Posted: 22 April 2013. Updated: 29 April 2013
ADI has today expressed its profound disappointment after the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.
Jan Creamer, Chief Executive “This is a profoundly sad day for democracy. It is unjust that companies can advertise without being challenged. This judgment has denied the right of ADI and other similar campaign and advocacy groups to refute advertising claims made by companies.”
Created for ADI’s My Mate’s A Primate campaign on the threats to the survival of primates around the world and their use in entertainment, the pet trade, in laboratories and bushmeat, the prohibited advert highlights the plight of performing apes in advertising and features a young actress and a voice-over by comedian Alexei Sayle.
The advert was tailored to comply with broadcasting rules but despite this was banned by the Broadcast Advertising Clearance Centre (BACC) because ADI was deemed to be a ‘political’ group under the Communication Act 2003. ADI challenged the decision, which was subsequently upheld by the High Court in December 2006 and by the House of Lords in March 2008. ADI decided to bring its case to the European Court for a final decision, which was heard in the Grand Chamber on 7 March 2012.
At present, advertising laws effectively ban the broadcast of any advertisement on a matter of controversy. So whilst primates and other animals can be used to sell products or services, it is not permitted to create awareness about the impacts of these actions on those animals. The injustice of the situation was highlighted at the time by the fact that soft drinks giant Pepsi were using a performing chimpanzee in a TV commercial.
Concerns about the fairness of the ban have been expressed by many leading legal academics and no other European or Commonwealth country has such tight controls on the broadcast of what is deemed “political” advertising. A similar ban in Switzerland was overturned by the European Court of Human Rights and replaced by a lesser restriction on the broadcast of party political and electoral advertising.
Tamsin Allen, a media partner at Bindmans LLP who represented ADI: “Political speech is rightly protected by the European Court of Human Rights as a fundamental ingredient of free expression in a healthy democracy. It was argued in this case that the wide blanket ban on all political advertising in the UK was an inappropriate and unnecessary restriction on free speech. A minority of 8 Grand Chamber Judges in the European Court agreed, saying in a powerful dissenting judgment “Entirely and permanently closing off the most important medium of communication to any and all advertised messages about the conduct of public affairs is a harsher constriction of freedom than is necessary in a democratic society. Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it..”. However, a majority of Grand Chamber Judges took the view that the ban was necessary to” protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media.” Many small advocacy groups will be extremely disappointed by this decision