Thursday 25 April 2013

Animal Defenders International v. UK Grand Chamber Judgment - Ban on Political Advertising Upheld

At the start of this week, the Grand Chamber of the European Court of Human Rights upheld the United Kingdom's ban on political advertising for TV and radio in Animal Defenders International v the United Kingdom. The NGO Animal Defenders International had been refused permission to have their commercial aired, which was geared against the use of animals for commercial and leisure reasons (circuses, zoos, advertising) and scientific testing.

For many reasons this is a very interesting judgment, not in the least because the Grand Chamber was divided to the bone and one can sense some of the intense discussions that must have been going on in the Court from the various separate opinions. In addition, one may wish to compare and contrast the European Court's treatment of the issue to that of the US Supreme Court a few years ago (Citizens United). More or less explicitly, the judgment also reveals different ideas about the democracy and the role of freedom of expression therein. Although the judgment deviates from previous case-law, I tend to agree with the (very slight) majority's concern over the risks posed by "wealthy bodies with agendas being fronted by social advocacy groups created for that precise purpose" (para. 122). This does not mean that such a kind of ban would offset any undue influence, since other media are still open, nor does it address more indirect, less open ways of influencing and lobbying of course. Although some of the dissenters state that a "robust democracy is not helped by wellintentioned paternalism", one may also not wish to end up in the situation which currently exists in the US where paternalism (in this particular sense at least, not in others) may be absent and where democracy is seen to be robust, yet intensely flawed amongst others because of political advertising. Whatever one may think of it, the issue is very difficult obviously, since a general ban also has huge disadvantages. Lawyers and academics studying law may instinctively be more drawn to systems in which every instance can be individually assessed by a judge rather than by general bans. It would therefore also be interesting to see what media researchers would make of this ban and this judgment. Also, behind the different views lie different philosophies about human nature and about the extent to which one can trust the state. Another aspect is that the emphasis put on the margin of appreciation and the exacting review of the UK's ban both by Parliament and the judiciary, may be seen by some as either a form of judicial dialogue ("listening" to what national judges and authorities say) or as a form a cautious judicial politics after the stand off in the prisoners voting cases.

For your convenience, please find here an overview of some of the early comments on the case online:

- UK Human Rights Blog, 'Strasbourg ties itself in knots over advertising ban' (calling it a "profoundly ad day for democracy");
- Inforrm's Blog, 'A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio' (referring to the judgment as "a pleasant surprise" for the realism it reflects);
- Strasbourg Observers, 'Ban on Political Advertising Does Not Violate Article 10: Animal Defenders International v. UK' (indicates that the judgment "departed substantially from the Court’s previous case law on political advertising, and introduced a new method for reviewing the proportionality of such blanket-bans.");

The press release of the judgment can be found here.