Animal Defenders International

 

Animal Defenders International

ADI test case on Government ban of TV advertising

Posted: 21 July 2006

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Animal Defenders International (ADI) represented by Bindman & Partners will challenge the Government over the ban on political advertising in broadcast media at the High Court from 24 – 26 July, 2006.

The ban prevents thousands of campaigning organisations from advertising on radio and TV including Amnesty and Make Poverty History whose TV ads were also banned. Such organisations can advertise freely in most other European and Commonwealth countries. The court will consider evidence from Amnesty and the RSPCA about their experiences of the ban and from academic experts about the impact of TV and radio advertising.

Tamsin Allen of Bindman & Partners said: “The European Convention on Human Rights guarantees the right of freedom of expression. The current ban on political advertising means that campaigning organisations with no political affiliation may not use TV or radio for fundraising or to campaign on issues. This is unfair – BP is allowed to advertise their green credentials on TV but environmental organisations cannot criticise the oil industry for its role in climate change in the same media. We are hopeful that the challenge will succeed and open the way for thousands of organisations to advertise on TV and radio and take advantage of interactive TV.”

Jan Creamer, chief executive of ADI, commented: “The case is about the exercise of free speech, which there is no justification in prohibiting. Our advertisement could not be broadcast because our aims are, according to the Communications Act of 2003, deemed to be ‘political’. The protectionist approach towards the public and public opinion, together with the imbalance in engaging the voice of broadcast advertising, cannot be upheld as necessary in a democratic society.”

Permission for the judicial review was conceded by the Department of Media Culture and Sport (DMCS) last autumn and the hearing will take place in the High Court, Royal Courts of Justice, Strand, WC1 from 24-26 July 2006.

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NOTES TO EDITORS

Potential Impact of Court Case

  • If the challenge is successful, analysts indicate a massive boost in advertising expenditure would sweep the UK, as thousands of companies, lobbyists and organisations broadcast pent-up views via increasingly interactive broadcast services[1].
  • The ADI case is seen in Europe as a test case for how issue advertising will be treated under the Human Rights Convention. If non-profit groups win the right to advertise in Europe, this is expected to open up a major new source of revenue for advertisers.[2]

Government advertising spend up

  • Figures from the Central Office of information confirm that spending on advertising has more than trebled since Labour came to power in 1997, and has peaked before the two general elections. The government advertising spend for 2004/5 is £165.4 million. Yet including production fees and related advertising work the total figure comes to £203 million, within the same 12 month period.[3]

Court Case

  • ADI issued a claim for judicial review against the Department of Media Culture and Sport (DMCS), which is responsible for the Communications Act 2003 after its ‘My Mate’s a Primate’ campaign TV ad was banned by the BACC. The DMCS conceded permission for ADI to go to a full hearing.
  • ADI is asking the Court to declare that the ban on political advertising in the Act is incompatible with the right to freedom of expression under Article 10 of the European Convention on Human Rights.
  • It will rely on case law from the European Court of Human Rights, which has declared a very similar ban in Switzerland to be incompatible with Article 10.
  • If successful, the Court will make a finding that the ban violates the right to freedom of expression and that the relevant provisions of the Communications Act 2003 are incompatible with the rights guaranteed by the Convention and that the will of Parliament should be overridden.
  • The next stage would be that the Government will 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 of Article 10.
  • Ultimately the result is expected to be an amendment to the legislation so that those currently defined as political organisations (although possibly not political parties) would be entitled to use broadcast media to advertise.

For more information about Bindman & Partners contact Tamsin Allen, Partner in the Media and Public Law department at Bindman & Partners on t.allen@bindmans.com

Bindman & Partners was founded in 1974 by a small group of Solicitors specialising in civil liberties and the rights of the individual. These concerns have remained at the heart of the firm as it has grown to its present size of 13 Partners and 65 other staff and is widely regarded as one of the country’s leading human rights practices.

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