… | Ofcomwatch – "A friend just alerted me to the case of TV Vest AS v. Norway. [...]
[...] right to freedom of expression – Article 10 of the Human Rights Act (for more legal detail see Ofcomwatch and Lex Feranda, both interesting blogs surrounding media and the law). I assume that such a [...]
Whilst this is certainly an interesting decision I do not think it helps ADI (and, as stated before – with reservations I think the ADI decision was the correct one). This case is dealing with a political party being denied access to TV advertising, not a pressure group, whihc the ADI would be classed as, and I think the distinction (and you can argue whether or not such as distinction is real or not) is one that still gives some weight the the ADI decision.
Indeed in your post Russ, you cut of point 75 and miss where it mentions the Murphy decision in relation to religious advertising ” … the case under consideration is distinguishable from that of Murphy , where it was such sensitivities that led the Court to accept that the filtering by a public authority, on a case by case basis, of unacceptable or excessive religious advertisings would be difficult to apply fairly, objectively and coherently and that a blanket ban would generate less discomfort (§§ 76-77). ”
I’m sure the Lords would forward the same argument in realtion to pressure groups/campaigners such as ADI.
One thing is for sure, the next case of its type in the UK should be an interesting one to follow.
@Scott –
Good point, Scott…
Although, I’m not sure there is a huge practical distinction between a political party and a pressure group.
With just a few people and 150 GBP, I can register with the Electoral Commission and start a political party. http://www.electoralcommission.org.uk/guidance/candidates-agents/parties
Who’s with me? What should our agenda be? Weekly rubbish collections?
Russ, I’m with you. Our agenda should be ‘repeal of the Communications Act 2003′.
…or at least certain parts of it.
[...] well as highlighting the Irish background and linking to further blogs dealing with the judgment (OfcomWatch, MediaPal@LSE, Adrian [...]
[...] (see adrian monck | Benedict Pringle | content and carrier | MediaPal@LSE | Trans-Atlantic Post | OfcomWatch). The Irish and UK governments intervened in the case (to preserve Colgan and Animal Defenders) but [...]
[...] the bulk of their money doing things that are otherwise prohibited in the U.K. and/or Europe: political / issue adverts, HFSS adverts, Olympics adverts, pharma adverts, more adverts per hour, news sponsorship, etc. I [...]
[...] per hour were allowed and (ii) certain types of banned adverts could be aired (the latter being covered elsewhere). Ofcom addressed the issue of advertising minutage limits issue in its 26 May 09 advertising [...]