Posted: 28 February 2012. Updated: 22 April 2013
Seven years ago, ADI produced a television advert for My Mate’s A Primate, a campaign highlighting the use of primates in four key areas: entertainment (circuses, films, TV programmes & advertising); the pet trade; in experiments; as bushmeat.
The advert, featuring a voice over by Alexei Sayle, uses a young actress to highlight the plight of performing apes in advertising. Knowing the rules on ‘political’ advertising, it was tailored to comply with broadcasting rules but, despite this, the advert was banned by the BACC (Broadcast Advertising Clearance Centre) because, under the Communications Acts 2003, ADI is deemed to be a ‘political’ group.
At present the UK law bans the broadcast of any advert which is an expression of opinion on a matter of controversy. So whilst primates and other animals can be used to sell products, it is not permitted to challenge their use on TV.
In response to the BACC’s decision and the government conceding that permission should be granted to challenge the ban, in October 2005, ADI issued a claim for judicial review against the Department of Media Culture and Sport, which is responsible for the Communications Act 2003 on the basis that the ban violates the right to freedom of expression under Article 10 of the European Convention on Human Rights.
Our challenge followed two other adverse rulings against Make Poverty History and the RSPCA, and a very similar ban in Switzerland which was declared incompatible with Article 10.
This is a test case in Europe for how issue advertising would be treated under the Human Rights Convention. If successful, the Court would find that the ban violates the right to freedom of expression and that the relevant provisions of the Communications Act 2003 are incompatible with human rights. The next stage would be that the Government would either have to amend the legislation immediately, or face proceedings in Strasbourg which would almost certainly come to the same conclusion, in which case the Government would then be obliged to take steps to remedy the violation.
Our case was heard in the High Court in October 2006, where we argued that the ban was too widely drafted and created unfairness in that organizations were unable to respond to claims made by companies in broadcast media. Although the court refused our application in December, it felt that the case needed to be heard and the Divisional Court gave permission for us to leapfrog the Court of Appeal and take the case straight to the House of Lords.
A boost came in May 2007, when the report of the Advisory Group on Campaigning and the Voluntary Sector, chaired by top lawyer Baroness Helena Kennedy, QC, agreed that the Communications Act 2003 has a censoring effect on the voluntary sector. The report included a recommendation that the ban on advertising by ‘political’ organisations be repealed.
In December 2007, our case was heard during a two day hearing at the House of Lords. Despite at least two of the four Law Lords appearing to be supportive, our appeal was dismissed in March 2008, a decision condemned by both ADI and Amnesty International.
The only option was to take our case to the European Court of Human Rights in Strasbourg, where it was heard – seven years after the advert was due to be aired – on 7 March 2012. We are now waiting for their decision.
You can watch a webcast of the hearing here.
We hope that justice and common sense will prevail and organisations like ours will no longer be gagged from broadcasting whilst Government and big business are given free rein.