In a concurring opinion, Judge Bratza comments on the wider issues raised by the complaint and provides a lengthy justification for the prohibition on political content in UK radio and television.
Such prohibition is created by the Communications Act 2003, section 321(2) of which states that 'an advertisement contravenes the prohibition on political advertising if it is':
(b) an advertisement which is directed towards a political end; or
(c) an advertisement which has a connection with an industrial dispute.
What counts as 'political' has very wide scope and includes actions aimed at 'influencing the outcome of elections or referendums' and 'bringing about changes of the law' to 'influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy'.
In the case in question, the applicant was contesting the refusal by UK authorities to permit the showing of a 20 second television advertisement about cruelty towards primates.
In his concurring opinion, Judge Bratza concentrates on the 'purpose of the general prohibition in the legislation' and states that '[a]lthough the situation of an individual applicant cannot be ignored, it is the justification for the law in general which should in my view be at the heart of the Court’s examination'.
The justification for the prohibition on political advertising in broadcast media is, in Judge Bratza's view, that it avoids 'leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the political cause in question, with the attendant risks of discriminatory treatment'.
Judge Bratza expands on the 'attendant risks of discriminatory treatment' in the following terms:
'As pointed out by the national courts, while the protection of animals from commercial exploitation might be a relatively uncontroversial subject, there are other areas where this would be very far from the case and where the risks of distortion would be particularly high – abortion, immigration, gay marriage and climate change are obvious examples'.
The inclusion of 'gay marriage' in this list of areas where discrimination might result from 'distortion' created by political advertising in broadcast media is interesting. It is difficult to tell from Judge Bratza's comments exactly what kind of advertising about same-sex marriage he fears would create a high risk of distortion - would it be adverts in favour of same-sex marriage, against it, or a mix of both? However, if Judge Bratza is defending a prohibition on broadcast advertisements by those opposed to same-sex marriage on the basis that it risks perpetuating or increasing the discrimination of sexual minorities, then that is (at the very least) an interesting and noteworthy interpretation of Article 10 of the Convention.