By Jacob Rowbottom – 

On Monday, the Grand Chamber of the European Court of Human Rights will give its long awaited decision in Animal Defenders International v UK. The Court will decide whether the ban on political advertising on the broadcast media (under the Communications Act 2003) violates Article 10. 

The case was taken to Strasbourg after the House of Lords upheld the ban in 2008. In that decision Lord Bingham explained the rationale for the ban, stating that ‘it is highly desirable that the playing field of debate should be so far as practicable level’ and warning that to allow high levels of spending on paid political advertisements would mean ‘elections become little more than an auction’.

The stance of the domestic courts stands in contrast to two previous decisions of the Strasbourg Court.  In VgT Verein gegen Tierfabriken v. Switzerland (2001), the Court found that a similar ban on broadcasting political advertising was a violation of Article 10, after it prevented an animal rights group buying airtime. More recently, in TV Vest AS and Rogaland Pensjonistparti v Norway (2008), a small political party successfully took its case to Strasbourg, arguing that the ban in that country violated freedom of expression. The British government intervened in that case (showing the Court the House of Lords’ decision in Animal Defenders International), asking the Court to confine the earlier decision in VgT Verein or depart from its reasoning. The Court rejected these arguments, finding that such a restriction on political expression called for a ‘strict scrutiny’ and limited margin of appreciation. The ban on political advertising in Norway was therefore found by the Strasbourg Court to be disproportionate. Given this track record, if I were to put money on it, I would bet that the Court finds a violation of Article 10 on Monday.

This does not mean the matter is a foregone conclusion. First, in Murphy v Ireland (2003), the Court found a ban on religious advertising not to violate Article 10. While Murphy might give some support to the UK’s position, the Court in Rogaland distinguished that case on the grounds that the religious advertisements in Ireland ‘might be liable to offend intimate personal convictions within the sphere of morals or religion’. So the Court following Murphy in relation to political advertising on Monday seems unlikely. A second possibility is that the Court might distinguish the position of the UK from the previous cases by looking at its distinctive media market, political system, broadcast regulations (such as impartiality rules and free airtime for political parties), etc. Furthermore, the Court might be persuaded to depart from the reasoning in its earlier decisions, as part of an ongoing dialogue with the domestic authorities.

Lurking behind the arguments is, of course, politics. Tensions between Strasbourg and the UK government are already high, following a number of decisions (such as those concerning prisoner voting rights and the deportation of Abu Qatada). A Strasbourg ruling against the ban on political advertising is only likely to make matters worse. It remains to be seen whether the prospect of a further negative reaction will cause the Court to more be more receptive to the arguments advanced by the UK.

Personally, I hope that the Strasbourg Court changes its course and finds that the ban does not violate Article 10. For all its bluntness, the ban has been central to keeping the cost of politics down in this country. Critics of the ban argue that alternative means can address the problems posed by money in politics. However, as I argued several years ago in Ewing and Issacharoff’s edited collection, partial controls on political advertising are unlikely to be effective or will pose difficult questions in themselves. If the Court upholds the ban, it would emphasize the importance of a fair political system in which the opportunities to communicate are not based on spending power, but where in Baroness Hale’s words ‘each person has equal value’. While I hope the Court takes this path, I am very doubtful it will reach such a conclusion given its previous decisions.

Jacob Rowbottom is a Fellow of University College, Oxford