When is an advert “political” for the purposes of a ban under the Communications Act?

R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre (Respondent) & Secretary of State for Culture, Media and Sport (Interested Party) [2013] EWCA Civ 1495 – read judgment

The ban on Christian Radio’s proposed advert seeking data on the “marginalisation of Christians” in the workplace was lawful and did not constitute an interference with free speech, the Court of Appeal has ruled. When determining whether a radio or television advertisement was “political” fur the purposes of Section 321(2)(b) of the Communications Act 2003 the court should consider the text objectively; the motives of the advertiser were irrelevant.

This was an appeal against a ruling by Silber J ([2013] EWHC 1043 (Admin)) that a proposed radio advertisement was directed towards a political end, and therefore fell foul of the prohibition on political advertising which meant that it could not be given clearance for broadcast (see my previous post on this decision).

Background facts

Christian Radio runs a national radio station called “Premier Christian Radio”. Christian Communications Partnership Limited (“CCP”) is a publisher of Christian magazines. CCP wished to air an advertisement that stated that over 60% of Christians considered that they were being marginalised in the workplace. The advertisement asked Christian listeners to report their experience to CCP so that it could collate the data and use it “to inform the public debate” and to “help make a fairer society”. The respondent regulator concluded that the advert would be contrary to the prohibition on political broadcasting because CCP intended to use the information thus generated to change government policy. It therefore refused clearance for broadcast. At first instance, Silber J did not accept that the prohibition on political advertising had infringed CCP’s Article 10 rights.

The appellants challenged this decision on the grounds that the advertisement was not “directed towards a political end” within the meaning of section 319(2)(b) of the Communications Act 2003 (“the 2003 Act”); and that the prohibition was an unlawful interference with their rights under Article 10  of the European Convention on Human Rights. They sought a declaration that the broadcast would not contravene sections 319 and 321 of the 2003 Act and a declaration under section 4 of the Human Rights Act 1998. They also contended that Section 321(2)(b) should be interpreted restrictively because it involved an interference with the fundamental right to freedom of speech. In addition, they argued that the judge had adopted the wrong approach by limiting himself to reviewing only the lawfulness of the regulator’s decision.

CCP in particular argued that the proposed advertisement was not directed towards an end that could properly be described as “political” at all.  The message of the advertisement was not one of seeking to change or influence Government policy. Rather, the message confirmed the importance of existing law and Government policy which seeks to outlaw discrimination in the workplace on grounds of religion or belief. The weakness of the judge’s approach, they argued, was highlighted by the failure of any attempt to identify the law which was sought to be changed

The Court of Appeal dismissed the appeal. Elias LJ dissented.

Reasoning behind the judgment

Silber J had been right to hold that the question whether an advertisement is directed towards a political end should be determined objectively by an examination of the text of the advertisement alone. The motives of the advertiser were irrelevant. So too was his intention unless it is expressed or is implicit in the language of the advertisement itself. The question of whether an advert was directed towards a political end should be determined objectively by an examination of the text of the advertisement alone.  If regard were to be had to the motives and intentions of the advertiser then even objectively political adverts could not be prohibited if the advertiser cold show that he did not intend his advert to be directed to a political end. This would frustrate the clear object of the statute. Further, if the regulator were required to investigate the motives and intentions of the advertiser, the issue would become a complex and time-wasting enquiry. That was unlikely to have been parliament’s intention.

It was significant to Lord Dyson MR, giving judgment, that the advertisement stated that CCP wanted the more accurate data in order to “inform the public debate”:

In other words, it is not seeking the data for the purposes of research or informing the public about a matter of general interest. It wants the data to inform a debate in the public arena. The most obvious purpose of a public debate would be to address a matter of public importance.

Therefore the advertisement was on its face “supportive of a campaign which was of a political nature”.

