COUR EUROPENNE DES DROITS DE LHOMME

THE EUROPEAN COURT OF HUMAN RIGHTS

Application No: 48876/08

BETWEEN

ANIMAL DEFENDERS INTERNATIONAL

Applicant
- and -

THE UNITED KINGDOM

Respondent

__________________________________________

APPLICANT'S MEMORIAL
__________________________________________

A. INTRODUCTION
1. This is the Memorial of the Applicant on the Admissibility and Merits of the Case.
It is submitted pursuant to the letter to the Applicant dated 13 December 2011
from the Deputy Registrar to the Grand Chamber which requests parties to
address the following issue:
Was the interference (based on sections 319 and 321 of the
Communications Act 2003) with the applicant associations right to
freedom of expression under Article 10 of the Convention,
necessary in a democratic society within the meaning of Article
10(2) of the Convention as interpreted in the light of the courts
previous case law (namely Verein Gegen Tierfabriken Schweiz v
Switzerland 28 June 2001, No. 24699/94 (VgT); Murphy v. Ireland
10 July 2003, No. 44179/99 (Murphy); and TV Vest AS and
Rogaland Pensjonistparti v Norway. 11 December 2008. No.
21132/05) (TV Vest).

2. The Applicant submits that this question should be answered in the negative.
The UK legislation in question imposes a blanket ban on the broadcast of
advertisements placed by a body whose objects are political or which is directed
towards a political end. The term political is given the widest sense covering
almost all debates of general interest. This prohibition is contrary to the proper
requirements for the free expression of political speech and diversity of viewpoints
which characterise a democratic society. The Government has not established
relevant and sufficient reasons for the interference. The prohibition is not
necessary in a democratic society.

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3. This document is arranged as follows:
A. Introduction
B. Summary.
C. The Facts
D Domestic Law and Practice
E. Comparative Law
i. 2006 Survey by Secretariat of the EPRA
ii. Council of Europe
iii. European Convention on Trans-frontier television
iv. EU law
F. Admissibility
G. The Law
i. Alleged Violation of Article 10
ii. General Principles
iii. Courts Case Law on Political Advertising
iv. Applications of principles in this case
v. Just Satisfaction
H. Response to Governments Observations
I. Conclusion

B. SUMMARY
4. In the UK, the only political advertising which is permitted on radio and television
is a free - but limited - system of advertisements more commonly described by the
term Party Election Broadcasts (PEBs) or Party Political Broadcasts (PPBs).
This free advertising is allocated to political parties or candidates during election
or referendum campaigns and at other times. No lobby groups, NGOs or
campaigning groups are afforded any such right of access to advertising on
television and radio. Save for PEBs and PPBs all paid political advertising on
television and radio is banned.

5. The ban on paid political advertising applies to all organizations promoting issues
that are considered to be of a political nature. In their case, the relevant UK
legislation s.321(3) of the Communications Act 2003 (the 2003 Act) defines
the term political in an extremely broad sense. The ban on political advertising
covers, among other things, advertising which seeks to bring about changes of
the law or otherwise influencing the legislative process in any country or territory
or seeks to influence public opinion on a matter which, in the United Kingdom, is
a matter of public controversy. The legislation essentially prevents all forms of
advertising on radio and television by NGOs and representative interest bodies in
civil society and, as a result, seriously restricts the freedom of expression of such
bodies and their ability to campaign on matters of general interest.

6. This application has therefore been brought against the UK by the Applicant, a

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 non-profit and non-charitable organisation, whose objects are the protection from,
and alleviation of, suffering by animals. In 2005, the Applicant conducted a
campaign called My Mates a Primate, aimed at highlighting the exploitation of
primates and calling for their protection. The Applicant sought to support that
campaign by newspaper and television advertising and direct mail. However, the
Applicants proposed television advertisement (the Advertisement) was not
permitted to be broadcast in the UK on the basis that it would breach the
restrictions set down in section 321 of the 2003 Act which imposes a very wide
and rigid ban on advertising which is deemed to be political in the broadcast
media (i.e. television and radio). This was a violation of its Article 10 rights.

C. THE FACTS
7. The Applicant adopts the Facts set out in Section A of the Statement of Facts
(Appendix Tab 1, pp.1-7).

8. When the Applicant challenged the statutory prohibition on political advertising on

radio and television in the domestic courts it was supported in bringing this
application by two other non-governmental organisations: Amnesty International
UK (Amnesty) and the Royal Society for the Prevention of Cruelty to Animals
(RSPCA).
(1) Amnesty International UK is an independent organisation concerned
with the impartial protection of human rights. It is not a charity but has an
associated charitable trust. It advertises successfully in newspapers,
billboards, underground stations and the cinema but is prevented by the
prohibition on political advertising from advertising on TV or radio, for
example in its attempts to highlight genocide in Rwanda
(2) The RSPCA is a charity with objects of preventing and suppressing
cruelty to animals. It sometimes advertises, including on TV, both as part of
its fundraising appeals and to raise public awareness about animal cruelty
and neglect. However, in September 2001 the RSPCA was refused
permission to run a TV advertisement drawing attention to cruelty to broiler
chickens in the fast-food industry. The advertisement was rejected as
involving expression of opinion on a matter of public controversy, which
is also prohibited by the prohibition on political advertising. The RSPCA
has used the advertisement on its website and in cinemas instead.

D. DOMESTIC LAW AND PRACTICE

9. The Applicant adopts the statement of the Relevant domestic law and practice

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 set out in Section B of the Statement of Facts (Appendix 1, Tab 1, pp.7-15). The
relevant statutory provisions, ss.319-321 and 333 of the 2003 Act are at Appendix,
Tab 2.

10. There is no prohibition in the UK on political advertising in the non-broadcast

media such as newspapers, billboards, cinema and the internet, although such
advertisements are subject to certain content standards. The Applicant was able
to place its My Mates a Primate advertisement in newspapers. Amnesty has
placed advertisements on billboards, in underground stations and the cinema.
The RSPCA ran its broiler chickens advertisements on the internet and in
cinemas. Advertisements by the Appellant or similar bodies would be subject to
the content standards.

E. COMPARATIVE LAW
i. 2006 Survey
Introduction
11. In 2006 a survey was carried out by the Secretariat of the European Platform of
Regulatory Authorities (23rd EPRA Meeting, Elsinore, Denmark, 17-19 May 2006,
Background paper - Plenary, Political advertising: case studies and monitoring)
(Appendix, Tab 3) on the basis of answers to a questionnaire, received from the
authorities of 31 countries. The following data can be drawn from that survey.

Blanket ban on any paid political broadcast advertising

12. A number of countries, including the United Kingdom, have imposed an outright
ban on political advertising. For these countries, the ban generally applies to
political parties, civic society groups and lobby organizations seeking to promote
causes with a political dimension. The EPRA survey noted that France, Malta and
Ireland were among this group.

