Political Ads on TV: As You Were
Although most informed observers thought the European Court of Human Rights would rule against the UK’s ban on political advertising on television, the Grand Chamber has done the opposite. By the narrowest margin of nine votes to eight it has ruled that the ban is proportionate, and is therefore compatible with the freedom of expression, article 10 of the Convention on Human Rights.
Here is the important bit from the press release:
The Court rejected the applicant NGO’s arguments which took issue with the rationale underlying these legislative choices, finding notably that:
The broadcast media is influential, its impact immediate and powerful. There is no evidence that the development of the internet and social media in recent years in the United Kingdom has shifted this influence to the extent that the need for a ban specifically on broadcast media should be undermined;
Advertisers, well aware of the advantages of broadcasted advertising, continued to be prepared to pay large sums of money for such advertisements, which went far beyond the reach of NGOs wishing to participate in the public debate;
The ban was relaxed in a controlled fashion for political parties – the bodies most centrally part of the democratic process – by providing them with free party political, party election and referendum campaign broadcasts;
Allowing a less restrictive prohibition could give rise to abuse and arbitrariness, such as wealthy bodies with agendas being fronted by social advocacy groups created for that precise purpose or creating a large number of similar interest groups, thereby accumulating advertising time. Given the complex regulatory background, this form of control could lead to uncertainty, litigation, expense and delay.
As to the impact of the ban, the Court noted that the ban only applied to advertising and the applicant NGO had access to alternative media, both broadcast (radio and television discussion programmes of a political nature or adverts on radio and television on nonpolitical matters via a charitable arm) and non-broadcast (print media, the internet and social media, demonstrations, posters and flyers).
Finally, while there may be a trend away from broad prohibitions, there was no European consensus on how to regulate paid political advertising in broadcasting. A substantial variety of means are employed by the Contracting States to regulate political advertising, reflecting the wide differences in historical development, cultural diversity, political thought and democratic vision. That lack of consensus meant that the UK Government had more room for manoeuvre when deciding on such matters as restricting public interest debate.
The more interesting question is something to which I have alluded earlier (and see the PS here): the possibility that the European Court has been influenced by the political fuss in Britain about its rulings, notably on the right of prisoners to vote, and has consciously or unconsciously decided to draw back. Is that a vindication of Theresa May and Chris Grayling’s assertiveness, or does it undermine it?Tagged in: echr, freedom of expression, human rights, political advertising
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