A fundamental feature of broadcasting regulation in the UK was that impartiality in broadcast services should be maintained.  That was achieved by the imposition of special requirements of impartiality by Section 320 of the Communications Act, the provision of free party political election broadcasts and the specific prohibition on political advertising in Section 319 (2) (g) of the Act as well as Section 321(2)(b) .  The narrow construction of “political” for which CCP contended was inconsistent with the decision in Animal Defenders v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312, and Animal Defenders International v United Kingdom (my post on the latter judgment is here). One of the arguments the Animal Defenders’ group advanced was that the prohibition was too widely drawn and disproportionate because it caught advertisements which were not “political” in the narrow sense, but were more properly described as “social advocacy”. The House of Lords accepted the premise of the argument (ie that the prohibition caught advertisements which were “social advocacy”); but they held that the legislation was a proportionate interference with the applicant’s article 10 rights. By a majority, the Grand Chamber agreed.  Both the House of Lords (per Lord Bingham at para 31) and the majority of the Grand Chamber (para 122) upheld the Government’s argument that there was no clear and workable distinction between political parties and social advocacy bodies and that a less restrictive alternative to the provisions was not feasible and would compromise the principle of broadcasting impartiality.

The whole point of ss. 319 – 328 of the Communications Act was to provide fair standards for television and radio. That necessarily involved interfering with freedom of speech in the public interest. There was a real public interest in ensuring that political debate on radio and television was conducted impartially and on a level playing field. That was the policy reason for the prohibition on political advertising. An artificially narrow in interpretation of Section 321(2)(b)  would frustrate that policy. CCP’s advert was directed to the political end of making a fairer society by reducing or eliminating the marginalisation of Christians in the workplace. It was implicit in the advert that CCP was confident that the data generated would support the case that Christians were being marginalised, and the underlying message of the advert was that there was an existing unfairness in society which CCP was saying should be changed. It was therefore, on its face, implicit in the campaign which was political in nature.

As to whether the judge should have not limited himself to a review of the rationality of the decision, it was not necessary to express a concluded view  because of the above conclusion about the political nature of CCP’s advert. However, it was likely that whether the advert was directed towards a political end was one for the court to decide. The issue was not one of evaluation or judgment. Either the advert was directed to a political end or it was not. That would mean that the court’s role was not limited to a review of the lawfulness of the decision.

Elias LJ’s dissent

The fact that Elias LJ felt free to dissent in this case indicates a significant chink in the armour of the 2003 Act.  He was of the view that the regulator had erred, in focussing solely on the future use of the information gathered by the advert. It had not found that the advert as it stood, and independent of the future use of the data, was seeing to achieve a political end. However, the words “directed towards a political end” in Section 321 did not include looking at future events. Elias LJ parted company with Silber J, the regulator and the majority in this hearing  on the issue whether the 2003 Act, properly construed, does allow the regulator to focus on the future actions of the advertiser. The critical question was what the phrase “directed towards a political end” means. The regulator had “simply assumed” that it includes any advertisement whose purpose is to facilitate an attempt in the future to achieve a political end, such as by influencing debate or government policy. Elias LJ did not think that the words, read in context, fairly bore that meaning.  Instead the question should be whether the advertisement itself, without reference to future action, itself seek to achieve a political end. In his judgment there were “strong pointers” that this was the proper and appropriate meaning of the phrase in the context of this particular legislation:

on any view the principal purpose of the section is to prohibit advertisements whose immediate aim is to achieve a political end i.e. one of the objectives in section 321(3) (and perhaps others, since these are not exhaustive of what may constitute political ends) ….The phrase cannot simply involve focusing on the future; it must include advertisements whose immediate aim is to send a partial political message.

There is, in my view, no obvious public interest in preventing someone through advertising gaining information which may be used in future to advance a political cause, provided of course that future influence is wielded in ways which do not contravene the legal prohibitions on political speech. The concern of the 2003 Act is not with partial advertising in all circumstances but merely partial advertising by broadcasters. [50 - 51]

The justification for a narrower construction was “reinforced” by the consideration that the effect of the ban was to interfere with freedom of speech. Any restriction ought not to be read more broadly than is necessary to protect a legitimate interest, in this case preventing partial political communications from being broadcast. It was only the curbing of that particular mischief which justified the interference and prevented the provisions from constituting a breach of the right to freedom of expression under Article 10, or indeed of the common law principle of legality referred to by The Master of the Rolls.

“Future intentions are simply irrelevant.” Accordingly, Elias LJ would have upheld this appeal and declared the advertisement lawful.

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