ECHR: blanket ban on political tv advertising violates freedom of expression

Posted on December 12, 2008 | Filed Under fundamental rights

In a decision handed down yesterday, the European Court of Human Rights came to the conclusion that a blanket ban on paid political tv advertising violates Art 10 of the European Convention on Human Rights. The case, TV Vest As & Rogaland Pensjonistparti v. Norway, involved a small political party that had gained only 2.3 % of the votes in the last election. It found that the only way to get its message across to the electorate would be to pay for tv advertising, and so it placed spots on a regional tv program. The broadcaster was fined by the Media Authority (around 3.800 €) and the fine was upheld by the Supreme Court (with one dissenting opinion which is extensively quoted in the ECHR judgment).

The ECHR took note of a background paper on political advertising, prepared by EPRA (European Platform of Regulators) for an EPRA meeting in 2006. According to this paper, 13 European countries had a statutory ban on paid political advertising in broadcasting, in 10 such advertising was permitted, and in 11 there existed provisions for free airtime for political parties and candidates during election campaigns (five of these were among the 13 where paid political advertising was prohibited). The ECHR accepts that this absence of European consensus “speaks in favour of allowing a somewhat wider margin of appreciation than that normally accorded with respect to restrictions on political speech in relation to Article 10 of the Convention.” But then the Court said:

70.   In this regard, the Court notes that the rationale for the statutory prohibition of broadcasting of political advertising through television was, as stated by the Supreme Court, the assumption that allowing the use of such a form and medium of expression was likely to reduce the quality of political debate generally. In this way complex issues might easily be distorted and groups that were financially powerful would get greater opportunities for marketing their opinions than those that were not. … The Government pointed out that the ban had been limited to political advertising on television due to the powerful and pervasive impact of this type of medium. Moreover, the prohibition had contributed to limiting election campaigns costs, to reducing participants’ donor dependence and ensuring a level playing field in elections. It was aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to avoid that those who were well endowed obtained an undesirable advantage through the possibility of using the most potent and pervasive medium. Also, it helped to preserve the political impartiality of television broadcasting. These are undoubtedly relevant reasons (see VgT § 73).
71.  However, the Court is not convinced that these objectives were sufficient to justify the interference complained of.
72.  In the first place, there is nothing to suggest that the Pensioners Party fell within the category of parties or groups that were the primary targets of the disputed prohibition, namely those which because of their relative financial strength might have obtained an unfair advantage over those less endowed by being able to spend most on broadcast advertising (see VgT, § 75).
73.  On the contrary, while the Pensioners Party belonged to a category which the ban in principle was intended to protect, the Court … is not persuaded that the ban had the desired effect. In contrast to the major political parties, which were given a large amount of attention in the edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to get its message across to the public through that type of medium. By being denied this possibility under the law, the Pensioners Party’s position was at a disadvantage, compared to that of major parties which had obtained edited broadcasting coverage that could not be offset by the possibility available to it to use other but less potent media.
74.  The Court further notes that it has not been contended that the specific advertising at issue contained elements that were capable of lowering the quality of political debate (see VgT, § 76).
75.  Moreover, as mentioned above, it does not appear that the advertising could give rise to sensitivities as to divisiveness or offensiveness making a relaxation of the prohibition difficult. In this regard, as already stated, the case under consideration is distinguishable from that of Murphy, where it was such sensitivities that led the Court to accept that the filtering by a public authority, on a case by case basis, of unacceptable or excessive religious advertisings would be difficult to apply fairly, objectively and coherently and that a blanket ban would generate less discomfort (§§ 76-77). …
77.  The view expounded by the respondent Government, supported by the third party intervening Governments, that there was no viable alternative to a blanket ban must therefore be rejected.
78.   In sum, there was not, in the Court’s view, a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition on political advertising and the means deployed to achieve that aim. The restriction which the prohibition and the imposition of the fine entailed on the applicants’ exercise of their freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 for the protection the rights of others, notwithstanding the margin of appreciation available to the national authorities. Accordingly, there has been a violation of Article 10 of the Convention.”

Update (14 December 2008): Daithí Mac Síthigh at LexFerenda has an excellent post on this judgment, pointing also to the recent decisions by Ofcom (here and here) and the House of Lords (here), as well as highlighting the Irish background and linking to further blogs  dealing with the judgment (OfcomWatch, MediaPal@LSE, Adrian Monck).

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“What should this mean? … Or is it some abuse?”*: ECJ on Kanal 5

Posted on December 11, 2008 | Filed Under digital content, copyright

Sometimes, ECJ decisions can remind you of the old lawyer jokes (see for instance, here), where someone is identified as a lawyer because he gives an answer that is “100% accurate, yet completely useless.” Today’s answer given by the European Court of Justice to a request for a preliminary ruling by the Swedish Market Court in the Case C-52/07 Kanal 5 and TV 4 may well fall into that category. 

