Animal Defenders International (ADI) want to be able to
advertise in broadcasts, which is banned by the Communications Act.
It argued that the Act infringes its rights to free speech and
therefore breaches the European Convention on Human Rights.
The Act has an absolute prohibition on political advertising
except for controlled party political broadcasts which are usually
shown around the time of elections.
Charities are allowed to advertise if their ads are not "wholly
or mainly political" in nature, according to the Broadcast
Advertising Clearance Centre (BACC), which views and rates ads for
political content before broadcast. It ruled that the ADI campaign
'My mate's a primate' broke the rules.
Political advertising was banned in the Act in order to prevent
wealthy political interests from influencing the public more than
groups with less money through ads on television, which Parliament
believed was a more powerful and influential medium than others,
such as newspapers.
"The necessity for restrictions on political/social advocacy
broadcast advertising outside elections periods has been
convincingly shown," wrote Justice Ouseley in rejecting ADI's case.
"It is necessary to protect the rights of others through preventing
undue access to the broadcast media based on willingness and
ability to pay. At root it supports the soundness of the framework
for democratic public debate. The broadcast media remain pervasive
and potent throughout the period between elections."
The presiding judge Lord Justice Auld said that the case was
made difficult by the lack of any precedent regarding what should
be judged as "political" advertising. The court, he said, would
have to rely on "its own resources".
Auld said that the European Convention of Human Rights did not
provide a blanket right to free speech in all situations. "Article
10 does not provide absolute protection for political speech. Nor
does it entitle any person or body to a right of political
expression over the air waves," said Auld in his judgment.
"I have come to the view that Parliament in the context of the
over-all scheme of the 2003 Act for control of the content and
nature of political broadcasting, acted within the ambit of the
discretionary judgment available to it in introducing and
maintaining the prohibition on political, and that there is no
basis for granting the declaration of incompatibility sought by
ADI," he ruled.
“Although we were anticipating a tough fight, we are extremely
disappointed," said Tim Phillips, Campaigns Director of ADI. "This
may be the letter of the law but it is not justice. There is a
considerable inequity here, with Government and big businesses able
to use the broadcast media and their critics like ourselves
excluded."
ADI did say that the case had been given High Court permission
to proceed straight to the House of Lords for an appeal, though,
bypassing the usual Appeals Court process. "We believe the Court’s
decision today to allow us to go straight to the House of Lords is
testament to strength of our case," said Phillips. "We believe that
time will show that in this case UK law is simply out of step with
modern media practice with hundreds of television channels, and
also our rights under the European Convention of Human Rights.”