Regulation of paid political broadcast advertising

13. A second category of countries are those which allow paid political advertising in a
restricted and regulated environment. The type of limitations vary but include
restrictions on scheduling (eg: no political advertisements during news or current
affairs or childrens programs - Macedonia); regulations on the duration and
frequency of such advertisements (Macedonia, Bosnia and Herzegovina);
restrictions on the costs that broadcasters can charge parties and candidates;
(Bosnia and Herzegovina); obligations to treat all purchasers of political
advertising equally (Hungary); banning paid political advertising on publicly owned

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 stations but permitting them for commercial broadcasters (Macedonia);
labelling/identification requirements on any broadcast throughout its transmission
showing it to be "paid political advertising (Cyprus, Macedonia); restrictions on
the maximum allowable expenditure by political parties on their paid political
advertising (Greece, Latvia).

14. In a few countries political advertising is only permitted during the election period
(Bosnia-Herzegovina and Croatia). In Spain, the Electoral Code permits paid
electoral advertising on commercial radio stations but only during the election
period. In Canada political advertising is generally permitted but during an
election period, broadcast licensees are required to allocate time for
advertisements of a partisan political character on an equitable basis to all
accredited political parties and rival candidates represented in the election or
referendum.

No regulations of paid political broadcast advertising

15. In a third category there are jurisdictions which have a largely non-regulated
environment in relation to paid political advertising. This is the case in Austria,
Estonia, Finland and Poland. In Poland, the issue of restrictions to political
advertising is regulated by each broadcaster by means of internal advertising
codes.

16. The most liberal regime in this regard is that of the United States of America
where political advertising is equated with constitutionally protected political
speech. A government ban on political advertising would be considered a violation
of the First Amendment of the US Constitution which provides that Congress shall
make no law abridging the freedom of speech, or of the press: see Citizens
United v. Federal Election Commission 558 U.S. 08-205 (2010), 130 S.Ct. 876
(January 21, 2010)Appendix, Tab 4) holding that the First Amendment prohibits
government from placing limits on independent spending for political purposes by
corporations and unions.

Provision of free broadcast air time to political parties

17. Many of those countries which impose a blanket legislative ban on any paid
political advertising offset this with a regulated system of free, but limited, political
advertising specifically for, and only for, recognised political parties and principally
only during electoral contests and referendum campaigns. In the United Kingdom
the content of these Party Political Broadcasts remains subject to the regulation

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 and supervision of the relevant broadcasting authority applying standards such as
taste, decency and (in)offensiveness (see R(on the application of Pro-Life Alliance
v. BBC [2004] AC 185). Among the other Council of Europe territories which
allocate free airtime for political parties and/or candidates are Belgium (French
Speaking Community), Czech Republic, Estonia, France, Germany, Greece,
Ireland, Italy, Latvia, Luxembourg, Malta and Spain.

18. Countries such as Germany, Ireland, the Netherlands, and Spain, operate a
system of proportional access to political parties in their distribution of free air
time, applying criteria such as the latest election results of the political parties in
allocating free broadcasting opportunities. Others apply the principle of equal
broadcast time for all recognised political parties (Latvia, Lithuania), while yet
other countries apply the general principles of fairness principle of equality of
treatment such that political parties eligible for election cannot be excluded from
airtime in general debates without valid reason (for example Denmark, Italy,
Malta).

19. A relatively small number of Council of Europe territories among them Belgium
(Flemish speaking Community), Bulgaria, Norway, Sweden do not grant political
parties any free airtime to present their programmes.

Permitting paid political broadcast advertising for civil society campaign(er)s

20. A number of Council of Europe countries which formerly banned all and any paid
political advertising have since permitted NGOs or civil society groups to place
advertising with a certain political content. Thus Switzerland allows such groups
(but not political parties or candidates) to place political advertisements except
within a specified quarantine period in the run up to elections or in campaigns
before plebiscites. Denmark does not apply its ban on political advertising on
television to political movements in a broader sense such as environmental and
societal groups (except when such groups are nominated for political bodies or
assemblies) and again applies a total ban on all political advertising during
election campaigns. In Italy, the term "political" is used in a very narrow sense,
such as to allow interest groups other than political parties to broadcast "social"
messages at no more than 50% of the cost of commercial advertisements.

21. Canada permits generally political advertising, while imposing some restrictions
on allocation of time during election periods.

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ii. The Council of Europe
22. Recommendation No. R (99) 15 of the Council of Europe's Committee of Ministers
on measures concerning media coverage of election campaigns provided as
follows:
5. Paid political advertising
In member States where political parties and candidates are
permitted to buy advertising space for electoral purposes, regulatory
frameworks should ensure that:
- the possibility of buying advertising space should be available to
all contending parties, and on equal conditions and rates of
payment;
- the public is aware that the message is a paid political
advertisement.
Member States may consider introducing a provision in their
regulatory frameworks to limit the amount of political advertising
space which a given party or candidate can purchase.

23. The Explanatory Memorandum to that Recommendation included the following

comments in relation to the above:
Paid political advertising
Paid political advertising in the broadcast media has traditionally
been prohibited in many Council of Europe member States, whilst it
has been accepted in others. One of its major advantages is the
opportunity which it provides for all political forces to widely
disseminate their messages/programmes. On the other hand, it may
give an unfair advantage to those parties or candidates who can
purchase important amounts of airtime.
In view of the different positions on this matter, the
Recommendation does not take a stance on whether this practice
should be accepted or not, and simply limits itself to saying that if
paid advertising is allowed it should be subject to some minimum
rules: one, that equal treatment (in terms of access and rates) is
given to all parties requesting airtime, and two, that the public is
aware that the message has been paid for.
It may also be considered important to set limits on the amount of
paid advertising that can be purchased by a single party.
Nevertheless, the Recommendation does not specify whether it is
desirable to do so nor does it set any precise limits on the amount of
paid advertising, as it is considered that the decision on this matter
should be taken at the national level.

24. The Committee of Ministers, on 7 November 2007, adopted recommendation

Rec(2007)15 (Appendix, Tab 5), which entailed a revision of Recommendation No.
R (99) 15. In so far as the above provisions were concerned it may be noted that
the Draft Explanatory Memorandum ((2007) 155 add) included the following
addition:

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 78. In view of the different positions on this matter,
Recommendation CM/Rec (2007)... does not take a stance on
whether this practice should be accepted or not, and simply limits
itself to saying that if paid advertising is allowed it should be subject
to some minimum rules, in particular that equal treatment (in terms
of access and rates) is given to all parties requesting airtime.

iii. The European Convention on Trans-frontier Television

25. The European Convention on Trans-frontier Television (ECTT) (Appendix Tab 6)
was concluded under the auspices of the Council of Europe 1989, 1998). Its
purpose is to facilitate, among the Parties, the cross-border transmission and the
retransmission of television programme services. The ECTT accordingly contains
provisions protecting trans-frontier broadcasting and advertising. Paid political
advertising would, in principle, appear to be covered by the provision of the ECTT
since advertising is defined in Article 2(f) as:
any public announcement in return for payment or similar
consideration or for self-promotional purposes, which is intended to
promote the sale, purchase or rental of a product or service, to
advance a cause or idea, or to bring about some other effect
desired by the advertiser or the broadcaster itself.