The commercial broadcasters Kanal 5 and TV 4 had complained to the Swedish competition authority about a suspected abuse of a dominant market position by STIM, “an association which enjoys a de facto monopoly in Sweden over the market for making available copyright-protected music for television broadcast”. Kanal 5 and TV 4 pay remuneration to STIM corresponding to a percentage of their revenue deriving from television broadcasts directed at the general public and/or subscription sales; the percentages vary according to the amount of music broadcast. The public service channel SVT, however, pays STIM a lump sum, the amount of which is agreed in advance. When the competition authority dismissed the somplaint, Kanal 5 and TV 4 brought action before the Market Court which then requested a preliminary ruling regarding the interpretation of Article 82 EC.

The court held that the remuneration model, which is not based only on the revenue of the broadcasting companies, but takes account of the number of the copyrighted works actually broadcast, does not in itself constitute an abuse within the meaning of Article 82 EC and must, in principle, be regarded as a normal exploitation of copyright. However, it is conceivable that, in certain circumstances, the application of such a remuneration model may amount to an abuse, in particular when another method exists which enables the use of those works and the audience to be identified and quantified more precisely and that method is capable of achieving the same legitimate aim.

The interesting question, whether the application of a different remuneration model to a public service broadcaster could be an abuse, is also answered in a very general way:

First, the referring court will have to take account of the fact that, unlike Kanal 5 and TV 4, SVT does not have either advertising revenue or revenue relating to subscription contracts and of the fact that the royalties paid by SVT are collected without taking account of the quantity of musical works protected by copyright actually broadcast. Furthermore, the national court must also ascertain whether Kanal 5 and TV 4, or either of those two companies, is a competitor of SVT on the same market. And finally, the referring court must consider whether such a practice may be objectively justified. Such justification may arise, in particular, from the task and method of financing of public service undertakings.

So it’s back to the Market Court for an interesting assessment of whether commercial and public-service broadcasters (without advertising funding) are acting on the same market.

*) Shakespeare, Hamlet, Prince of Denmark, Act IV Scene 7

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Justice Breyer: “… the European Commission. They have done all kinds of things.”

Posted on December 9, 2008 | Filed Under communication technologies

Price squeeze, refusal to deal and/or predatory pricing in the DSL wholesale business - these are issues that not only European telecommunications regulators, competition authorities and courts have to deal with. In the US, the Supreme Court heard oral arguments yesterday in the case Pacific Bell v. Linkline (transcript here). The basic issue at stake in that case is whether a price squeeze claim based on antitrust regulation (specifically section 2 of the Sherman Act) can be brought in a matter that is (also) subject to industry specific regulation.

Pacific Bell, a vertically integrated company providing wholesale and retail DSL services, argued that under Trinko there was no antitrust duty to deal at all at the wholesale level, and thus no antitrust-based price squeeze claim could be brought against it. This view had not been shared by the Court of Appeals for the 9th Circuit. 

Surprisingly, in the oral arguments before the US Supreme Court, the respondent, Linkline, did not defend the decision of the 9th Circuit, but rather argued it should be vacated as it was incomplete. Much of the oral argument therefore was dedicated to the question of whether the Court would have to address the substance matter, and in doing so would need to reverse one of the most famous antitrust decisions: Alcoa. Or could the Court just vacate the decision of the 9th Circuit,

“leaving it up to the district court to proceed as it believes appropriate under the law with the Brooke Group claim [predatory pricing, not price squeeze]?
MR. BLECHER: I think -
JUSTICE BREYER: Is that a possible thing to say?
MR. BLECHER: And -
JUSTICE BREYER: Yes or no, please.
MR. BLECHER: It avoids the need to -
JUSTICE BREYER: Is it, yes, we could do that, or no -
MR. BLECHER: Yes.
JUSTICE BREYER: Yes we can?
MR. BLECHER: Yes, you can. That’s what we’re suggesting.”
[emphasis added]

Of course the issues at stake bear some resemblance to European cases, both under competition law and industry-specific regulatory intervention, most notably the cases Deutsche Telekom (price squeeze; see here) and Wanadoo/France Télécom (predatory pricing; see here)-cases, both already decided by the Court of First Instance and now pending at the European Court of Justice. Mr. Brunell, acting before the US Supreme Court on behalf of the American Antitrust Institute (amicus curiae for Linkline), even brought the European perspective - where it is accepted that the mere existence of regulatory authorities does not preempt the application of competition law - into view. Brunell quoted John Vickers of Oxford, and was asked by Justice Souters whether Vickers supports recognition of an antitrust price squeeze claim “in the circumstances in which there was regulatory involvement like the FCC”. In his reply, Brunell said: “I believe the European Commission also recognizes such a claim in the presence of regulation.” Justice Breyer then went on about Vickers, and stated he would be

“surprised that Vickers has written that under the circumstances I have outlined that there is a valid price squeeze antitrust claim or that the British Commission has held that. I would be very interested to know the citation of that. Because he may have done. I don’t read everything.
MR. BRUNELL: The European commission –
JUSTICE BREYER: I’m not saying the European Commission. They have done all kinds of things. I am saying the — the –
(Laughter.)
JUSTICE BREYER: I am saying the British Monopolies or Restricted Practices Commission of which Vickers was the head. I agree with you that he is very knowledgeable, but I would be surprised if he had written contrary to what I just said in that example.”

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