Tuesday, 23 April 2013

Judge Bratza cites 'gay marriage' to justify the prohibition on 'political' advertising in UK broadcast media

The Grand Chamber of the European Court of Human Rights yesterday issued its judgment in Animal Defenders International v the United Kingdom, in which it held by the narrowest majority (9-8) that the prohibition on 'political' advertising in UK broadcast media did not violate the applicant's right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights.  

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 2003section 321(2) of which states that '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.

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.   

2 comments:

  1. Is the 'attendant risks of discriminatory treatment' not risk of discriminatory treatment in making judgements about what ought to be allowed as an advert? As opposed a risk of anti same-sex marriage adverts creating wider discrimination?

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    1. I think that is good point, Daniel. But Judge Bratza does seem to be suggesting that there are certain controversial issues that risk a high level of 'distortion' if political advertising on broadcast media is allowed. I took that to mean distortion in media content and its effects, both of which the Communication Act 2003 attempts to regulate. I read the phrase 'attendant risks of discriminatory treatment' as relating to distortions created in respect of the advertiser in question as well as the affects of the advert in the wider public sphere. I read it this way because Bratza seems to suggest that in the case of the treatment of animals this risk is not really relevant because it is a socially uncontroversial subject (although this is itself highly debatable) but in other controversial cases distortions (and thus discrimination) are more likely. If the phrase is read in such a way that it relates only to the advertiser, he or she may of course be a sexual minority and suffer discrimination on the grounds of sexual orientation because of an individual judgment on content (which would itself further perpetuate sexual orientation discrimination).

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