26. In the Explanatory Report to the ECTT (as amended by the provisions of the
Protocol (ETS No. 171) which entered into force, on 1 March 2002) it is noted
that:
104. Non-profit announcements in the public interest, for example
those for road safety, civic duties or health campaigns and charity
appeals broadcast free of charge, are considered as advertising in
the sense that the general standards of Article 11 [requiring
advertising to be fair and honest and not misleading] should
constitute a yardstick for these various forms of publicity and
announcement. Moreover, it is recalled that the provisions of Article
7, paragraphs 1 and 2 [requiring respect the dignity of the human
being and the fundamental rights of others], are applicable to all the
abovementioned forms of publicity and announcement. (Appendix,
Tab 6).

iv. European Union Law

27. The cross-border provision of broadcasting services is, in principle, covered by the
Treaty principles of free movement of services within the territory of the EU (see
Joined Cases C-403/08 & C-429/08 Football Association Premier League Ltd &
Others v QC Leisure & Others 4 October [2011] ECR I-nyr; [2012] FSR 1)
(Appendix Tab 7).

28. Against this background, the EU legislator has adopted a number of initiatives in

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 the field of broadcasting, notably the codified 'Television Without Frontiers'
Directive 2010/13/EU ([2010] OJ L267/21)(the Directive)(Appendix Tab 9). This
requires Member States to
ensure freedom of reception and not restrict re-transmissions
on their territory of audio-visual media services from other
Member States for reasons which fall within the fields co-
ordinated by this Directive (Article 3(1)).
Article 4(1) of the Directive states that Member States shall remain free to require
media service providers under their jurisdiction to comply with more detailed or
stricter rules in the fields coordinated by this Directive provided that such rules are
in compliance with Union law.

29. Any national limitations of a right granted, protected or regulated by EU law,

trigger the application of EU fundamental rights (Case C-245/01 RTL Television,
[2003] ECR I-12489 and C-411/10 N.S v Secretary of State for the Home
Department 21 December [2011] ECR I-nyr, Appendix Tabs 10 and 11). Although
pure political advertising might not fall within the scope of advertising as
defined the Directive (since it would not generally be intended to promote the
supply of goods or services . in return for payment) nevertheless, when
regulating broadcasters and broadcasting within their own territory and when
regulating the reception of audio-visual media services from other Member States,
Member States must respect the fundamental freedoms guaranteed by the EU
Treaties and by the EU Charter of Fundamental Rights (the Charter)(Appendix
Tab 12). As a result, a common EU-wide approach is required in relation to the
issue of freedom of expression and broadcast advertising. The requirement for
respect for EU fundamental rights extends to pre-existing Member State
legislation that touches upon fields regulated by the EU measure (Case C-555/07,
Kckdeveci, [2010] ECR I-365, paras 23-26)(Appendix Tab 12).

30. In Elleniki Radiophonia Tielorasi v Dimotiki Etairia Pliroforissis ([1991] ECR 2925)
(Appendix Tab 15) the Court of Justice confirmed that among the general
principles of EU law applicable in this area is the protection of freedom of
expression set out in Article 10 of the Convention. Subsequently in Commission v
Netherlands, [1991] ECR I-4069 (Appendix Tab 16) the Court of Justice upheld
the legality of Dutch broadcasting regulations which were designed to ensure a
pluralistic broadcasting output, holding that such pluralism was precisely what
Article 10 was designed to promote. This approach is now also established in the
terms of Article 11 of the Charter.

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F. ADMISSIBILITY
31. Article 35(1) provides as follows:
The Court may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules
of international law, and within a period of six months from the date
on which the final decision was taken.

32. The Applicant has exhausted all domestic remedies. The provision which causes
the Government to violate the Applicants Article 10 rights is a provision of primary
legislation, enacted by Parliament. The Applicant has sought directly to challenge
it by way of a claim for a declaration of incompatibility under and in terms of
section 4 of the Human Rights Act 1998. It has taken its case to the highest
appeal court in the UK, and its claim has been rejected there. No other domestic
legal remedy lies open to the Applicant. The final decision of the House of Lords
was delivered on 12 March 2008. The Applicants application was submitted on
11 September 2008, within six months from 12 March 2008.

33. The application is not manifestly ill-founded and there is no other basis for
declaring the application inadmissible under Article 35.

34. For those reasons the application is admissible.

G. THE LAW
i. Alleged Violation of Article 10
35. The Applicant complains that the prohibition on political advertising in section 321
of the 2003 Act, by denying the Applicant any opportunity to advertise by
television or radio, and in particular to air the Advertisement, constitutes a violation
of Article 10 of the Convention, of which the relevant part reads as follows:
1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are
necessary in a democratic society, ... for the protection of the
reputation or rights of others, ... or for maintaining the authority and
impartiality of the judiciary.

36. The parties are agreed that section 321 of the 2003 amounts to an interference
with the Applicant's right to freedom of expression as guaranteed by Article 10(1).
They further agree that the measure is prescribed by law and pursue the

10
 legitimate aim of protecting the rights of others within the meaning of Article
10(2). The issue for the Court is whether the interference is necessary in a
democratic society.

ii. General Principles

Importance of Political Expression
37. Freedom of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress and for each
individual's self-fulfilment: see e.g. Lindon, Otchakovsky-Laurens and July v
France, (2008) 46 EHRR 35, 22 October 2007 [GC], 45.

38. Whilst Article 10 protects the right of freedom of expression in general it provides
a distinct and high level protection for political expression:
freedom of political debate is at the very core of the concept of a
democratic society which prevails throughout the Convention
(Lingens v Austria, 8 July 1986, 42, Series A no.236; Haider v
Austria (1995) 83-A DR 66, 3b; similarly Malisiewicz-Gasior v
Poland Application 6 April 2006, No. 43797/98, 64).
As a result
political expression including expression on matters of public
interest and concern, requires a high level of protection under Article
10 (Steel & Morris v UK 15 February 2005, No 68416/01, 88);

39. This strong Article 10 protection for political speech extends to social-advocacy. It
is recognised that even single-issue pressure groups play an important role in
influencing and mobilising public opinion in modern democracies. Article 10(1)
also stresses the rights of citizens to receive as well as to impart opinion:
The Court has long held that political expression, including
expression on matters of public interest and concern, requires a
high level of protection under Article 10 The Government have
pointed out that the applicants were not journalists, and should not
therefore attract the high level of protection afforded to the press
under Article 10. The Court considers, however, that in a democratic
society even small and informal campaign groups, such as London
Greenpeace, must be able to carry on their activities effectively and
that there exists a strong public interest in enabling such groups and
individuals outside the mainstream to contribute to the public debate
by disseminating information and ideas on matters of general public
interest such as health and the environment. (Steel & Morris, cited
above, 88-89; see also 95 and Malisiewicz-Gasior, cited above,
57).

40. Freedom of expression is applicable not only to information or ideas that are
favourably received or regarded as inoffensive or as a matter of indifference, but

11
 also to those that offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness without which there is no democratic society
(Handyside v United Kingdom 7 December 1976, 49, Series A no. 24, (1979
80) 1 EHRR 737; Monnat v Switzerland, 21 September 2006, No. 73604/01 at
55; VgT (No.2) at 96).

41. Prior restraints on publication for example by refusing to broadcast an

advertisement submitted to the appropriate authority - entail such dangers to
freedom of expression that they call for the most careful scrutiny by the Court
(See, eg Sunday Times v United Kingdom (No.2), 26 November 1991, Series A
217 at 51 and and VgT (No.2) at 93).

