ITEMID: 001-119244
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2013
DOCNAME: CASE OF ANIMAL DEFENDERS INTERNATIONAL v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: András Sajó;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Kristina Pardalos;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 8. The applicant NGO campaigns against the use of animals in commerce, science and leisure, seeking to achieve changes in law and public policy and to influence public and parliamentary opinion to that end.
9. In 2005 the applicant began a campaign called ‘My Mate’s a Primate’ which was directed against the keeping and exhibition of primates and their use in television advertising. As part of the campaign, the applicant wished to broadcast a 20-second television advertisement. The proposed advertisement opened with an image of an animal’s cage in which a girl in chains gradually emerged from the shadows. The screen then went blank and three messages were relayed in sequence: “A chimp has the mental age of a four year old”; “Although we share 98% of our genetic make-up they are still caged and abused to entertain us”; and “To find out more, and how you can help us to stop it, please order your £10 educational information pack”. In the final shot, a chimpanzee was in the same position as that of the girl.
10. The proposed advertisement was submitted to the Broadcast Advertising Clearance Centre (“the BACC”) for a review of its compliance with relevant laws and codes. On 5 April 2005 the BACC declined to clear the advertisement. The objectives of the applicant were “wholly or mainly of a political nature” so that section 321(2) of the Communications Act 2003 (“the 2003 Act”) prohibited the broadcasting of the advertisement. This decision was confirmed on 6 May 2005. The advertisement could and can be viewed on the internet.
11. On 19 October 2005 the applicant issued proceedings seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“the HRA”) arguing that the prohibition on political advertising on television and radio imposed by the 2003 Act was incompatible with Article 10 of the Convention. The only contested issue was whether the prohibition could be considered “necessary in a democratic society”.
12. An affidavit from the Director General of the Department of Culture, Media and Sport (“DCMS”) dated 16 December 2005 was submitted on behalf of the State. It detailed how impartiality was a fundamental feature of the regulatory regime applicable to broadcasting and why it was considered that political advertising was incompatible with impartiality. It explained that a less restrictive prohibition was impracticable by describing the review process which began in 1999 (see paragraphs 37-55 below) noting that the relevant bodies consulted had supported the prohibition and it considered this answered the applicant’s arguments. Controls on broadcast media were justified given the unique nature of the medium and since there were other media available to the applicant. The affidavit referred to other States with similar provisions (Ireland, Denmark, Sweden and Norway), concluding that, in countries which had allowed paid political advertising, there remained “significant practical problems” in running such a system particularly in being able to guarantee equal access to all parties where the political landscape was characterised by multiple parties, where parties/broadcasters circumvented rules on time/funding limits on paid political advertising and where there was confusion over what constituted “political” advertising.
13. On 4 December 2006 the High Court (Auld LJ and Ousley J) dismissed the applicant’s claim. Both judges considered the prohibition to have been widely defined. Ousley J observed that it covered “a continuum of political activity and intensity from party political activity at election time to the pursuit by non-political bodies at any time of particular interests of public concern”. While political expression was a highly prized form of expression, both found the interference justified.
14. Both judges rejected reliance on VgT Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001VI) which they found turned on its facts. Auld LJ found the 2003 Act to have had a number of ameliorating features not present in the scheme at issue in VgT, including a relaxation of controls on the timing and content of political and election broadcasts. They relied on the criticisms of the VgT judgment in R (ProLife Alliance) v BBC ([2003] UKHL 23), Ousley J finding that it was not possible to discern the basis of the VgT judgment. Both judges doubted the relevance of Murphy v. Ireland (no. 44179/98, ECHR 2003IX (extracts)): it did not concern political advertising and they were not convinced by the observation therein that the margin of appreciation for restrictions on political advertising might be narrower than those on religious advertising.
15. Both judges underlined the caution to be exercised by the courts as regards Parliament’s policy and legislative choices. Auld LJ reiterated that:
“ ... in such matters of social and political judgment, the executive and legislative authorities - particularly the latter - of a Contracting State may normally be expected to have a better or surer grasp of its democratic needs and their practicalities than the Strasbourg Court or its own courts. Therein lies the notion of deference which, under one name or another, still stands as a caution to our courts against interfering too readily with the Government’s policies or Parliament’s legislative schemes in implementation of them. Such caution is an agent for broadening rather than narrowing the margin of appreciation/ambit of discretionary judgement of a Contracting State in this context, just as it may be in the context of other important and sensitive issues peculiar to a Contracting State’s traditions, to which its authorities – like those of Ireland in Murphy – are peculiarly alive and well qualified to assess.
Here, the United Kingdom Parliament has chosen to introduce a prohibition on political advertising confined to the broadcast media because of its perceived greater power than that of other media and, consequently, greater potential for distortion by wealthy interests of the democratic process. It may be that it could have gone about it in a different way, but is the court to be the judge of that, faced as it is with wide and highly authoritative support for the Parliamentary scheme?”
Auld LJ was to later conclude that Parliament had acted within the ambit of the discretionary judgment available to it.
Ousley J stated that the High Court was not reliant solely on the evidence before it since the “experience, expertise and judgment of Parliament expressed in the legislation can demonstrate the necessary justification”. As to the justification for the prohibition, he stated:
“There are competing interests at stake here which a legislature is entitled and obliged to balance, taking account of the way in which it can anticipate that groups and parties would use the greater access to the broadcast media which the Claimant seeks for itself and others. ...
In this regard, it is clear that Parliament has expressed a considered view, having grappled with the human rights implications of s321. I give great weight to its view thus expressed as evidencing the need for this restriction. This is not an executive act, not secondary legislation but primary legislation which was passed without member dissent by Parliament. It was aware of the opposition on human rights grounds of Professor Barendt, and of the reservations, based on VGT, expressed by the Joint Committee on Human Rights and the Electoral Commission.
I also give Parliament’s considered view great weight because of the subject matter. The impact of broadcasting on the topics, framework and intensity of political debate is one which few would be better placed to assess than those who deal on a daily basis with constituents and interest groups, whether to enlist, respond to or resist their influence. They would be well placed to know what manner of groups there were or might be who would take advantage of degrees of alteration to the present ban. It is not contestable that Parliament, through its MPs and politically active peers, is far better placed to reach a judgment on those matters than judges. This is not an area which more readily falls into the sphere in which judges are more experienced and expert. This is the more true of non-national judges.
I see these factors as giving substantial evidential weight to the view of a democratically elected body in deciding what restriction was shown to be necessary in the public interest. In substance, another way of putting that is to say that the subject matter warrants a considerable discretionary area of judgment being accorded to Parliament.
No doubt Parliament could have devised a form of words which would present a solution of sorts to any problem as to where a line was drawn as between types [of] advertiser or advertisement. However, the complexities and inevitable arbitrariness of any solution, such as it might be called, are proper matters for Parliament to consider in deciding that a complete ban on broadcasting advertisements is the only practicable and fair answer.”
Whether Parliament’s enactment of the prohibition was evidence for its necessity in an area of Parliament’s expertise or as a judgment in an area where a wider margin of discretion should be accorded to it, Ousley J considered that Parliament’s decision should be respected by the courts.
16. Having noted the lack of a relevant European consensus, Auld LJ remarked that the experts’ reports submitted had been of little assistance, had been produced by the State as a matter of disclosure only and had not been relied upon by the State. Ousley J noted that the High Court had been provided with some, but not comprehensive, material about how some other Council of Europe and commonwealth States had dealt with the issue. It was not of any great use save to demonstrate that there was a general consensus that electoral periods justified advertising prohibitions and that there was no clear consensus as to whether the present prohibition was necessary outside of an electoral period. Various states had decided what restrictions were necessary given their particular political sensitivities and broadcasting systems. The absence of consensus might have reflected those differing conditions which were properly part of a legislature’s judgment as to whether or not this degree of prohibition was necessary in its democratic society.
17. Both Auld LJ and Ousley J emphasised the rationale for the prohibition: to preserve the integrity of the democratic process by ensuring that the broadcast media were not distorted by wealthy interests in favour of a certain political agenda. Ousley J characterised the prohibition as a restriction aimed at supporting the democratic process rather than one with a specific content objection. Both judges considered it legitimate to single out the broadcast media as its impact was potentially more powerful: Ousley J finding that it was not a matter of serious debate that the broadcast media was more pervasive and potent than any other media form. As to the debate about whether television was more expensive than other media, Ousley J considered it sufficient to accept that broadcasted advertisements had an advantage of which advertisers and broadcasters were aware and for which the former would pay large sums of money far beyond the reach of regular groups who would wish to participate in the public debate.
