From activism to self-restraint: the
strange case of the European Court’s
volte-face on broadcasting bans on
political advertising
Tom Lewis
Nottingham Trent University
Media Freedom and Regulation in the
New Media World
Budapest
24 April 2015
Freedom of expression – the sine qua
non of political democracy
But sometimes freedom of expression
itself can threaten democracy
In particular it can threaten equality of opportunity in
the democratic process – to tilt the playing field in
favour of the wealthiest players …
The power, and expense, of
broadcasting
The bogeyman – the USA
The UK - The Communications Act
2003 section 321
When a democratically elected legislature passes
a law restricting freedom of expression to
protect the integrity of democracy itself, what
should the approach of the court be to such a
law?
Activism?
or
Self-restraint?
Animal Defenders International
• My Mate’s a Primate
Verein gegen Tierfabriken (VgT) v
Switzerland (2002)
Eat less meat: for the sake of the
environment, the animals and your
health!
TV Vest AS and Rogaland
Pensjonistparti v Norway (2009)
Animal Defenders International v UK
All parties agreed that some limitations on
political ads were legitimate in order to protect
democracy
The real question was whether such a wide
broadcasting ban, covering not just wealthy
political actors, but also social advocacy groups
posing no threat democracy, was a proportionate
interference?
By 9 votes to 8 the Grand Chamber found no
violation of Article 10: the Communications Act
ban is a proportionate restriction on freedom of
political expression, in order to preserve the
impartiality of broadcasters and protect the
integrity of the democratic process (which
corresponds to the ‘rights of others’ under Art
10(2))
‘General Measures’
‘In order to determine the proportionality of a general measure,
the Court must primarily assess the legislative choices underlying
it.’ Of particular importance was:
• ‘the quality of the parliamentary and judicial review of the
necessity of the measure’, and the ‘risk of abuse if the general
measure were to be relaxed’, a question that was ‘primarily for
the state to assess’.
• Where a system of ‘case by case examination’ would ‘give rise
to a risk of significant uncertainty’, then it was more likely that
a general measure would be found to be a ‘more feasible
means of achieving the legitimate aim’ [108]
• ‘The
more
convincing
the
general
justifications for the general measures are, the
less importance the Court will attach to its
impact in a particular case.’ [109]
• Here there had been ‘exceptional examination’
and ‘exacting and pertinent reviews’ by both
parliamentary and judicial bodies to which the
Court attached ‘considerable weight’. [116]
• Because of the ‘wealth of historical, cultural and
political differences’ across Europe – ‘it is for each
state to mould its own democratic vision’ thus
widening the margin of appreciation [111]
• AND – the ban only applied to paid TV & radio
advertising – a host of other avenues remained open
(ordinary TV shows, internet, print, posters, public
protest); or ADI could be set up a charitable arm
which would be exempt from the ban [122]
Grand Chamber seems to be saying that an all
encompassing ban that has a legitimate aim, but which
catches within its broad sweep or fine mesh those who
pose no threat to democracy, is likely to be found
proportionate as long as there has been a proper debate
by
the
legislature
that
introduced
it…
1. Waters down proportionality
Becomes a review of the quality of the debate at
national level, rather than of the impact of the
measure on the individual in the particular case.
As long as a state ‘ticks the correct boxes’ in
terms of debate, this will exempt it from the
rigours of full proportionality review at any
subsequent Strasbourg hearing
2. Which is it: ‘general measure’ or
‘blanket ban’ ?
‘General measure’
(Animal Defenders)
‘Blanket ban’
(Hirst v UK (No 2))
3. Whither VgT and Pensioners Party ?
Double Standards?
In Switzerland, Norway (and Denmark) – it was NOT
OKAY to ban political TV ads
In United Kingdom – it was OKAY to ban political TV
ads
BUT WHY ? - just because of the quality of debate
preceding the ban?
(Judges Ziemele, Sajó et al )
4. Freedom of expression
‘This is a ban which concerns the most protected
form of expression (discussion on matters of
public interest) by one of the most important
categories of actors in the democratic process (an
NGO) and a form of media which remains
influential (radio and TV) without the least
exception’
(Judge Tulkens et al, dissenting [13]; and Judge Ziemele
et al, dissenting [2])
Is this a perfect example of sensible dialogue
between national authorities and the Strasbourg
Court?
… or, post ‘prisoner voting’, did the Grand Chamber
decide to think twice before again interfering in the
mechanisms of British democracy?