Justification under Article 10(2)

42. Where there is an identifiable interference by public authority with the right to
freedom of expression under Article 10(1), it will violate that ECHR right unless it
satisfies the requirements of Article 10(2), i.e. the interference must be prescribed
by law; have an aim or aims that are legitimate under Article 10(2) and be
necessary in a democratic society for the purpose of that aim or aims.

43. The general principles governing whether an interference is necessary in a

democratic society have recently been recently reiterated in two Grand Chamber
judgments, each describing them as fundamental and well established in the
Courts case-law: Stoll v Switzerland 10 December 2007, No. 69698/01 at 101
and Guja v Moldova, 12 February 2008, No. 14277/04 at 69:
(i) Freedom of expression constitutes one of the essential
foundations of a democratic society and one of the basic conditions
for its progress and for each individual's self-fulfilment. Subject to
paragraph 2 of Article 10, it is applicable not only to 'information' or
'ideas' that are favourably received or regarded as inoffensive or as
a matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no 'democratic society'. As
set forth in Article 10, this freedom is subject to exceptions, which ...
must, however, be construed strictly, and the need for any
restrictions must be established convincingly ...
(ii) The adjective 'necessary', within the meaning of Article 10 2,
implies the existence of a 'pressing social need'. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a 'restriction'
is reconcilable with freedom of expression as protected by Article
10.

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 (iii) The Court's task, in exercising its supervisory jurisdiction, is not
to take the place of the competent national authorities but rather to
review under Article 10 the decisions they delivered pursuant to their
power of appreciation. This does not mean that the supervision is
limited to ascertaining whether the respondent State exercised its
discretion reasonably, carefully and in good faith; what the Court has
to do is to look at the interference complained of in the light of the
case as a whole and determine whether it was 'proportionate to the
legitimate aim pursued' and whether the reasons adduced by the
national authorities to justify it are 'relevant and sufficient'.... In doing
so, the Court has to satisfy itself that the national authorities applied
standards which were in conformity with the principles embodied in
Article 10 and, moreover, that they relied on an acceptable
assessment of the relevant facts ....

44. The Court is the ultimate arbiter of whether an interference is reconcilable with
Article 10, and will carefully and strictly scrutinise a states claim that an
interference with Article 10 is necessary in a democratic society: (Stoll v
Switzerland). The Court will ask itself whether the interference is proportionate to
the legitimate aim pursued; whether the Governments reasons are relevant and
sufficient; whether the Governments decision that a pressing social need exists is
based upon an acceptable assessment of the facts. The Court will test the
justification of a restrictive measure against the practical and factual realities:
(Guja v Moldova 74):
In a democratic system the acts or omissions of government must
be subject to the close scrutiny not only of the legislative and
judicial authorities but also of the media and public opinion. The
interest which the public may have in particular information can
sometimes be so strong as to override even a legally imposed duty
of confidence (see Fressoz and Roire v France [GC], no 29183/95,
ECHR 1999-I; and Radio Twist, AS v Slovakia, 19 December 2006,
No 62202/00).

45. There is little scope under Article 10(2) for restrictions on political speech or on
debate on questions of public interest (see TV Vest 59 and the cases there
cited). Where restrictions on political expression are in issue there must be strict
scrutiny on the part of the Court and a correspondingly circumscribed national
margin of appreciation (TV Vest 64). Political speech may be contrasted in this
regard with the approach taken in relation to speech in relation to religion where
the margin of appreciation accorded to States is broader (Murphy 67).

iii. Courts Case Law on Political Advertising

Introduction
46. The issue of prohibitions on political advertising has been addressed in three

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 cases in the Court since 2000.

VgT (No.1)
47. The first VgT case was decided by the Second Section on 28 June 2001. It
concerned a refusal by a Swiss television company to broadcast a television
commercial with the theme eat less meat, for the sake of your health, the animals
and the environment. The television company relied on legislation which
prohibited political advertising.

48. In relation to margin of appreciation, the Court held that

the applicant associations film fell outside the regular commercial
context, inciting the public to purchase a particular product. Rather
it reflected controversial opinions pertaining to modern society in
general As a result, in the present case, the extent of the margin
of appreciation is reduced, since what is at stake is not a given
individuals purely commercial interests, but his participation in a
debate affecting the general interest (70-71).

49. According to the Swiss authorities the prohibition was justified

in order to protect public opinion from the pressures of powerful
financial groups and from undue commercial influence; to provide for
a certain equality of opportunity among the different forces of
society; to ensure the independence of broadcasters in editorial
matters from powerful sponsors, and to support the press (72)

50. The Court accepted that there was a risk that powerful groups could obtain
competitive advantages in the area of advertising and that that this would
undermine the fundamental role of freedom of expression (73) but pointed out
that (as in this case) the prohibition applied only to broadcasts (74). It expressed
the opinion that
a prohibition of political advertising which applies only to certain
media, and not to others, does not appear to be of a particularly
pressing nature (74)
It was pointed out that (as in this case), the applicant was not itself a powerful
financial group which was abusing a competitive advantage (75).

51. Although prohibition of political advertising could be compatible with Article 10 in

some situations the reasons must be relevant and sufficient in respect of the
particular interference with the rights under Article 10 in certain situations
(emphasis added)(75).

52. The Court also relied on the following matters

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 The absence of suggestion that any part of the advertisement was
disturbing (76).
The fact that broadcast on Swiss television was the only way in which the
applicant could reach the entire Swiss public (77).

53. In the circumstances, the measure was not necessary in a democratic society
and there was a violation of Article 10.

TV Vest
54. The TV Vest case was decided on 11 December 2008. It concerned the
broadcast by the applicant of an election advertisement for the Pensioners
Party. In other words, this was political advertisement in the strictest sense
designed to influence votes at an election. The applicant was fined for
broadcasting the advertisement in breach of a statutory prohibition on the
transmission of advertisements for political opinions through television (see 22).

55. The Court noted that the advertisements were outside the commercial context
where states enjoyed a wide margin of appreciation and did not include any
content that might be liable to offend intimate personal convictions within the
sphere of morals or religion (64). The political nature of the advertisement calls
for strict scrutiny on the part of the Court and a correspondingly circumscribed
national margin of appreciation (64).

56. The Court accepted that the differences between domestic systems with regard to
television broadcasting of political advertising warranted a somewhat wider
margin of appreciation than that normally accorded with respect to restrictions on
political speech (67).

57. The Court noted that the rationale for the statutory prohibition stated by the
domestic court was that the use of such a form and medium of expression was
likely to reduce the quality of political debate generally. As in this case
Pluralism and quality were central considerations, as was the fact
that it was the legislature which had addressed the relevant issues
for the democratic process, the legislature being better placed than
any other State organs to assess how best to achieve those
objectives (70).
The Government also relied on the fact that television had a powerful and
pervasive impact and the prohibition helped to preserve the impartiality of
television broadcasting. It was accepted that these were relevant reasons (70).

15
58. Nevertheless, the Court held that the reasons were not sufficient to justify the
interference, essentially for three reasons:
The Pensioners Party was not a party with considerable financial strength
which might have obtained an unfair advantage by television advertising.
In fact, it was at a disadvantage compared with other parties (72-73).
The advertising in issue was not capable of lowering the quality of political
debate (74).
The advertising did not give rise to issues as to divisiveness or
offensiveness (75).

