Faced with a TfL ban on North Cyprus holiday ads on London buses, the plucky Kyrenians were not going to roll over. They sought judicial review and with help from the Human Rights Act they won the day.
Topic: Outdoor
Who: Transport for London and the North Cyprus Tourism Centre Limited
Where: The Royal Courts of Justice, Strand
When: July 2005
What happened:
The North Cyprus Tourism Centre took Transport for London ("TfL") to court over its refusal to allow London buses to carry advertising promoting North Cyprus as a holiday destination.
The poster in question, which had previously been carried on London buses in 2004, showed a family on a beach below the Crusader and Venetian Fortresses at Kyrenia. It featured the strapline "Pure Mediterranean … North Cyprus … a sanctuary of unspoilt beauty". In March 2005, TfL had turned down a request from the North Cyprus Tourism Centre (NTCT) to re-run the ad, saying that it was likely to cause widespread or serious offence.
Complaints received
Apparently the Mayor of London's office had received a number of complaints about the previous campaign. The complaint was based on the premise that Turkey had illegally occupied Northern Cyprus for the past 30 years and that Northern Cyprus was not recognised by any government other than that of Turkey.
There was concern as to the link in the poster to a website, which described the NTCT as "The UK representative office of the North Cyprus Tourism Ministry".
This was in essence misleading, TfL argued, because punters who visited the website referred to in the ad would be under the impression that North Cyprus was a recognised state, and the statements including the word "Ministry" amounted to an unjustified and misleading assertion of legality.
Ban challenged
NCTC took TfL to court over the ban. The case finally ended up in front of Mr Justice Newman in the administrative court of the Queen's Bench Division of the Royal Courts of Justice. The case took the form of an application for "Judicial Review" of TfL's decision on grounds of error of law, error of fact, irrationality and inconsistency with Article 10 of the European Convention of Human Rights safeguarding freedom of expression.
NCTC won on all counts and the TfL ban was overturned.
TfL's submission "far-fetched"
The Judge regarded TfL's submissions as to the position of Turkey and Northern Cyprus as a "controversial interpretation" of the situation. He also thought it was far-fetched to suggest that the combination of the poster and the website was likely to cause offence or amounted to a misrepresentation.
On the free commercial speech/"Article 10" issue, he considered the requirements of the article. These are that to survive legal challenge, any restriction on freedom of expression had to be justified as being necessary to protect either national security, or the safety of the public or the rights and reputation of others. The restriction must also be shown to meet some pressing social need and to be proportionate.
Ad ban "disproportionate"
Having considered the evidence, the Judge determined that the TfL ban was a serious restriction on the right to freedom of expression and there was no relevant justification under Article 10 of the convention available to TfL. He also took the view that the ban was in any event disproportionate by blocking all advertisements for North Cyprus on all property controlled by TfL from any source at any time.
TfL had also argued that the ban was justified because the Mayor of London had issued a statutory direction to TfL under section 155 of the Greater London Authority Act 1999. This direction required TfL to promote good relations between persons of different racial groups and TfL had determined that the proposed advertising was likely to undermine this objective.
Newman J rejected these arguments. In his view, "no offensive product or service was offered by this advertisement, which merely illustrated the cultural and environmental delights of Northern Cyprus". As such, the Judge could not accept that the advertising was likely to cause serious or widespread offence to any particular section of the community.
Why this matters:
The Turkish Cypriot community has hailed the judgment as a milestone in the long-term aspirations of all Turkish Cypriots who simply wish to enjoy the same human rights and privileges afforded to everyone else around the world.
This might be slightly over-egging the world importance of the judgment, but it is nevertheless a significant development for the defenders of free commercial speech and an important example of the operation of the Human Rights Act in the context of advertising.
Media owners who impose arbitrary bans on accepting advertising from particular advertisers should take particular note.