18. Finally, both judges rejected the argument that the prohibition was disproportionate as it applied outside electoral periods and to groups such as the applicant who were not associated with party politics or electoral campaigns. Auld LJ emphasised that it would not be “a principled or logical distinction” to limit the prohibition to electoral periods. Both judges considered that political advertising in the broadcast media outside such periods was likely to have an equally obvious influence on the democratic process. In this respect, Ousley J noted that the broadcast media were ever-present, that contentious democratic issues could arise at any time and that purchased influence could affect the promotion of legislation, the decision to hold an election or its ultimate outcome. Both judges also considered that it was impracticable, arbitrary and potentially unfair to attempt to draw a line between party political matters and other matters of public importance: the distortion of the political debate could take many forms and could embrace a vast range of matters of public interest and certain issues would be difficult to categorise. There was also a risk that such a distinction might allow political parties to “contract out” their political advertising to “splinter or supporter groups” which would be free from restriction.
19. As a result, the High Court refused a declaration of incompatibility.
20. On 12 March 2008 the House of Lords (Lord Bingham, Lord Scott, Baroness Hale, Lord Carswell and Lord Neuberger) unanimously dismissed the applicant’s appeal.
21. Lord Bingham gave the lead judgment. He recognised that, since the prohibition interfered with political expression, the standard of justification imposed on the State was “high” and the margin of appreciation was correspondingly small. The objective of the prohibition was as follows:
“28. The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated.”
22. The objective was not achieved if:
“...well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.”
Lord Bingham did not think that the full strength of this argument had been deployed in the above-cited VgT judgment.
23. He considered that a blanket prohibition was necessary to avoid the risk of advertisements by organisations with objectionable goals and he observed that this option had been discounted in VgT but recognised in the above-cited Murphy judgment. That the prohibition was confined to the broadcast media only was, as Ousley J had found, explained by the particular pervasiveness and potency of television and radio, a factor recognised by this Court in Jersild v. Denmark (23 September 1994, § 31, Series A no. 298) and in Murphy although he noted that the VgT judgment appeared to discount the point.
24. As to whether a less restrictive prohibition (regulated by time, frequency, expenditure or by the nature and quality of advertisements) would avoid the mischief sought to be avoided, Lord Bingham considered it unnecessary to explore this option in detail because, inter alia, any less restrictive system could be circumvented by the formation of small groups pursuing very similar political objects; it would be difficult to apply objectively and coherently; and it would be even more difficult for broadcasters to fulfil their duty of impartiality. While the JCHR had requested a compromise solution, the Government had judged that no fair and workable compromise solution could be found which would address the problem, “a judgment which Parliament accepted. I see no reason to challenge that judgment”. Parliament’s judgment was to be given “great weight” for three reasons. In the first place, it was reasonable to expect that democratically-elected politicians would be “peculiarly sensitive” to the measures necessary to safeguard the integrity of democracy. Secondly, while Parliament considered that the prohibition might “possibly although improbably” infringe Article 10, Parliament had resolved to proceed because of the importance it attached to the prohibition and its judgment which should not be “lightly overridden”. Thirdly, legislation could not be framed to address particular cases but had to lay down general rules and Parliament would decide where the line would be. While that inevitably meant that hard cases would fall on the wrong side of the line, “that should not be held to invalidate the rule if, judged in the round, it is beneficial.”
25. The fact that other means of communication were available to the applicant was a “factor of some weight” and this was to be contrasted with Bowman v United Kingdom (19 February 1998, Reports 1998I) where the impugned provision was found to amount to be a total barrier to the applicant’s communication of her views.
26. Finally, Lord Bingham observed that there was no clear consensus among member States on how to legislate for the broadcasting of political advertisements. This Court had widened the margin of appreciation in such instances and suggested that it might be that each State was best fitted to judge the checks and balances necessary to safeguard, consistently with Article 10, the integrity of its own democracy. He dismissed the appeal, agreeing with Ousley J and, in the main, with Auld LJ. He did not accept Lord Scott’s view that the domestic courts could differ from this Court in interpreting Convention rights since the former should, in the absence of special circumstances, follow any clear and constant case-law of this Court.
27. Lord Scott agreed with Lord Bingham, adding two comments.
In the first place, the prohibition could give rise to further Article 10 claims given its “remarkable” width: it could withhold from the applicant the ability to place advertisements for broadcasting with no political content or with an entirely neutral content and prevent the applicant from ‘countering’... in a manner that is incompatible with that right” and hypothetical examples of ways in which the legislative provision might be incompatible with a Convention right did not suffice. The conclusion was that the prohibition was not incompatible with the applicant’s Article 10 rights.
Secondly, it was not possible to assume from the VgT judgment that the Court would disagree with the House of Lords in the present case. The Court in Murphy did not distinguish or qualify its reasoning in VgT and this Court’s judgments focused closely on the particular facts of each case. There was no more than the possibility of a divergence between the finding of the House of Lords and of this Court.
28. Baroness Hale began her judgment by pointing out that there had been “an elephant in the room” when the case was heard and it was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States. She underlined the enormous amounts spent, and which have to be raised, for elections in the United States. There was no limit in the United States to the amount that pressure groups could spend on getting their message across in the most powerful and pervasive media available.
29. She went on to describe the rationale of the prohibition as ensuring that Government and its policies were not decided by the highest spenders:
“Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. ... We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.
So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.”
30. Baroness Hale held, in full agreement with the reasons given by Lord Bingham, that the prohibition as it operated in the case was not incompatible with the applicant’s Article 10 rights. On the contrary, it was:
“51. ... a balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work...”
31. She doubted the application of the Court’s judgment in the VgT case since, like all of this Court’s judgments, it was fact specific:
“52. ... Similar though the organisations were, the advertisements were rather different: “eat less meat” is a different message from “help us to stop their suffering”. Important arguments which were given less weight in VgT were accepted in Murphy. If anything, the need to strike a fair balance between the competing interests is stronger in the political than in the religious context. Important though political speech is, the political rights of others are equally important in a democracy. The issue is whether the ban, as it applies to these facts, was proportionate to the legitimate aim of protecting the democratic rights of others. As Lord Bingham has demonstrated, Government and Parliament have recently examined with some care whether a more limited ban could be made to work and have concluded that it could not. The solution chosen has all-party support. Parliamentarians of all political persuasions take the view that the ban is necessary in this democratic society. Any court would be slow indeed to take a different view on a question such as this. There may be room for argument at the very margins of the rule, for example, in banning any advertisement of any kind by a political body, or in banning any advertisement by anyone of matters of public controversy. But that is not this case.”
32. Finally, Baroness Hale agreed with Lord Bingham (disagreeing with Lord Scott) that the correct interpretation of the incorporated Convention rights lay ultimately with this Court. The domestic courts should adopt a “cautious approach” where they must not “leap ahead” of the Court’s interpretations but “keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less”.
33. Both Lord Carswell and Lord Neuberger dismissed the appeal for the reasons given by Lord Bingham.
34. The HRA came into force in England, Wales and Northern Ireland on 2 October 2002. Section 4 allows courts to issue a declaration of incompatibility where it is impossible to interpret primary or subordinate legislation compatibly with the Convention. Section 19 of the HRA is entitled “Statements of compatibility” and provides that:
“(1) A Minister ... in charge of a Bill in either House of Parliament must, before Second Reading of the Bill:
(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or
(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.
(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.”
35. Prior to the 1954 Act, the BBC was the only radio and television broadcaster in the United Kingdom and never broadcasted paid advertising. The 1954 Act opened the market to commercial broadcasters, reliant on advertising revenue for finance, and it established a regulatory body (Independent Television Authority, “ITA”) to enforce, inter alia, a prohibition on paid political advertising introduced by the 1954 Act:
“No advertisement shall be permitted which is inserted by or on behalf of any body the objects whereof are wholly or mainly of a religious or political nature, and no advertisement shall be permitted which is directed towards any religious or political end or has any relation to any industrial dispute.”
36. Subsequent legislation has preserved this prohibition.
37. The Neill Committee was set up by the Government to consider the broader issue of political party funding. Having visited Canada, Germany, Ireland, Sweden and the United States, in October 1998 it presented its Fifth Report to the Government. In Chapter 13 of the Report, the Neill Committee recommended that the prohibition on political advertising on television and radio should be maintained, describing its benefits as follows:
“13.7 Preventing the political parties and other politically motivated organisations from buying time on television and radio has the effect of restricting the total amount of money they can spend and also, thereby, of limiting the amounts of money they have to raise. These effects are almost universally agreed to be beneficial. Election campaigns in the United Kingdom are cheaper than in many other countries. During election campaigns, television viewers and radio listeners are not subjected to a continuous barrage of party political propaganda (much of which, if it were permitted here, would undoubtedly be negative). The parties’ dependence on wealthy donors is reduced. Political leaders are not forced to spend enormous amounts of time and energy raising money to fund television and radio campaigns. Not least of the benefits is the fact that the broadcasters provide the parties with free air-time. This means that all the major political parties, and not just the richest ones, are given an opportunity to state their views. Almost all those who have observed election campaigns in the United States regard these aspects of the UK system as superior. We believe that the present arrangements have served this country well and should remain in place.”