59. As a result, although the impact of the audio-visual media was an important
consideration, it could not justify a blanket prohibition on political advertising and
there was a violation of Article 10 (76-77)

VgT (No.2)
60. This was a decision of the Grand Chamber on 30 June 2009. The applicant
association complained of the continuing prohibition on broadcasting the
television commercial which was the subject matter of the first VgT case despite
the decision of the Court in that case.

61. The Grand Chamber again noted that there was little scope under Article 10(2) for
restrictions on political speech or debate of questions of public interest (92). It
also noted that prior restraints on publication call for the most careful scrutiny
(93).

62. The Grand Chamber upheld the position taken by the Chamber in the first VgT
case. In particular, it rejected the Governments argument that the broadcasting of
the commercial might be seen as unpleasant by consumers or meat traders and
producers, noting that freedom of expression is applicable to ideas which offend,
shock and disturb (96).

iv. Application of Principles in this Case

Introduction
63. The prohibition on political advertising in sections 319 and 321 of the 2003 Act
cannot be shown to be justified as necessary in a democratic society because:
(1) A restriction on political expression which includes the advocacy of
law/policy change and social advocacy - is one which requires strict
scrutiny by the Court. Where political expression is in issue the margin of

16
 appreciation is a narrow one in such cases.
(2) There is a total prohibition on political advertising defined in an
extraordinarily broad sense. Political covers party and election matters,
but also law/policy change and social advocacy. The prohibition
imposes a blanket ban on all broadcast advertisements that are either
inserted on behalf of a body whose objects are wholly or mainly political
or are directed towards a political end.
(3) There is no pressing social need for a total prohibition on political
advertising imposing such a blanket ban, particularly where it covers
advertising placed by a body whose objects are law/policy change and
social advocacy or which is placed for those ends.
(4) This very issue was considered in the Vgt and TV Vest cases, where it
was held that a ban on political advertising is not necessary in a
democratic society. The Court should here follow these cases because:
(a) It represents the correct analysis and application of the legal
principles.
(b) It is in the interests of legal certainty and the development of the
Courts jurisprudence to do so.

Margin of Appreciation
64. As to the first point, the Advertisement concerned a matter of general interest it
was social advocacy in relation to the treatment of primates. The applicant was
seeking to influence public opinion in this area. As in the VgT case, the
Advertisement falls outside the commercial context of product marketing an area
where states have traditionally enjoyed a wider margin of appreciation (see TV
Vest, 64). In contrast to the Murphy case, there is nothing in the Advertisement
which would be likely to offend religious or other sensibilities. The general
prohibition on political advertising in section 321 (in the extremely wide sense that
it is defined in that section) calls for the strictest scrutiny.

65. The margin of appreciation afforded by the domestic Courts to the legislature is
not appropriate. The legislature is composed of political parties all of which benefit
from the current regime which restricts the possibility of any political advertising to
those parties. Politicians have an interest in the outcome of the democratic
process and may be tempted to regulate political communications to gain a
competitive advantage. This legislative regime allows these political parties free
advertising time and opportunities on commercial television and radio in the form
of PPBs and PEBs. Additionally, the legislation further privileges political parties

17
 by giving them a right to broadcast their political advertisements on the national
public broadcast networks operated by the British Broadcasting Corporation,
which is otherwise prohibited from carrying any other form of advertising. This
ban on paid political broadcast advertising thus systematically discriminates
against all and any alternative voices in civil society other than those of the
political parties, to the potential detriment of minority groups. If and insofar as the
broadcast media are a particularly effective and potent means of communicating a
message to the public at large, then the discrimination against any body other
than established political parties having such access is all the more unjustifiable
as it all the more effectively chills the possibility of open public debate on matters
of public concern.

Extraordinary width of prohibition

66. The prohibition on political advertising in section 321 is absolute and permanent
with no exception of any kind being permitted to take into account the nature of
the advertisement. The prohibition applies not just to advertisements whose
content is is political (s.321(2)(b)) but also where the status of the advertiser is
political (s.321(2)(a)). This means that an organisation like the Applicant, which
has political status because of its campaigning objectives, cannot broadcast any
advertisement at all, irrespective of whether the advertisement is political in
content.

67. Furthermore, there are four different senses, reflected in the wording of s. 321(3)
(a)-(g), in which an advertisement or advertiser may be considered to have
objects of a political nature and political ends..
(1) Party politics: this sense relates to identifiable political parties (i.e. parties
that are able to field election candidates), their expenditure and publicity.
That is included within s.321(3)(g), which refers to advertising promoting
the interests of a party organised, in the United Kingdom or elsewhere,
for political ends.
(2) Electoral influence; this relates to promoting the electoral success of a
political party, its candidates or its policies (see s.321(3)(a): influencing
the outcome of elections or referendums).
(3) Promoting, or opposing, changes in law or governmental policy: this
forms a large part of prohibited political advertisements, as defined in
s.321(3) (b), (c), (d) and (e): advertisements with content which falls within
s.321(3) are prohibited (s.321(2)(b)) as are advertisements by a body
wholly or mainly having objects which fall within s.321(3)(b)-(e): s.321(2)

18
 (a).
(4) Finally, there is advertising in the sense of social advocacy. See s.321(3)
(g): influencing public opinion on a matter which, in the United Kingdom, is
a matter of public controversy.

68. This means that the prohibition in section 321 is of an extraordinarily wide nature
and prevents expression in the broadcast media by a very large range of bodies
about a very large range of matters.

Pressing Social Need

69. The proportionality of an interference with Article 10 falls to be considered by
reference to the circumstances of the situation which is before the Court. That
allows the justification for a restrictive measure to be tested against the practical
and factual realities. The operation of the restrictive measure can be tested by
considering facts and circumstances such as whether communication is precluded
even though it is not damaging, or even if it is comparable and responsive to other
messages. The Applicant wishes to have broadcast an Advertisement dealing with
a matter of social advocacy which is not, of itself, said to have any harmful or
offensive consequences. In the circumstances, the prohibition on its broadcast is
a violation of its Article 10 rights which is not necessary in a democratic society.

70. The UK Government seeks to justify the prohibition not by reference to the
particular circumstances of this case but on the basis that a blanket prohibition on
broadcast political advertising is required because of the immediacy and impact of
such advertising, and because the UK Parliament had judged that it was not
possible to devise a more limited restriction which was fair and workable and
would suffice to address the problem.

