Animal Defenders International was refused permission to advertise on TV its campaign against the use of primates for public entertainment. ADI saw no justification for this when in print they were allowed. Stephen Groom reports the court’s view.
Who: Animal Defenders International vs the Secretary of State for Culture, Media & Sport
Where: The Administrative Court of the High Court of Justice, London
When: December 2006
The Administrative Court gave judgment on an application by animal rights group Animal Defenders International ("ADI") for a declaration that the prohibition in the Communications Act 2003 on political advertising on TV or radio was incompatible with the free speech provisions of the European Convention on Human Rights ("ECHR") (Article 10).
The challenge followed the refusal by the Broadcast Advertising Clearance Centre ("BACC"), the body which pre vets on behalf of the networks all proposed advertising on UK commercial TV, to allow the TV airing of a commercial submitted on behalf of ADI.
The commercial supported ADI's campaign called "My mate's a primate" against the use of primates for public entertainment, particularly in zoos and circuses.
The BACC took the view that the commercial would breach the prohibition of political advertising on TV and radio in section 321 (2) of the Communications Act 2003. This flowed from the fact that ADI did not have charitable status and as a body campaigning for changes in law and public policy against the use of animals in commerce, science or leisure, was a body with mainly political objects.
Why TV but not print?
ADI did not dispute this assessment of its status or of the advertisement as political. What it did dispute was the distinction between the prohibition of political advertising on TV or radio and the absence of any such ban on non broadcast political ads.
The issue before the court was whether this distinction was "necessary in a democratic society…for the protection of the …rights of others, when put against one of the most fundamental of human rights for which the ECHR provides, that of freedom of expression".
ADI submitted that the ban was not justified insofar as it extended beyond political parties engaged in an electoral process to bodies such as ADI who were involved in a wider political process.
In the court's view, all governmental bodies in states subject to the ECHR must be allowed by the courts a discretionary area of judgment in deciding how to regulate complex issues of social policy. Because of the "potency and pervasiveness of the broadcast media and its corresponding vulnerability to abuse by powerful or well-placed interests to distort the democratic process unfairly to their advantage," great store had been put by establishing a regime of impartiality in these media.
Against this backdrop, had the UK government gone about imposing the prohibition in an excessively wide and restrictive way?
The court did not think so. To restrict the ban to political parties during election periods would not have been logical as it would leave the desired impartiality unprotected at all other times. Also, it was difficult to clearly delineate the distinction between party political matters and other matters of public importance and controversy. This made it not unreasonable for the statute to extend the ban to ads by those within the inclusive definition "a body whose objects are wholly or mainly of a political nature".
Accordingly the Court held that in drawing s 321 of the Communications Act in the way it did, the Government had acted "within the ambit of the discretionary judgment available to it" and there were no grounds for the declaration of incompatibility with the ECHR sought by ADI.
Why this matters:
A verdict the other way would have been sent shockwaves through the good cause sector and changed radically the landscape of broadcast advertising. As it is, this issue has been under debate for some while and the clarity and certainty on the matter that this verdict provides will be welcome to most. We will have to wait and see whether ADI will appeal.