38. The Neill Committee considered that the restriction on freedom of expression resulting from the prohibition was potentially justifiable. It concluded that:
“13.11 ... it is perfectly proper for the Government to continue to proceed on the basis that the ban on political advertising on television and radio is legally defensible. We refer in particular to the Ministry’s argument [in the X and the Association of Z v. the United Kingdom, no. 4515/70, Commission decision of 12 July 1971, Yearbook 14, p. 538] ... justifying the outright ban on the basis of protecting the democratic right of UK citizens not to be subjected to a barrage of political propaganda at prime advertising time from the party with the richest backers. If a court were in the future to rule to the contrary, this would potentially have a dramatic effect on the funding of the political parties. If free to do so, the parties would almost certainly feel obliged to make use of the opportunity to advertise themselves (or attack their opponents) on television and radio. In the United States a high percentage of the expenditure by the political parties at election times is devoted to television advertising. It is the pressure to advertise, as much as any other factor, which generates the demand for money and hence the arms race between Democrats and Republicans...”
39. The Neill Committee went further suggesting that, if anything, the legislation should be reconsidered to ensure that it was sufficiently wide:
“13.12 Another possible future danger, to which reference was made in some of the evidence, is that as advances in technology bring in their train new and varied means of disseminating information (cablevision, multi-channel digital television, the Internet etc.) novel methods may be devised in an attempt to circumvent the current legal restrictions on political advertising. Vigilance will be required to prevent this happening. Existing legislation should be reviewed to ensure that its reach is sufficiently wide.”
40. In 1999 the Government began a comprehensive review of broadcasting regulation and engaged in consultation on, inter alia, less restrictive measures than the current prohibition on political advertising. In July 1999 the Government responded to the Neill Committee proposing legislation including maintaining the prohibition on political advertising:
“9.2 The ban on paid political advertising on television and radio has been a major factor in limiting the amount of money political parties can spend on election campaigning and therefore on the amount they have to raise. As a result, the ban is supported across the political spectrum and the Government strongly endorses the Neill Committee’s recommendation that it should be maintained.”
41. In December 2000 the Government published a Communications White Paper proposing a Communications Bill to implement new controls on the broadcasting media in England and Wales including the maintenance of the prohibition on political advertising. During the resulting consultation period the Court delivered its judgment in Vgt Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001VI).
42. Following that consultation period, in May 2002 the Government published the 2002 Bill, thereby opening a three-month consultation period. Programme services were not to contain any political advertising whether it was an advertisement inserted by or on behalf of a body which was political in nature or an advertisement directed to a political end. Documents published with the 2002 Bill included Explanatory Notes (which considered the VgT judgment, noting that it had thrown some doubt on whether the prohibition was Convention compatible) and a Policy document outlining proposals in the Bill and related policy decisions and expressing the view, inter alia, that the Bill reflected a proper balance of freedom of expression and the need to protect against certain types of broadcasted material.
43. The Joint Committee on Human Rights (“the JCHR”, a standing parliamentary committee tasked with examining the human rights implications of draft legislation) considered the 2002 Bill and, in doing so in June 2002, took evidence from Professor Barendt who was the Goodman Professor of Media Law at University College London (1990-2010), the first chair in media law in the United Kingdom. In response to a question about whether there were restrictions that could be imposed on political advertising which could be compatible with Article 10, Professor Barendt stated that he agreed with the result of the VgT case. To disallow a charity with a political programme (such as Amnesty) which could afford to pay for a short commercial seemed to him to be a “monstrous and unjustifiable infringement of freedom of expression”. It made no sense to him to allow commercial advertisements for automobiles and products associated with driving but not to allow groups to broadcast advertising of the opposite case. He was not advocating unrestricted access but rather the adoption of rules to limit the number of spots which could be purchased. He considered that the distortion of the political debate could be “avoided by imposing financial limits, just as we now have with regard to the financing and expenditure of political parties”.
44. On 19 July 2002 the JCHR published a report on the 2002 Bill, including on the prohibition of political advertising. The JCHR acknowledged that the prohibition could well be found incompatible with Article 10 having regard to VgT. However, it urged caution in reversing the prohibition given the important rationale of the prohibition and the difficulty of devising a more circumscribed solution. Having noted the approach of the Canadian Supreme Court and the differing freedom of expression traditions in the United States and Australia, the JCHR preferred the European approach in that it gave “appropriate weight to the legitimate objective of securing equality of opportunity for political expression, at any rate in the broadcast media” which tradition justified the prohibition. The JCHR continued:
“63. ... there are wider considerations which we believe urge the utmost caution in moving from the current statutory position in the UK (where television and radio access to those seeking to advance political causes is restricted almost entirely to the highly regulated system of party political broadcasts). These wider considerations include the fear of the annexation of the democratic process by the rich and powerful, to which the Court alluded in its judgment in VgT... The risks of this will be intensified where it proves impossible to prevent concentration of cross-media ownership in one country. We are also conscious that the compromise hinted at by the Court - a more circumscribed ban applied more discriminatingly - presents a formidable challenge to put in statutory form. In particular, it is difficult to conceive of how to devise ways of allocating air time or capping expenditure in relation to a “political viewpoint” (as opposed to a political party, however that might be defined in statute)...”
45. While the JCHR doubted the general applicability of the above-cited judgment in the VgT case and saw some merit in waiting for the jurisprudence in this area to mature further before deciding on the appropriate legislative response, it nevertheless considered that a total prohibition on political advertising on radio and television was likely to be held to be incompatible with Article 10, as the Government had itself recognised in the Explanatory Notes to the 2002 Bill. The JCHR recommended that the Government “examine ways in which workable and Convention-compatible restrictions of this kind could be included in the Bill”.
46. The Joint Committee on the Draft Communications Bill (“the JCDCB”) was a parliamentary body set up to consider the Bill. Its report of 25 July 2002 supported the principles underlying the proposed prohibition:
“301. ...The Government’s view is that there are strong grounds for re-enacting the long-standing ban on political advertising in the broadcast media, but it acknowledges that a recent decision of the European Court of Human Rights has cast doubt on the compatibility of that ban with the Convention. Professor Eric Barendt argued that a blanket ban on political advertising was not compatible with human rights and suggested that the aim could best be secured by limits on expenditure on political advertising. The Joint Committee on Human Rights has argued that a ban on the purchase of advertising time for political purposes is likely to be compatible with Convention rights. We support the principles underlying the proposed ban on political advertising ... and urge the Government to give careful consideration to methods of carrying forward that ban in ways which are not susceptible to challenge as being incompatible with Convention rights.”
47. The Independent Television Commission (“the ITC”) had overall responsibility for commercial television at the time. On 10 October 2002 the ITC invited the Government to maintain the prohibition:
“The ITC shares the Government’s principled objections to political advertising and hopes that the ban, which has been effective, will be retained. Our own assessment is that an OFCOM/broadcaster-administered scheme to ‘control’ political advertising based around tests of due impartiality and undue prominence would, fairly swiftly, collapse on the grounds of unworkability in practice ... Once the absolute bar is removed, the broadcasters...would at the very least be open to challenge if they refused to accept political adverts. We are then on a slippery slope ... banning named political parties is fairly ineffectual where ... it is not difficult to create front organisations. The same will be true of many other emotive single issues, such as right to life. The Strasbourg decision in the Swiss case provided no clear guidance as to when a political advertisement may be subject to prohibition. So there must be at least a risk that any ‘halfway house’ would – in addition to being ineffective – still be held to be incompatible.”
48. On 19 November 2002 the Government introduced the 2002 Bill to Parliament with the prohibition on political advertising intact. The Minister introducing the Bill made a statement under section 19(1)(b) HRA 1998:
“I am unable (but only because of [the prohibition on political advertising]) to make a statement that, in my view, the provisions of the [2002 Bill] are compatible with the Convention rights. However, the Government nevertheless wishes the House to proceed with the Bill”.
49. This was the only time since the enactment of the HRA that the Government had adopted such a procedure: it did not mean that the Government considered the 2002 Bill incompatible but rather that it could not clearly state that it was compatible given the VgT judgment.