71. The disproportionate nature of a blanket prohibition on paid political advertising

which extends to law/policy change and social advocacy advertisements can
properly be considered and tested against the facts and circumstances the
practical and factual realities as to the wide operation of the ban, including by
reference to the Applicants case itself. The Applicant relies in particular upon the
following:
(1) Like Amnesty and the RSPCA, the Applicant is a responsible interest
group which has sought, through its My Mates a Primate campaign to
state an opinion on a matter of public interest. There is no basis for
considering this sort of action to be damaging to democracy. Indeed, the

19
 freedom to engage in such political speech is one of the hallmarks of a
democracy.
(2) Moreover, such advertising may be responsive to matters which are
already being debated. The Appellants campaign deals with issues which
are already in the public domain, including in the broadcast media. Thus,
for example, the treatment and exploitation of primates has already been
raised, indirectly, by commercial TV advertisements featuring primates.
The Appellant seeks to respond, and in the same medium.
(3) The impact of the prohibition on political advertising on social-
advocacy/interest groups is vividly depicted by the experiences of the
Applicant, Amnesty International UK and the RSPCA and recognised by
academic commentary (see Lewis [2005] EHRLR 290 at 299, Lewis [2007]
EHRLR 6 and Geddis (2003) 66 MLR 885, 892; Knight (2008) 124 LQR
557).
(4) The Advertisement, were it to be broadcast, would still be subject to
advertising contents-standards, e.g. taste and decency and the
requirement to avoid offending religious or political sensitivities. Thus
Section 319(2)(h) of the 2003 Act tasks the regulatory body OFCOM with
ensuring that the inclusion of advertising which may be misleading,
harmful or offensive in television and radio services is prevented. The
public already experiences broader political advertising in the non-
broadcast media, including via in the internet on their home computers.
The ASAs regulatory function shows that appropriate contents standards
are capable of being applied to political advertisements. This is also
illustrated by the Italian experience: Italys 2005 advertising Code contains
an offensiveness provision (Article 10) which operates alongside
provisions which permit and regulate social advertising on the basis of
content (not status). The Italian Title VI Article 46 is a helpful example of a
balanced provision which does not prohibit social advertising but regulates
it by reference to appropriate contents standards.

72. The prohibition in Section 321 is not necessary in a democratic society, and the
UKs potential arguments on justification are unsatisfactory. A prohibition on
political advertising which goes beyond the confines of advertisements regarding
party politics/ electoral influence so as to include a blanket prohibition on
advertisements regarding law/policy change or social-advocacy on the
broadcast media (but nowhere else) is not convincingly justified under Article
10(2). In particular:

20
 (1) It does not correspond to the core interest in protecting the democratic
process, but is rather broad protectionism extending to matters of
importance and controversy, matters of law and policy, and influence on
public opinion; and
(2) It restricts the ability of campaigning groups such as the Applicant to seek
to persuade the public on matters of general interest without any
assessment of offensiveness, damage to impartiality or relative economic
strength.

73. Nor is there any overarching imperative to restrict social advocacy/law/policy

change advertising in itself. Even if there were, the differential treatment between
broadcasting and other media would be inexplicable and unsustainable. There is
no need to impose a prohibition on law/policy change/social-advocacy
advertising in relation to non-broadcast media (see VgT 74). There is no similar
restriction on cinema advertising. Nor, it would seem, in relation to the internet, a
new but plainly powerful medium. If there were some overarching imperative in
relation to political advertising, one would expect to see it in all media: cf.
Stambuk, where the restriction is applied to all advertising by medical
practitioners; and cf. the EU Directive 2003/33/EC which prohibits tobacco
advertising (Appendix, Tab 18) and Directive 2005/29/EC (Appendix Tab 19) which
controls advertising to children across all media forms. By contrast, there is no
integrated response in the current blanket ban on paid political advertising, unlike
the expenditure capping and third party restrictions relating to party
politics/electoral influence. The fact that the prohibition is status-based as well
as content-based further demonstrates that it is a crude, blanket, response rather
than a tailored, proportionate and necessary prohibition.

The Point is Covered by Established Case Law

74. The Courts decisions in VgT and TV Vest cases have already been considered
(see paragraphs 46 to 62 above). These cases demonstrate that there is a
violation of Article 10.

75. The following points of similarity should be noted:

As in the present case, the respondent governments sought to justify
blanket bans in order to protect the public against powerful financial
groups.
As in the present case, the advertisements were inoffensive and not
capable of lowering the quality of political debate.

21
 As in the present case, the advertisers were not powerful financial groups.

76. In both cases it was held that a ban on political advertising is not necessary in a
democratic society. The reasoning in these cases is directly applicable in this
case. The reasoning is correct and should be followed.

v. Just Satisfaction
77. Article 41 of the Convention provides
If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the
injured party.

78. The Applicant accepts that a finding that its Article 10 rights have been violated
will constitute just satisfaction for the non-pecuniary loss it has suffered as a result
of the ban of the broadcast of the Advertisement.

79. Further, the Applicant has incurred costs and expenses incurred to prevent or
redress the breach of Article 10 in the domestic courts and in this Court. These
are set out in the schedule of costs and expenses filed with the Applicants
observations.

H. RESPONSE TO THE GOVERNMENTS OBSERVATIONS

i. Introduction
80. There are five strands to the Governments submissions:
(1) An argument that the Court should be slow to interfere with the
Governments assessment of the necessity of the blanket ban on paid
political advertising a democratic society on the basis that the
Governments democratically elected politicians will be particularly
sensitive to the measures necessary to safeguard our democracy (per
Lord Bingham, R (Animal Defenders) v Secretary of State [2008] 1 AC
1312, at para 33)(Appendix, Tab 20) and on the subsidiary nature of the
Courts supervisory function with the national authorities hav[ing] direct
democratic legitimation being better placed than an international court to
evaluate local needs and conditions (Hatton v. UK (2003) 37 EHRR 611 at
634 para 97).
(2) The claim that there is a pressing social need for the blanket ban on paid
political advertising, namely to ensure that access to broadcasting of

22
 political (including social advocacy) views should not be made dependent
upon the wealth or access to funds of those who espouse them
(3) The claim that any more limited prohibition than an exceptionless blanket
ban on all and any paid political advertising would be unworkable in
practice.
(4) The claim that the section 321 is not disproportionate because the
applicant has access to other media (such as print, cinema and the
internet) and may to afforded access to broadcast services other than by
way of paid advertising
(5) The claim that the Courts decision in VgT or TV Vest were wrong or
should be confined to their specific facts and should not be followed by this
court.
These five strands of argument are addressed in turn below

ii. The margin of appreciation and the strictness of the Courts scrutiny
81. It is a recurring theme of the Governments submissions that there should be a
wide margin of appreciation to the assessment of whether the ban was necessary
in a democratic society. The UK Parliament, it is said, gave careful consideration
to the matter, and was entitled to form its own view

82. However, the starting point is that the scope for restriction of freedom of
expression on matters of public interest is extremely limited, and the
Governments margin of appreciation is correspondingly constrained. This is the
clear effect of the uncontroversial principles set out above, and is key to the
reasoning of the Court in VgT (66, 74) and in TV Vest (64). It is the public
interest nature of the expression in question which distinguishes the present case,
in common with VgT and TV Vest, from a case such as Murphy.

83. In TV Vest the Court observed that, although the proper margin of appreciation is
extremely narrow, the lack of a clear European consensus speaks in favour of
allowing a somewhat wider margin of appreciation than that normally accorded
with respect to restrictions on political speech (67). It is submitted that this is
correct only insofar as a Contracting State seeks to rely upon special features of
its national situation (the historic religious sensitivities in Ireland) which peculiarly
tend to justify a restriction on freedom of expression, as was the case in Murphy.
That is not the case here.

iii. Pressing social need

23
84. The Government argues that the blanket ban on paid political advertising is
justified by a pressing social need to ensure that groups with rich backers cannot
buy broadcast advertising time, so as to preserve political impartiality in
broadcasting, which is essential to the integrity of the democratic process.

