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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One Response to “ECHR: blanket ban on political tv advertising violates freedom of expression”

  1. cearta.ie » Normal service is being resumed: religious and political advertising bans on December 20th, 2008 4:35 am

    […] reaffirmed VgT, and this time, the reasoning is much better (see adrian monck | Benedict Pringle | content and carrier | MediaPal@LSE | Trans-Atlantic Post | OfcomWatch). The Irish and UK governments intervened in the […]

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