50. On 22 November 2002 the Secretary of State for the Department of Culture, Media and Sport (“DCMS”) published a Department Memorandum in response to the report of the JCHR of July 2002:
“... the Government is aware that the case of [Vgt] casts doubt on whether the ban on political advertising (which the Bill would re-enact) is compatible with the ECHR. We note the Committee’s view that the legitimate objective of securing equality of opportunity for political expression in the broadcast media justifies restrictions on political advertising, and that the utmost caution should be exercised in changing the present statutory position ....
With the Committee’s observations in mind, the Government has followed the Committee’s recommendation to examine ways in which workable and Convention-compatible restrictions could be included in the Bill. We have in particular considered an alternative regime based on specific prohibitions, such as banning all party political advertising, and all political advertising of any kind around the time of elections or referenda, coupled with other rules to avoid the predominance of any particular point of view, to provide visual or audible identification of political advertisements, and to control the scale of political advertising in terms both of broadcasting time and the proportion of advertising revenue that a broadcaster is permitted to derive from political advertising. We have concluded that it would be very difficult to make such a scheme workable, and that in any event it would fall significantly short of the present outright ban and allow a substantial degree of political advertising to be broadcast.”
51. On 3 December 2002 the Secretary of State for the DCMS explained to Parliament why a compatibility statement had not been possible:
“Although there will of course be an opportunity for this matter to be debated fully in Committee, I wanted to explain the position to the whole House. The decision to proceed with a Bill containing a provision of this kind was obviously exceptional, and was made only after careful deliberation and a full examination of both the legal arguments and the policy alternatives.
For many years, successive Governments have maintained a complete ban on advertising of a political nature on television or radio. The Government’s intention in this case is to continue with the current ban—a ban that was supported by the Neill committee in its 1998 report on funding of political parties—and to define more precisely what is meant by “political”, so that OFCOM may continue to use the broad reading of the word that existing regulators use. ...
However, a potential complication exists in the form of [the VgT judgment] which [concerned] an apparently similar ban. That point was also noted by the [JCHR]. In response to the ECHR’s judgment and to the [JCHR’s] concerns, we looked hard at the current ban to see whether some minor changes would make it more certain that it was human rights compatible. Unfortunately, any such change would still allow substantial political advertising, and I hope that there is cross-party agreement that that would not be a desirable outcome. By denying powerful interests the chance to skew political debate, the current ban safeguards the public and democratic debate, and protects the impartiality of broadcasters.
Having examined all the facts, and following extensive legal advice, I have concluded that very strong arguments could be advanced in favour of the ban contained in this Bill being compliant with the ECHR. ...
The Government apply testing standards to the consideration of the compatibility of their legislation with the convention and, given the existence of [VgT], I must ask the House to consider this Bill with a section 19(1)(b) of the Human Rights Act 1998 statement attached to it. That does not mean that we believe the Bill to be incompatible with the ECHR, and we would mount a robust defence if it were legally challenged. Of course, if that defence subsequently failed before the domestic courts, we would need to reconsider our position. Beyond that, we take our international obligations extremely seriously and we would seek to amend the ban in accordance with any judgment of the European Court of Human Rights in Strasbourg that ruled against the UK legislation. As things stand, however, the Government believe that it is right to ask the House to continue the ban on political advertising.”
52. On 10 December 2002 the Secretary of State of the DCMS responded to an MP’s query as to the Convention compatibility of the prohibition enclosing a detailed DCMS “Explanatory Note” setting out the Government’s reasons for maintaining the prohibition. The DCMS Explanatory note recorded that, while the VgT case had called into question whether the prohibition was compatible with the Convention, the prohibition had enjoyed wide and cross-party support and was strongly supported by the Neill Committee. The pre-legislative scrutiny committee and the JCHR supported the principles behind the prohibition and had urged the Government to examine ways of ensuring that it was Convention-compatible. The Government had taken appropriate advice. A more certainly Convention-compatible prohibition could only be achieved by a significant shift in the approach to the prohibition which would open the way “at the very least to substantial advertising by lobby groups and issue campaigners”. Moreover, there was a “very strong case” that the prohibition was ECHR compatible which was why the Government asked Parliament to proceed with the Bill with the prohibition intact.
Alternatives to the prohibition had been examined in order to examine how the prohibition might be maintained in a Convention compliant manner:
“In particular, consideration was given to an alternative regime based on specific prohibitions, such as banning all party political advertising and all political advertising around the time of elections or referendums; coupled with other rules to avoid the predominance of any particular point of view on one channel, to provide visual or audible identification of political advertisements, and to control the scale of political advertising in terms both of broadcasting time and the proportion of advertising revenue that a broadcaster is permitted to derive from political advertising.
8. The conclusion was reached, taking account of legal advice, that it would be very difficult to make such a scheme workable, and that in any event it would fall significantly short of the present outright ban, and allow a substantial degree of political advertising to be broadcast across a number of channels.”
The DCMS Explanatory Note went on to outline advice the DCMS had received from counsel as to the Convention compatibility of the prohibition despite the VgT judgment:
“20. The Government sought Counsel’s advice regarding the effect of the Swiss case on the compatibility with the Convention of the ban on political advertising contained in the Broadcasting Act 1990. Counsel advised that, but for the Swiss case, there is a very strong case that it would be consistent with Article 10 for domestic law to prohibit political advertising. He also expressed the view that the judgment of the European Court of Human Rights in the Swiss case was unconvincing and that there were strong arguments to justify a domestic court and the European Court itself not following that decision in the present context.
21. The main points of Counsel’s advice in coming to this view related to the following factors:
(a) the fundamental importance of maintaining impartiality in the broadcast media because of its reach, immediacy and influence;
(b) to allow advertising by political bodies, or advertisements of a political nature, would conflict with the principle of impartiality, allow powerful groups to buy influence by buying airtime, and deprive broadcasters of protection from political advertisers seeking to exert editorial influence over other programmes in the service;
(c) special treatment for broadcasting in this respect is supported by considerations of spectrum restrictions, the third sentence of Article 10(1) (permitting broadcasting licensing) and the Television Without Frontiers Directive;
(d) recent independent consideration has supported the ban: e.g. the Neill Committee and the Joint Committee on Human Rights;”
(e) the criticism that the ban applies to political bodies rather than looking at the nature of each advertisement is unjustified, because any advertisement by such a body will tend to promote its interests (if only by promoting name recognition or fundraising), because it would be inherently difficult and uncertain to say whether or not the content of a particular advertisement was "too political", and because (in the light of supporting factors) Parliament is acting within its discretionary area of judgment in focusing on the nature of the body, rather than the nature of the advertisement, to pursue its objective of impartiality.
22. Counsel’s explanation as to why he found the reasoning in the Swiss case to be unpersuasive, included the following points:
(a) the Strasbourg Court’s "puzzling" conclusion that the concerns which the ban sought to address (e.g. stopping powerful groups from having undue influence) were not "pressing" in light of the fact that the ban did not cover other forms of media;
(b) the Court accepted that a prohibition on political advertising could be permissible in certain circumstances, but Counsel pointed out that there is authority that general ("bright line") rules can be justified, even if they can produce hard cases at the margins;
(c) the Court gave insufficient weight to the fact that other forms of publicity (e.g. newspapers, leaflets, hoardings) were available.”
53. On 10 December 2002 the JCHR wrote to the Government seeking a fuller explanation why the prohibition was being maintained. On 20 December 2002 the JCHR released a report regretting the Government’s failure to explain why it had not included a less strict prohibition in the Bill. On 9 January 2003 the Secretary of State of the DCMS answered the JCHR referring to the letter and the accompanying DCMS Explanatory Note sent in December 2002 to the MP (paragraph 52 above). On 10 February 2003 the JCHR responded that it was satisfied that the Government’s course of action was legitimate. In particular, it noted (Fourth Report of the Session 2002-2003):
“40. In our First Report, we set out six factors which we provisionally thought were relevant to an assessment by Parliament of the propriety of proceeding to legislate in a way that would give rise to an acknowledged risk of incompatibility with a Convention right. Taking those matters into account, and in the light of the correspondence mentioned above, we are satisfied that—
- in any litigation about the ban on political advertising and sponsorship in the broadcast media under clause 309 of the Bill, the Government would argue that the decision in [Vgt] should not be followed, or alternatively that the decision does not necessarily entail the incompatibility of clause 309 with the right to freedom of expression under ECHR Article 10, and that such an argument would have a reasonable chance of success;
- the Government would feel obliged to amend the law if that particular provision were held by the [Court], after argument, to be incompatible with Article 10, and would consider its position if a court in the United Kingdom were to make a declaration of incompatibility under section 4 of the Human Rights Act 1998; and
- in the meantime, pending the opportunity to advance before the courts its arguments relating to the compatibility of a ban with Article 10, the Government has good reasons for believing that the policy reasons for maintaining the ban outweigh the reasons for restricting it, particularly as it would be difficult to produce a workable compromise solution.”