85. The Government begins with the contention that the UK Parliament was entitled to
conclude that broadcast media are, of their very nature, particularly powerful and
pervasive. However, this argument is flawed:
(1) First, the pervasiveness of the broadcast media is incapable of justifying
the blanket ban on paid political advertising because there are many other
forms of highly pervasive mass media which are not subject to that
prohibition. In particular, there is now the possibility of publication on the
internet which is not subject to the same prohibition
(2) Secondly, and critically, the Government has advanced no evidence before
this Court to support its assertion that television and radio are more potent
than other media. The Governments reliance upon dicta in this Courts
jurisprudence as to the power of the audio-visual media demonstrates a
confusion on the Governments part between (a) broadcasting, i.e. live
television and radio, and (b) audio-visual media more generally, including,
for example, film, sound recordings, and multimedia internet sites. The UK
has not sought to impose a prohibition on political advertising in the audio-
visual media generally.
(3) Lastly, even if the Government had an adequate basis for concluding that
the broadcast media possess a special potency, that would be a relevant
factor in the proportionality analysis but could not of itself justify the blanket
ban on paid political advertising: cf. TV Vest at 75.

86. In any event, the point cuts both ways. If the broadcast media are indeed
particularly powerful and effective in putting across a message, this would be all
the more reason for allowing responsible groups in civil society, such as the
Applicant, to be able to access them properly and accurately to inform the public
at large of issues of general importance.

87. Next, the Government argues that without a blanket ban on paid political
advertising, only the wealthy would have access to (expensive) broadcast political
advertising, thereby distorting political debate. However:
(1) It is an inevitable feature of any market in advertising that advertising
space, in whatever medium, will tend to be sold to the highest bidder.

24
 Wealthy organisations can afford to take out full-page advertisements in
national newspapers, or to run commercials at the cinema during popular
and high-grossing films; the ordinary citizen cannot. This general feature of
the market for advertising across all media cannot be prayed in aid to
justify a blanket ban on paid political advertising which is applicable only to
broadcasting.
(2) Further, the Government has pointed to no evidence as to the relative cost
of broadcast advertising and advertising in other media. Such evidence
would be likely to demonstrate this further flaw in the Governments
reasoning: some kinds of broadcast advertising (for example local radio, or
off-peak television advertisements on lesser-known channels) are likely to
be much less expensive than advertising in non-broadcast media (such as
the national press). There is no evidential basis to suppose that the
problems of access to advertising for less wealthy individuals are any
greater in the case of broadcasting than in the case of other media.

88. The Governments third point is that to allow any broadcasting of political
advertisements would pose considerable difficulties for the preservation of
impartiality in broadcasting. This is simply an unwarranted and unevidenced
assertion. Indeed the Governments own expert in the domestic proceedings,
Professor Ayton, concluded that there was no obvious risk of a threat to
impartiality if political advertising were permitted. Although the Government has
described its blanket ban on paid political advertising as one of three regulatory
mechanisms seeking to achieve the objective of impartiality there is nothing to
suggest that the success of the other two mechanisms - the requirement of
impartiality set out in Section 320 of the 2003 Act and the provision of free Party
Political and Party Election Broadcasts now provided for in Section 333 of the
2003 Act - is contingent upon the existence of the blanket ban on paid political
advertising.

89. Accordingly and even before the possibility of alternatives to a blanket ban on
paid political advertising has been considered the Government fails to establish
any convincing basis for the supposed pressing social need upon which it relies.

iii. The case for a more limited prohibition

90. Even if the Government had established such a basis, the blanket ban on paid
political advertising would not be necessary in a democratic society unless it were
impossible to identify any less restrictive means of satisfying that need.

25
91. The Applicant accepts in principle that it might be possible to justify under Article
10 a ban which prohibited only advertisements of a party political or electoral
influence nature. A narrow ban of this kind would carry its own safeguards,
including PPBs and PEBs to ensure that political parties maintained an
opportunity to access broadcast media.

92. The Government, however, fails to advance proper reasons why a more flexible
and less intrusive measure than the current prohibition would not suffice to
achieve its aims. The first argument employed by the Government in this
connection is that the Courts observations in Murphy as to the difficulty of
measures short of a total prohibition on broadcast religious advertising are equally
applicable in the case of political advertising. This, however, is to ignore the two
key features of Murphy: that states had a particularly broad margin of appreciation
in controlling potentially offensive religious speech (in contrast to political speech),
and that anything less than a complete ban would have sat uneasily with the
nature and level of the religious sensitivities the Irish Government had identified.
Moreover, the difficulty identified in Murphy was the difficulty of a regulator
assessing levels of religious offensiveness (a highly subjective characteristic). A
narrower ban such as proposed in the present case would not have to differentiate
on such an uncertain grounds: there is a clear, principled and workable line
between party political speech and political speech in the broader public interest
or social advocacy sense.

93. The Governments next argument is that Parliament was entitled to conclude that
if it was appropriate to ban broadcast political advertising at election times, then it
was open to it to find it appropriate to ban them in between elections. But this
proceeds upon a false premise: Parliament was not entitled to conclude that a
blanket ban on political advertising (in the broad sense) was appropriate at any
time. The Applicant accepts that targeted and proportionate restrictions on political
advertising may be found to be justified under Article 10. The precise terms of
such a scheme are a matter for the Government, not for the Applicant (or this
Court, see Hirst v United Kingdom (No.2) 6 October 2005, No 74025/01 [GC]
83-84). The fundamental point is that the current blanket prohibition cannot be
justified.

94. Thirdly, it is said that the difference between advertising by political parties and by
public interest groups is a question of fact and degree and that Parliament was

26
 entitled to conclude that no sensible distinction could be drawn between political
party advertising and public interest group advertising. This is not correct. There
is a principled and workable distinction between the different senses of political,
a distinction which is not only to be found in comparative materials but is
recognised in UK law in, among other things, the very terms of Section 321(3) of
the 2003 Act itself which differentiates between influencing the outcome of
elections or referendums and promoting the interests of a party or other group of
persons organised, in the United Kingdom or elsewhere, for political ends from
influencing public opinion on a matter which, in the United Kingdom, is a matter of
public controversy; or bringing about changes of the law in the whole or a part of
the United Kingdom or elsewhere, or otherwise influencing the legislative
process. Other European countries have framed and implemented laws which
differentiate between advertisements connected with party political matters and
those which further general social advocacy. The argument that to impose
controls on political parties alone would allow the ban on paid political advertising
easily to be circumvented by other bodies with wider political or social objectives
presupposes, wrongly, that there is no meaningful distinction to be drawn between
party political speech and social advocacy. Moreover, even if the different kinds
of political speech were not severable, that would tend to show no that a blanket
ban is justified but that there should be no ban at all (Application 103, citing
Vajnai v Hungary 8 July 2008, No. 33629/06, 54).

95. Nor is the argument persuasive that it would be unfair to give public interest
groups an opportunity to advertise which is denied to political parties. Crucially,
political parties have exclusive access to PEBs and PBBs, access which is denied
to public interest groups.

