Controlling political and religious advertising on radio and television

The current UK ban on political advertising on radio and television remains legal – just. By the narrowest of margins – 9 votes to 8 – the Grand Chamber ECtHR has upheld the ban on broadcast political advertising in s 321(2) of the Communications Act 2003.

Animal Defenders International, a non-charitable organisation that campaigns on animal rights, took the matter to Strasbourg when the domestic courts refused to overturn a decision that a TV advertisement for its 2005 campaign, “My Mate’s a Primate”, was “political” and therefore banned under section 321(2). That decision was subsequently upheld by the High Court in 2006 and by the House of Lords in 2008.

In Animal Defenders International v United Kingdom [2013] ECHR 362 (GC) (22 April 2013) the Grand Chamber rejected the complaint and upheld the UK Government’s position. It noted that broadcast media were enormously influential and that advertisers were prepared to pay sums of money for broadcast advertisements which were far beyond the resources of most NGOs that wanted to take part in public debate. In the absence of any European consensus on how to regulate paid political advertising in broadcasting, it held that the matter was within the UK Government’s margin of appreciation and that the ban had not, therefore, amounted to a disproportionate interference with the ADI’s right to freedom of expression under Article 10 ECHR.

Comment: This is relevant to charities (including religious organisations) for various reasons. First, it maintains the distinction between broadcast advertising as part of public debate and broadcast advertising as part of direct political campaigning – a distinction which, presumably, most charities (and Churches) would support. Secondly, it helps support the more general requirement of domestic law that charities may not have political campaigning as their primary purpose (remember the Atlantic Bridge affair?) and, again, the assumption is that most charities would welcome that as helping to protect the good reputation of “charity” rather than seeing it as a brake on their activities.

More generally from a law and religion perspective, however, the original ban – in the Television Act 1954 – explicitly linked political and religious advertising as follows:

“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”.

The blanket ban on religious broadcast advertising was subsequently lifted, but religious advertising on television and radio continues to be subject to some very stringent controls. Section 15 of the current UK Code of Broadcast Advertising, Faith, religion and equivalent systems of belief, states inter alia that:

“15.6 Advertisements must identify the advertiser and its faith, if that is not obvious from the context.

15.7 Television and television text advertisements must not expound doctrines or beliefs, unless they are broadcast on channels whose editorial content is wholly or mainly concerned with matters of religion, faith or equivalent systems of belief (“specialist broadcasters”). Advertisements carried by specialist broadcasters may express the advertiser’s opinion on matters of doctrine or belief but must not present it as unqualified fact and must make clear to the audience that it is the advertiser’s opinion. Radio advertisements may expound doctrines or beliefs if they are presented as the advertiser’s opinion.

15.8 Advertisements must not exhort audience members to change their beliefs or behaviour.

15.9 Advertisements must not refer to the alleged consequences of faith or lack of faith. They must not present the advertiser’s beliefs as the “one” or “true” faith.

15.10 Advertisements must not denigrate the beliefs of others”.

All of which, taken together, is somewhat restrictive. Back to Church Sunday, presumably “yes”: “Non-believers will burn in Hell”, emphatically “no”.

But what if the present rules were challenged at Strasbourg? In Mouvement Raëlien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012), a non-profit association set up to make contact with extra-terrestrials was refused permission to put up posters featuring the faces of extra-terrestrials, a flying saucer and the Movement’s Internet address and telephone number on the grounds that it had engaged in activities that were immoral and contrary to public order, not least by promoting human cloning – prohibited under Article 119§2(a) of the Swiss Federal Constitution. The Grand Chamber held that there had been no violation of Article 10 ECHR and agreed unanimously that it was not required to examine the complaint under Article 9 (thought, conscience and religion): the national authorities had not exceeded their proper margin of appreciation and their reasons in justification were “relevant and sufficient” and met a “pressing social need”. But, as in Animal Defenders International, it did so by a margin of 9 votes to 8.

So if opinions were so evenly divided on a proposed advertisement that actually advocated breaking Swiss federal law, would the GC be likely, given the apparent direction of travel, to uphold a ban on an advert claiming, for example, that the Four Noble Truths and the Eightfold Path were objectively true? The suspicion must be, probably not.

Finally, though Rosalind English at UKHRB takes a very different view of the decision, calling it “a profoundly sad day for democracy“,  Animal Defenders could equally be regarded as a small mercy for which supporters of the ECHR might, perhaps, be thankful. Had the UK lost, there would have been yet more howls of rage from the people in Whitehall and Westminster who are still smarting from the various rulings on votes for prisoners: at least, as this one’s turned out, we’ll be spared yet another silly row about “unelected judges” et al. Joshua Rozenberg’s comment in The Guardian was headlined, “Government will be mightily relieved at decision to uphold political ads ban”. I’ll bet it will…

Cite this article as: Frank Cranmer, "Controlling political and religious advertising on radio and television" in Law & Religion UK, 23 April 2013, http://www.lawandreligionuk.com/2013/04/23/controlling-political-and-religious-advertising-on-radio-and-television/

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