54. On 13 January 2003 the Electoral Commission (an independent body established by Parliament to keep under review a range of electoral and political matters) published a report entitled “Party Political Broadcasting: Report and Recommendations”. It considered the case for the prohibition to be persuasive. A principal concern was to avoid those with higher financial resources from hijacking the political agenda in that the electorate would receive information only from a very small number of well-financed (large) political parties. It would also be difficult for the broadcasters to maintain balance and impartiality. International comparisons did little to alleviate concerns regarding the impact of paid advertising, the Commission referring to experiences in the United States and to Germany where, despite reduced rates for advertising, only the largest parties had the resources for such advertising. Notwithstanding the VgT judgment, the proposed prohibition could be justified under Article 10(2) of the Convention (pages 16-17 of the Report):
“...it is to be noted that the [VgT] case was concerned with paid political advertising in general and not with political party advertising within a context where the ban on paid advertising operated alongside a regime of free broadcasts which are essentially unmediated by the broadcasters. Such a [regime] has not been the subject of a ruling either in Strasbourg or by our own courts under the Human Rights Act. ... [it] is undoubtedly a counterbalance to the ban on paid advertising. While it does not offset the ban in its entirety ...we nevertheless consider it to be a significant counterbalance because it applies principally at the time of elections.
It seems to us that the UK system would survive scrutiny under the ECHR and the HRA, at least if the regime of free and unmediated broadcasts is robust.”
55. The VgT judgment was considered by the House of Lords in R (ProLife Alliance) v BBC ([2003] UKHL 23). Lord Hoffmann described the VgT judgment as “a guarded, if somewhat opaque, decision”, although he noted that the Court would not “exclude that a prohibition of ‘political advertising’ may be compatible with the requirements of Article 10 in certain situations”. Lord Walker commented that the VgT judgment “does not, with respect, give full or clear reasons for what seems to be a far-reaching conclusion... The true significance of the VgT case is therefore rather imponderable”.
56. The 2003 Act was enacted by Parliament without member dissent. The 2003 Act replaced the existing regulators with a unified regulator for media, telecommunications and radio communications called the Office of Communications (“OFCOM”). However, until 31 December 2007 the Broadcast Advertising Clearance Centre (“BACC”) was responsible for pretransmission examination and clearance of advertisements proposed for broadcasting.
57. Section 319(1) requires the OFCOM to set and review standards to achieve certain fixed objectives listed in section 319(2) which objectives include that news on television and radio is presented with due impartiality and that the impartiality requirements of section 320 are complied with and, further, that advertising contravening the prohibition on political advertising is not included in television or radio services.
58. Section 321(2) contains that prohibition and provides that:
“(2) For the purposes of section 329(2)(g) an advertisement contravenes the prohibition on political advertising if it is:
(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
(b) an advertisement which is directed towards a political end; or
(c) an advertisement which has a connection with an industrial dispute.”
59. Section 321(3) defines objects of a “political nature and political ends” as including:
“(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;
(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;
(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;
(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;
(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;
(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.”
60. Accordingly, the prohibition applies, not only to advertisements with a political content, but also to those bodies which are wholly or mainly of a political nature irrespective of the content of their advertisements.
61. Section 321(7) provides an exception for public service advertisements inserted by or on behalf of a government department and for party political and referendum campaign broadcasts of certain political parties (paragraph 64 below). The political parties on whose behalf such broadcasts may be made are determined by OFCOM and only those registered with the Electoral Commission are eligible to be selected.
62. Political impartiality has been a core feature of the legislative regime governing broadcasting from the outset and is achieved by three mechanisms. The first is the prohibition against paid political advertising.
63. The second is the statutory obligation of impartiality on all broadcasters. Section 320 of the 2003 Act is entitled “Special Impartiality Requirements” and subsections 1 and 2 provide as follows:
“(1) The requirements of this section are–
(a) the exclusion, in the case of television and radio services ... from programmes included in any of those services of all expressions of the views or opinions of the person providing the service on any of the matters mentioned in subsection (2);
(b) the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters;
(c) the prevention, in the case of every local radio service, local digital sound programme service or radio licensable content service, of the giving of undue prominence in the programmes included in the service to the views and opinions of particular persons or bodies on any of those matters.
(2) Those matters are–
(a) matters of political or industrial controversy; and
(b) matters relating to current public policy.”
64. The third mechanism is the provision of free party political, party election and party referendum campaign broadcasts by broadcasters, a mechanism which has been part of the regulatory landscape since broadcasting began. The first such broadcast on the radio was in 1924 and on the television in 1951. Section 333 of the 2003 Act provides that licences for certain broadcasters must require the inclusion of free broadcasts and the observance of OFCOM Rules. Those Rules regulate party political broadcasts (offered to the major parties at the time of key events in the political calendar); party election broadcasts (offered during electoral periods to each of the main parties and to smaller registered parties contesting one sixth or more of the seats up for election at a general election) and referendum campaign broadcasts (offered to each designated referendum organisation in the run-up to a referendum).
65. This survey was completed by the Secretariat of EPRA on the basis of information received from 31 States/territories: Austria, Belgium (2), Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, the Isle of Man, Israel (2), Italy, Latvia, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden and Switzerland (2). It recommended caution in relying on a comparative review in this context. Given the lack of precise definitions in domestic laws and the great diversity of national traditions, there was likely to be confusion as to the meaning to be attributed to “political”, a notion that could include matters as diverse as party political broadcasting during electoral periods as well as public interest expression by a non-governmental organisation.
66. In response to the question “Is paid political advertising in broadcasting prohibited in your country?”, the Survey noted:
“Countries with a ban on paid political advertising
Paid political advertising is statutorily forbidden in the vast majority of Western European countries such as Belgium, Denmark, France, Germany, Ireland, Malta, Norway, Portugal, Sweden, Switzerland, and the UK. Several countries from central and Eastern Europe, such as the Czech Republic and Romania, also have a prohibition of paid political advertising.
The most traditional justification for this prohibition is that rich or well-established parties would be able to afford significantly more advertising time than new or minority parties – thus amounting to a discriminatory practice. Another rationale invoked for the restriction or the ban is that it may lead to divisiveness in society and give rise to public concern. It has also been suggested, albeit less frequently, that a prohibition would preserve the quality of political debate.
Countries allowing paid political advertising
Paid political advertising is allowed in many central and Eastern countries such as Bosnia and Herzegovina, Bulgaria, Croatia, Hungary, [the former Yugoslav Republic of Macedonia], Poland, and the Baltic States: Estonia, Latvia and Lithuania. In a few countries such as in Bosnia-Herzegovina (60 days prior to Election Day), and Croatia, political advertising is only permitted during the election period.
It is often overlooked that several countries in Western Europe, such as in Austria, Finland, Luxembourg (for the moment, this will change shortly) and the Netherlands also allow paid political advertising.
In Italy, until 2003 paid political advertising, i.e. self-managed spaces, was allowed also for national broadcasters, provided that they also transmitted “political communications spaces” ... i.e. discussion programmes with the participation of political representatives; now it is allowed only for local broadcasters and has to cost no more than 70% of the price applied to commercial advertisements, whereas national broadcasters may only broadcast them for free.
In Greece, while there is a permanent and wide-ranging ban on the political advertisement of persons, paid political advertising of political parties is not prohibited.
In Spain, while the ban of political advertising applies permanently for television broadcasters, the Spanish Electoral Code permits paid electoral advertising on commercial radio stations, only during the election period.
The main rationale for paid political advertising is that it may enable new candidates to obtain recognition and a profile. It is also often argued that the right to political advertising is an integral part of the right to freedom of expression and information.”
67. As to the scope of the ban of political advertising, the Survey stated:
“As a rule, political advertising does not exclusively relate to election time, or political parties or candidates. Advertising on other issues, which reflect important societal debates, such as animal rights, environmental issues, abortion etc. (often referred to as political propaganda or issue advertising) may be considered to pursue a political end or to be political in nature and may therefore be construed as political advertising.
Countries with a wide-reaching ban
This is for instance the case in France, Ireland, the Isle of Man, Israel, Malta, Spain and the UK. In Ireland, the ban is applied to all advertising which can be said to be political in nature and to all groups which are political by design. In this sense it is applied in the broadest sense and not limited to election campaigns or voting for referenda exclusively. In Israel, the ban applies permanently and to political parties as well as other interest and societal groups.