96. The Government mounts an unconvincing defence of the breadth of current

blanket prohibition on paid political advertising which, it is accepted, covers not
only advertising of a broadly political nature, but any advertising by a body with
broadly political objectives:
(1) The blanket paid on paid political advertising in s.321(3) is framed so as to
identify and prohibit political advertising by a non-political body (e.g. by a
natural person or by a charity). Thus the ban already positively requires a
regulatory assessment as to whether or not a proposed advertisement is
truly political in nature within the meaning of s. 321 of the 2003 Act. The
Governments suggestion that the existence of a blanket ban in the terms
set out in the 2003 Act prevents refined theological argument about the

27
 true nature of the advertisement, or that regulatory assessment of
individual advertisements for political content is undesirable or
impracticable, is therefore contradicted by the very terms of the current
statutory framework.
(2) There is further inconsistency. The Government says that
(a) an advertisement by a body of a political nature would be very
likely to draw attention to the political objects of that body, and
(b) if a political organisation wishes to broadcast an advertisement in
relation to a non-political matter, all it has to do is set up a
charitable arm.
The fact that the latter course is possible under the present statutes shows
that the objection to political bodies airing non-political advertisements has
no sensible basis. In reality it is a huge administrative burden for a public
interest NGO to set up a charitable arm. The current blanket ban on paid
political advertising on grounds of non-charitable status is therefore liable
to restrict free expression in broadcast advertising to those organisations
which are sufficiently well-funded to set up a charity for the purpose:
allowing the wealthiest to have the loudest voice, and sitting uneasily with
the Governments stated pressing social need.

97. Lastly under this heading the Government relies upon a number of supposed
practical difficulties in legislating for anything less than an outright ban. These
supposed difficulties may be dealt with shortly:
(1) First, the narrower ban suggested by the applicant focussed specifically on
party political/electoral influence adverting as opposed to social advocacy
advertising is eminently practicable, and has been put into practice in other
European states.
(2) Secondly, although other suggested compromise solutions were said by
the UK Parliaments Joint Committee on Human Rights to be a challenge
to put in statutory form, there is no evidence that such solutions would be
impossible to achieve. The fact that a less restrictive method of securing
the Governments aims might prove challenging cannot justify an
interference with the right to free expression on public interest matters.

iv. Further points on proportionality

98. The UK makes two further points in seeking to contend that the blanket ban on
paid political advertising is a proportionate means of achieving its legitimate
objectives: it contends that the Applicant has many other means of disseminating

28
 information through alternative media, and that there is scope for PPBs under the
Government system (20(9)). The first argument is unconvincing for the reasons
explained in VgT (77) and TV Vest at 73. The second is plainly inapplicable in
the Applicants case, since, just like the applicant in TV Vest, it has no access to
PPBs.

v. The VgT Case

99. The Government invites the Court to restrict the application of VgT to the
particular facts and circumstances of that case (UK Observations 30). That
invitation should be declined, for the following reasons:
(1) The facts of the present application fit squarely with those of VgT. They
involve: (i) an animal rights public interest group (cf. VgT at 8); (ii) an
attempt by that group to have a television advertisement broadcast for the
purpose of animal welfare and environmental protection campaigning (cf.
VgT at 9-11); and (iii) a blanket ban on broadcast political advertising
which prohibits such an advertisement (cf. VgT at 28).
(2) The Government suggests that VgT turned on a concern to restore
balance to a particular political debate on television which had, in the
particular circumstances of the case, become unbalanced, entitling the
applicant to respond. That suggestion is directly contradicted by the
judgment itself: the key consideration for the Court was that the applicant
was not seeking to engage in commercial expression but to reflect
controversial opinions pertaining to modern society in general (70). The
Court emphasised that it was not the specific circumstances of the
applicant but the public interest nature of the expression that was key.
(3) There is in the present case, contrary to the Governments submissions, a
specific imbalance in broadcast political discourse which the Applicant was
seeking to cure: the use of primates in commercial advertising diminishes
their status and implies that such use is acceptable; the Applicant was
seeking to rebut that message. But this is strictly immaterial for the reason
given above: it was the general nature of the Applicants expression, not
any specific need to restore balance that was determinative in the
judgment of the Court in VgT.
(4) The fact that VgT is concerned with the application of general principles
rather than turning on its specific facts is confirmed by the judgments in
Murphy and in TV Vest.

100. The Government also seeks to argue that the decision in VgT is erroneous and

29
 should not be followed. That is a point which has effectively already been
considered by this Court on at least three previous occasions: in Murphy (where
VgT was confirmed), VgT (No. 2) (where VgT was followed) and TV Vest (where
this same argument was advanced and rejected). The Court has given clear
reasons in all these cases, as in VgT itself, and there is nothing new or compelling
in the alternative position suggested by the Government.

101. It is, moreover, in the interests of legal certainty and the coherent development of
Convention jurisprudence that the clear precedents laid down in VgT, VgT (No. 2)
and TV Vest should be followed rather than abandoned.

102. Accordingly, and for all the reasons set out above, it is submitted that the PPAs
interference with the Applicants Article 10 rights is not necessary in a democratic
society, and that those rights have been infringed.

HUGH TOMLINSON QC
AIDAN ONEILL QC
Matrix Chambers
TAMSIN ALLEN
Bindman LLP
3 February 2012

30
 COUR EUROPENNE DES DROITS DE LHOMME
THE EUROPEAN COURT OF HUMAN RIGHTS
Application No: 48876/08

BETWEEN

ANIMAL DEFENDERS INTERNATIONAL

Applicant
- and -

THE UNITED KINGDOM

Respondent

_____________________________________________________________

APPENDICES TO THE APPLICANT'S MEMORIAL

_____________________________________________________________

Tab Document Date

1 Statement of Facts prepared by the Fourth Section 2011

2. Sections 319-321, 333 Communications Act 2003 2003

3 Political advertising: case studies and monitoring 2006

4 Citizens United v. Federal Election Commission 12 Jan 2010

558 U.S. 08-205 (2010), 130 S.Ct. 876

5 Committee of Ministers, Rec(2007)15 7 Nov 2007

6 Convention on Trans-frontier Television (ECTT) 1989/1998

7 Joined Cases C-403/08 & C-429/08 FA Premier League 4 Oct 2011

4 October [2011] ECR I-nyr; [2012] FSR 1

8 Protocol 29 on public broadcasting in EU Member States 2009

9 'Television Without Frontiers' Directive 2010/13/EU 2010

[2010] OJ L267/21

10 Case C-245/01 RTL Television, [2003] ECR I-12489 2003

11 Case C-411/10 N.S. v Home Secretary (CJEU) 21 Dec 2011

12. EU Charter of Fundamental Rights 2000/2007

[2007] OJ C303/1

13. R (Animal Defenders) [2006] EWHC 3069; [2007] EMLR 6 2006

14. Case C-555/07, Kckdeveci, [2010] ECR I-365 2010

15. Case C-260/89 ERT [1991] ECR 2925 1991

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16. Case C-353/89 Commission v NL [1991] ECR I-4069 1991

17. Knight Monkeying around with free speech 2008

(2008) LQR 557

18. Tobacco Advertising Directive 2003/33/EC 2003

19. Advertising to Children Directive 2005/29/EC 2005

20. R (Animal Defenders) [2008] 1 AC 1312, HL 2008

21. Schedule of Costs and Expenses 2011

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