On the Isle of Man, the term “political” is used in a wider sense than "party political". The prohibition precludes, for example, issue campaigning for the purposes of influencing legislation or executive action by government or by local authorities.
In France, the ban applies to political parties and candidates, but also to any organization whose advertising messages would be directed towards a political end. Associations (most interests and societal groups are constituted as such) are not allowed to broadcast advertising spots. Associations with charitable aims may broadcast so-called “messages d’intérêt general” which should not include any political message.
In Spain, the ban applies permanently and does not specify the groups.
In Malta, the ban applies permanently except for such approved schemes of political broadcasts. Paragraph 1(f) of the Third Schedule bans advertising of a political nature and this has always been taken to apply in its strict interpretation to the political parties. However, the Authority has also taken a wider interpretation and applied such a ban on advertising to other organisations such as trade unions etc. which pursue aims which could be qualified as political in the broad sense.
Countries with a more restricted scope of the ban
In Switzerland, as a consequence of the [VgT judgment] ... certain forms of “political” advertising are now allowed. NGOs or societal groups may place advertising with a certain political content, but not before elections or in campaigns before plebiscites. However, the prohibition on advertising by political parties and candidates remains.
Similarly, in Denmark - as a consequence to the above-mentioned ruling - the permanent ban on political advertising on television concerns advertising for political parties, political movements and political candidates as well as advertising for trade unions and religious movements. The ban is not considered to include political movements in a broader sense such as environmental and societal groups except when such groups are nominated for political bodies or assemblies.
In addition, Danish legislation does not allow advertisements with political messages to be broadcast during the time of election campaigns where a total ban is considered necessary to protect voters from inappropriate influencing and to ensure equal democratic rights of candidates regardless of economic means or funding. Political advertising and campaigning is not prohibited in other media such as radio broadcasting.
In Norway, the ban applies permanently and to all groups and parties that promote political ends. However, the ban will be interpreted in the light of Article 10 of The European Convention on Human Rights and the case law from The European Court of Human Rights derived from said article.
In Sweden, only broadcasts which are subject to conditions of impartiality cannot include political advertising. DTT-licences, for the commercial channels, have as a rule not included such a condition and have therefore been free to broadcast political advertising. Until 1 March 2006 this did however not apply to TV4 DTT-licences for their niche channels. The new licences for TV4’s niche channels however, do not include a condition of impartiality, which means that they can broadcast political advertising.
In Italy, the term “political” is used in a very narrow sense; other interest groups would fall under what are called "social" messages. All broadcasters may transmit messages with a social utility content (this is not defined) and can also be paid for, provided that the price does not exceed the 50% of the cost of commercial advertisements. These messages (paid for or not) are not considered for the calculation of the hourly/daily time limits and cannot, altogether, last for more than 4 minutes per day.
In some countries, the focus of the ban is on election and election time (e.g. Czech Republic) or political parties and candidates (e.g. Belgium ...). Issue advertising is not mentioned.”
68. Certain States allowed political advertising subject to restrictions and some States had no such restrictions at all:
“Countries with restrictions on paid political advertising
Most of the countries which allow political advertising also foresee certain legal restrictions to avoid the discriminatory character of the practice. This includes limits on the duration and frequency (e.g. [the former Yugoslav Republic of Macedonia], Bosnia and Herzegovina), scheduling (e.g. [the former Yugoslav Republic of Macedonia]: not during news, children programmes) limits on the charges for such ads (e.g. Bosnia and Herzegovina where the price lists must be submitted to the regulator for review 15 days prior to the elections period), or on maximum election expenditure that is permitted by the law (Greece, Latvia where during Saeima (Parliament) and European Parliament elections, a party may spend no more than 0,20 LVL (0,284 EUR) x the number of voters in the previous elections), labelling/identification requirements (e.g. Cyprus, [the former Yugoslav Republic of Macedonia]: paid political advertising should be properly and visibly labelled, from the commencement to the end of the programme, as "paid political advertising”). In Hungary, broadcasters must provide all parties with equal conditions (same price, same programme period etc.) but there are no specific restrictions concerning the amount of political advertising.
Worth noting is that in several countries, such as in [the former Yugoslav Republic of Macedonia], public service broadcasting is not allowed to broadcast paid political advertising, only private broadcasters may do so.
Countries with no restrictions on paid political advertising
This is the case for instance in Austria, Estonia, Finland and Poland. In Poland, the issue of restrictions to political advertising is regulated by each broadcaster by means of internal advertising codes.
Analysis & Comments:
• The often mentioned East-West divide with regard to the ban of political advertising, even if it reflects a real trend, may be somewhat misleading. The West-European Countries which allow this practice are often forgotten in comparative overviews.
• In view of the different positions on this matter, the Council of Europe does not take a stance on whether paid political advertising should be accepted or not, and simply limits itself to stating in its Recommendation “that if paid advertising is allowed it should be subject to some minimum rules (...)”.
• Most countries which allow paid political advertising have introduced some limits so that this practice is not necessarily always discriminatory. All parties may be offered the same opportunities. However, this “equality of opportunity” is only real when all parties have the necessary funds at their disposal to buy the same amount of time. ...”
69. The Survey summed up the issues as follows:
“The lack of explicit definitions and the great diversity of national traditions are likely to create confusion between European counterparts when referring to political advertising. Generally, the term “advertising” as in political advertising is used in the broadest sense as political propaganda. As a rule, national advertising provisions are not applicable as they require payment or similar consideration. However, in some countries, political advertising is subject to the general legal provisions on advertising. ...
Rather surprisingly, a few countries do not impose any restrictions at all on paid political advertising. However, it does not seem to raise any specific problem or to cause any concern. ...
In the vast majority of countries, parties and/or candidates are usually granted free airtime, often but not exclusively on public service broadcasters to present their programmes. It is interesting to note that such a system does not exist in a few countries, where there is no official electoral campaign scheme on television. ...
It is sometimes argued that if candidates and parties have fair access to free airtime during election campaigns, there is less (or no) need for paid political advertising. This cannot be systematically verified in practice as the existence of a scheme for allocating a free airtime does not prevent some countries to allow paid political advertising. ...
In many (Western) European countries, the most burning topic at present seems to be “issue advertising”, i.e. messages with a political end emanating from organizations which are not political parties, such as interest or societal groups. Further to the ECHR ruling, a few countries have restricted the scope of the ban of political advertising and now allow such spots - outside election periods. ...”
The summary ended with the following question:
“Are the current total bans (including issue advertising) justified in a “relevant and sufficient manner” so that they would survive scrutiny under the ECHR? Do they constitute a disproportionate restriction on the freedom of expression?”
70. This paper commented upon recent Convention case-law. It noted that the VgT case had opened an original perspective since Article 10 now appeared to require a positive intervention by the State to implement a form of right to broadcast through advertising space. The paper compared Appleby and Others v. the United Kingdom judgment (no. 44306/98, ECHR 2003VI), which emphasised the value of access to other media, and the above-cited Murphy case which did not accept arguments based on VgT.
71. While the EPRA study of 2006 included certain non-Contracting States, the Court has reviewed 34 Contracting States including 7 (Monaco, Russia, San Marino, Serbia, Slovenia, Turkey and Ukraine) which were not covered in the EPRA study. Since the 2006 report of the EPRA, there have been relevant changes to the regulatory regimes in 25 Contracting States, most of which have been relatively significant.
72. Of 34 States examined, 19 States prohibited paid political advertising in some form. In this latter respect, the scope of the prohibition in 7 States (Czech Republic, France, Germany, Ireland, Portugal, Spain and Sweden) as well as the United Kingdom could be considered wide either because of the wide definition of “political”, because of its application outside of electoral periods or for both reasons. However, even for these 7 States, the definition and interpretation of “political” varies so that the prohibition could arguably be (Ireland) or has been (Czech Republic, France, German, Portugal and Spain) applied to allocate airtime to certain NGOs (such as the Red Cross, Greenpeace) to certain governmental organisations (such as UNHCR) and to some national charities. The trend in the vast majority of the Contracting States reviewed is to allow the broadcasting of advertisements of a certain social interest nature from certain bodies.
73. Recommendation R(1999)15 of the Committee of Ministers on measures concerning media coverage of election campaigns provided:
In member States where political parties and candidates are permitted to buy advertising space for electoral purposes, regulatory frameworks should ensure that:
- the possibility of buying advertising space should be available to all contending parties, and on equal conditions and rates of payment;
- the public is aware that the message is a paid political advertisement.
Member States may consider introducing a provision in their regulatory frameworks to limit the amount of political advertising space which a given party or candidate can purchase.”
74. The Explanatory Memorandum to that Recommendation noted:
Paid political advertising in the broadcast media has traditionally been prohibited in many Council of Europe member States, whilst it has been accepted in others. One of its major advantages is the opportunity which it provides for all political forces to widely disseminate their messages/programmes. On the other hand, it may give an unfair advantage to those parties or candidates who can purchase important amounts of airtime.
In view of the different positions on this matter, the Recommendation does not take a stance on whether this practice should be accepted or not, and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules: one, that equal treatment (in terms of access and rates) is given to all parties requesting airtime, and two, that the public is aware that the message has been paid for.
It may also be considered important to set limits on the amount of paid advertising that can be purchased by a single party. Nevertheless, the Recommendation does not specify whether it is desirable to do so nor does it set any precise limits on the amount of paid advertising, as it is considered that the decision on this matter should be taken at the national level.”
75. On 7 November 2007 Recommendation Rec(2007)15 revised R(1999)15. The Draft Explanatory Memorandum noted:
“78. In view of the different positions on this matter, Recommendation CM/Rec(2007) ... does not take a stance on whether this practice should be accepted or not, and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules, in particular that equal treatment (in terms of access and rates) is given to all parties requesting airtime.”
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-77578
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KESYAN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-1 and P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1952 and lives in the town of Sochi, in the Krasnodar Region.
5. On 31 July 1998 the applicant sued the Rostov Regional Department of the Federal Treasury and Mrs O. in tort. A stamp on his statement of claims shows that the Kuybyshevskiy District Court of the Rostov Region received the statement of claim on the same day. According to the Government, the District Court received the statement of claim on 5 August 1998 and listed the first hearing for 22 September 1998.
6. On 22 September 1998 the hearing was adjourned due to the judge's leave. The following hearing on 28 December 1998 did not take place because of the defendants' absence.
7. On 11 February 1999 the District Court ordered an expert study and stayed the proceedings. The experts' report was received by the District Court in September 1999.
8. In October 1999 the applicant's representative amended the claims and asked the District Court to resume the proceedings and to question witnesses. The applicant then again amended the claims in November 1999.
9. On 25 November 1999 the District Court resumed the proceedings and summoned witnesses.
10. Between 25 November 1999 and 3 October 2000 the District Court listed eight hearings, of which three were adjourned because the defendants defaulted and five were postponed because none of the parties attended.
11. On 3 October 2000 the District Court adjourned the proceedings because the applicant appeared to have lost interest in the case. The applicant's representative objected to that decision, indicating that neither he nor the applicant had been duly apprised of the hearing dates.
12. On 12 July 2001 the District Court quashed the decision of 3 October 2000 and resumed the proceedings, having found no evidence that the applicant and/or his representative had been duly notified of the hearings.
13. Upon the applicant's request, on 10 October 2001 the District Court adjourned the proceedings because a similar claim was pending before another court. The proceedings were resumed on 30 September 2002.
14. Between 30 September and 20 December 2002 three hearings were adjourned because the parties did not attend.
15. On 20 December 2002 the District Court suspended the proceedings by reason of the applicant's repeated failure to appear. The proceedings were then resumed on 23 January 2004 once it had been discovered that the applicant and his representative had not been duly summoned to the hearings.
16. Of the ten hearings listed between 20 February and 16 November 2004, four hearings were adjourned due to Mrs O.'s absence, two hearings due to the parties' absence, one upon the applicant's representative's request and two because the presiding judge was on leave.
17. On 16 November 2004 the Kuybyshevskiy District Court dismissed the applicant's claim. On 16 February 2005 the Rostov Regional Court quashed the judgment of 16 November 2004 and remitted the matter for a new consideration by the District Court.
18. The Kuybyshevskiy District Court listed the first hearing for 18 May 2005. Of the three hearings fixed between 18 May and 28 June 2005, two were adjourned because the defendants defaulted and one was postponed upon the defendants' request.
19. On 28 June 2005, upon the applicant's request, the District Court ordered an expert study and stayed the proceedings.
20. The proceedings were later resumed and on 15 December 2005 the Kyubyshevskiy District Court partly allowed the applicant's action. The judgment of 15 December 2005 was upheld on appeal by the Rostov Regional Court on 28 February 2006.
21. On 8 August 1996 the applicant transported goods in his car from Ukraine to Russia and crossed the border without declaring the goods at the Russian customs. On the same day policemen of the Rostov Regional police department stopped the applicant and seized his car due to a violation of customs regulations. On 16 October 1996 the Taganrog town customs issued a confiscation order in respect of the car and organised its sale in November 1996 through a private company.
22. The applicant brought an application to a court seeking invalidation of the confiscation order of 16 October 1996. On 29 June 1999 the Taganrog Town Court quashed the confiscation order of 16 October 1996 and held that the Taganrog town customs should return the car to the applicant. The judgment did not become final as the town customs appealed against it.
23. On 2 July 1999 the Taganrog Town Court issued a charging order over the car with a view to preventing it from being sold, holding that the car should be seized and returned to the applicant. The charging order was binding, enforceable and addressed to any current holder of the applicant's car.
24. On 5 July 1999 the applicant's representative handed over the charging order of 2 July 1999 to the bailiffs. The covering letter of 5 July 1999 listed a writ of execution of 2 July 1999 as an enclosure and bore a stamp of the Taganrog Town bailiffs' service.
25. In July 1999 the bailiffs established that the private company had sold the car to Mr S. in 1996. However, they did not impound the car.
26. On 21 June 2000 the Rostov Regional Court quashed the judgment of 29 June 1999 and remitted the matter concerning the confiscation order of 16 October 1999 for a fresh examination. The charging order of 2 July 1999 remained unaffected.
27. On 26 September 2000 the applicant successfully amended his claims. He dropped his claims against the Taganrog town customs and sought repossession of his car from Mr S.
28. In October 2000 a bailiff asked Mr S. about the location of the car. A written statement by Mr S. read as follows:
“I use [the car] for transportation of goods from Moscow to Rostov. It is kept at my house in the town of Azov, the address: Yuzhnaya street, 4, in the territory of MTP “Ikar”. The car is now in Moscow but it will come back around Monday...”
29. In October, November and December 2000 the bailiffs ordered that Mr S. produce the car to the Taganrog town bailiffs' office. Mr S. did not respond.
30. On 20 November 2000 the Taganrog Town Court adjourned the enforcement proceedings, upon Mr S.'s request. That decision was quashed by the Rostov Regional Court on 14 February 2001. The matter was remitted for a fresh examination to the Town Court and the enforcement was resumed.
31. In October 2001 Mr S. asked the local road police department to cancel the car registration on the ground that it would be sold to a purchaser in Ukraine.
32. In November 2001 Mr S. informed the bailiffs that the car had been sold. The bailiffs, in their turn, told the applicant that the car had been sold and that Mr S. had refused to inform them who had bought the car. They asked whether the applicant would be willing to pay for the search of the car. The applicant agreed to bear the costs.
33. On 10 January 2002 the Taganrog Town Court issued a judgment by which Mr S. should return the car to the applicant. On 28 February 2002 a writ of execution was issued. The applicant submitted it to the bailiffs and asked them to calculate an approximate cost of the search. On 15 March 2002 enforcement proceedings were instituted, but the applicant's request for the calculation remained unanswered.
34. In July 2002 Mr S. bought a new car and asked the road police department to have it registered. A copy of the request indicated Mr S.'s home address.
35. On 27 December 2002 the enforcement proceedings related to the judgment of 10 January 2002 were discontinued because the bailiffs could not, allegedly, find Mr S.'s residence or the vehicle.
36. On 1 April 2003 the Taganrog Town Court ordered the bailiffs to impound three cars belonging to Mr S. with a view to enforcing the judgment of 10 January 2002. According to the Government, the bailiffs began searching for the cars on 24 October 2003, but never completed it because the applicant had refused to advance payment.
37. On 29 May 2003 the Taganrog Town Court, upon the applicant's request, ordered that Mr S. pay the applicant 462,384 Russian roubles (RUR) in lieu of the car. The judgment became final on 10 June 2003 and on 2 July 2003 enforcement proceedings were instituted.
38. In June 2003 Mr S. applied for renewal of his passport. His passport application listed his unchanged place of residence. On 16 August 2003 Mr S. received the passport.
39. In September 2003 the bailiffs, in the enforcement proceedings related to the judgment of 29 May 2003, issued a decision stating that Mr S. did not have any property and that the place of his residence was unknown.
40. In January 2004 the applicant received a calculation of the advance payments for the search of Mr S.'s property. He was to advance RUR 50,000 (approximately EUR 1,500).
41. In 2005 the applicant asked a prosecutor's office to institute criminal proceedings against Mr S. for his failure to abide by an enforceable judicial decision. In March, July and August 2005 an investigator questioned Mr S. Criminal proceedings were not instituted. The prosecutor's documents listed the same place of Mr S.'s residence as in 2002 and 2003.
42. On 3 October 2005 the bailiffs initiated the search of Mr S.'s property without any advance payment by the applicant. It appears that the enforcement proceedings are still pending.
43. On several occasions the applicant complained to the courts about the bailiffs' failure to enforce the charging order of 2 July 1999 and the judgments of 10 January 2002 and 29 May 2003.
44. On 22 November 2001 the Taganrog Town Court dismissed one complaint, finding that the bailiffs had acted properly, that they had known that Mr S. had purchased the car but had no reason to doubt that Mr S. had not been willing to return it. The bailiffs could not be held liable for the sale of the car by Mr S.
45. On 12 February 2003 the Azov Town Court dismissed another complaint, holding that the decision of 27 December 2002 (by which the enforcement proceedings in respect of the judgment of 10 January 2002 had been discontinued) had been lawful because it had been impossible to locate Mr S. or his property. Although on 14 November 2001 the applicant had agreed to pay for the search of Mr S.'s property, the costs had not yet been calculated. The judgment of 12 February 2003 was upheld on appeal on 9 April 2003.
46. On 13 November 2003 the Azov Town Court dismissed the applicant's complaint about the bailiffs' failure to enforce the judgments and to provide him with the calculation of the costs for the search of Mr S.'s property. The court held:
“From the contents of the applicant's complaint about the acts (failures to act) of the bailiffs... it does not appear what rights or lawful interests have been violated and whether any damage has been caused, the complaint is unsubstantiated and may not be granted.”
47. Article 87 of the Russian federal law “on enforcement proceedings” (Law no. 119-FZ of 21 July 1997) provides for certain measures which the bailiffs may take when private persons or public officials fail to comply with lawful orders, provide false information about a debtor's income and financial status, do not inform a bailiff about the debtor's dismissal from work, a change of the debtor's places of work or residence or when they do not respond to the bailiff's summonses. These measures include a fine of up to 100 minimum wages, escorting a defaulting party by force to a place where enforcement actions are performed and institution of criminal proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88820
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ABRAMYAN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Violation of Art. 6-3-a and 6-3-b;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1974 and lives in Pyatigorsk, Stavropol region.
7. On 16 June 2000 criminal proceedings were brought against the applicant, a police investigator. The investigating authority charged him with taking a bribe involving a large sum of money, aggravated by extortion, under Article 290 § 4 (c) and (d) of the Criminal Code, together with a number of other offences.
8. The applicant and his lawyer were present at the hearings before the Stavropol Regional Court.
9. On 2 October 2000 the Stavropol Regional Court delivered a judgment. In respect of the legal characterisation of the acts the applicant was found to have committed, it held as follows:
“... the court finds the classification of the acts of Abramyan E.N. by the preliminary investigation authorities to have been erroneous and classifies his acts under Articles 30 § 3 and 159 § 3 (b) of the UK RF [Criminal Code of the Russian Federation]. It was established that Abramyan, through the abuse of official authority and with a view to misappropriating another’s property, misled witness [L.], claiming that he would forward her case to a court. He then fraudulently obtained two thousand US dollars from [L.], via [D.], having kept from [D.] and [L.] the fact that the proceedings had already been terminated. Taking into account the amount that was stolen and the fact that Abramyan had no real opportunity to dispose of the money, having been arrested at the scene, the court regards his acts as attempted misappropriation, through the abuse of official authority, of another’s property, involving a large sum of money, since he committed all the acts necessary in order to misappropriate another’s property and failed to complete the crime due to circumstances beyond his control.”
10. The court convicted the applicant under Articles 30 § 3 and 159 § 3 (b) of the Criminal Code, acquitted him on the remaining charges and sentenced him to seven years’ imprisonment and imposed a confiscation order.
11. According to the record of the hearing, after pronouncing the judgment the presiding judge explained to the applicant the procedure and time-limit for appealing against the judgment. He explained that convicted persons could participate in the examination of their case by an appeal body.
12. The applicant appealed against the judgment. In particular, he complained that the court’s classification of his actions had been erroneous. In his appeal against the judgment the applicant did not request that he be summoned to the hearing before the appeal court or that he be informed of the date of the hearing. Nor did he or his lawyer lodge a separate request to that effect.
13. On 27 December 2000 the Supreme Court of the Russian Federation held an appeal hearing at which neither the applicant nor his counsel were present. The Supreme Court heard a prosecutor K. who argued that the judgment should be upheld. It examined the applicant’s points of appeal, reviewed the judgment and found that the trial court had correctly established the facts based on the evidence examined by it and had given the correct legal classification of the acts which the applicant had been found to have committed. The Supreme Court upheld the judgment.
14. On an unspecified date in 2003 the applicant was released on parole.
15. Under Article 335 of the Code of Criminal Procedure of 1960 (“the CCP”), in force at the material time, the public prosecutor would state his or her opinion at an appeal hearing as to whether a judgment was lawful and wellfounded. Defence counsel could participate in the hearing. A decision about the defendant’s participation at the hearing was taken by the appeal court. A defendant who appeared before the court was always entitled to give evidence.
16. In Decision no. 27-P of 10 December 1998, the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCP incompatible with the Constitution on the grounds that this provision enabled appeal courts to take a final decision where a defendant’s request to attend the appeal hearing had been rejected and where a defendant had not been given an opportunity to study the materials of the hearing and communicate in writing his or her opinion on the issues raised before the appeal court.
17. Article 336 of the CCP provided that persons who had submitted appeals were to be apprised of the appeal hearing if it was held before courts lower than the Supreme Court of Russia. If an appeal was to be examined by the Supreme Court, an appellant would be apprised of the appeal hearing if he or she had requested the court to do so in their appeal or observations on the appeal. Notification of the time of the hearing on appeal was to be displayed at the court not later than three days before the hearing.
18. In Decision no. 200-O of 17 October 2001, the Constitutional Court held that the provisions of Article 336 of the CCP could not serve as a basis for failing to inform persons entitled to appeal against judgments about the date of examination of their appeals by a court of any level.
19. Article 338 of the CCP required that, at the beginning of an appeal hearing, the presiding judge should verify who was present and the court should decide whether to proceed with the hearing.
20. The appeal courts considered, on the basis of the materials in the case file and newly submitted materials, whether a first-instance judgment was lawful and well-founded. They were not bound by the grounds of the appeal and exercised a full review of the case (Article 332 of the CCP).
21. Under Articles 339-341 of the CCP appeal courts could decide to dismiss the appeal and uphold the judgment, to quash the judgment and remit the case for a new investigation or for a fresh trial, to terminate the criminal proceedings or to vary the judgment. It could reduce the sentence or amend the legal classification to the defendant’s advantage. If it found the sentence or legal classification to be too lenient, it could quash the judgment only if an appeal on such grounds had been filed by the prosecutor or the victim. Acquittals could be quashed on appeal at the request of the prosecutor, the victim or the acquitted person.
22. Article 342 of the CCP
Grounds for quashing or varying judgments [on appeal]
“The grounds for quashing or varying a judgment on appeal shall be as follows:
(i) prejudicial or incomplete inquest, investigation or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) a grave violation of procedural law;
(iv) improper application of [substantive] law;
(v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.”
23. Article 254 of the CCP required the court to examine the case on the basis of the charges brought against the defendant. The charge could be amended by the court provided that such amendment did not aggravate the situation of the defendant or violate his right to defend himself. If the amendment entailed a violation of the defence rights, the court had to remit the case for additional investigation. It did not have powers to prefer a more serious charge or a charge based on substantially different factual circumstances. The court could continue the trial if the amendment related only to the deletion of certain counts or aggravating circumstances.
24. An official who – personally or through an intermediary – receives a bribe in the form of money, shares or other property or benefits for acts (or omissions) in the interest of the bribe-giver, provided that such acts are within the competence of the official or the official can facilitate the performance of such acts by virtue of his position, commits a criminal offence (Article 290 § 1). The same acts, if they are aggravated by extortion (Article 290 § 4 (c)) or involve a large sum of money (Article 290 § 4 (d)), are punishable by seven to twelve years’ imprisonment, which may be accompanied by a confiscation order.
25. Article 159 § 1 provides that fraud, that is theft of others’ property or acquisition of rights to others’ property by way of deception or abuse of confidence, is a criminal offence. Article 159 § 3 (b) specifies that a fraud involving a large sum of money is punishable by five to ten years’ imprisonment, which may be accompanied by a confiscation order.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-a