Freedom of Expression or Freedom from Electoral Unfairness?: The ECHR Upholds a Ban on Political Advertising

—Eoin Carolan, University College Dublin

The decision in Animal Defenders International v. U.K. represents the European Court of Human Rights’ latest effort to resolve the contentious and long-running debate about the compatibility of a prohibition on political advertising with the protection afforded to freedom of expression under Article 10 of the European Convention on Human Rights.

Like the US Supreme Court’s ruling in Citizens United, the Court’s sharp divisions over this specific prohibition reflected more fundamental disagreements about the value of expression and the role of political advertising in a modern democratic system. Unlike the Citizens United decision, however, the majority in Animal Defenders upheld the impugned prohibition as a permissible attempt to “protect the democratic process from distortion by powerful financial groups with advantageous access to influential media”.

The case concerned a ban in the United Kingdom on paid political advertising on broadcast television or radio. A 2006 report found that such prohibitions were relatively common, being found in “the vast majority of Western European countries” as well as “several counties from central and Eastern Europe”.

However, the legality of such bans was called into question by a decision of the ECHR in 2001 in Verein Gegen Tierfabriken Schweiz (VGT) V. Switzerland (Tierfabriken I). There, the Court held that a prohibition on political advertising on radio and television contravened Article 10. While the Court accepted that it was permissible, in principle, to seek to prevent the domination of public debate by wealthy financial groups, it concluded that an absolute prohibition was disproportionate because of the way in which it applied without distinction to smaller or less well funded organisations. In fact, as the Court pointed out, such advertising provided one of the only means for such smaller organisations to draw public attention to their campaigns.

These principles were restated in a 2008 decision in TV Vest v. Norway where the Court again pointed to the problem of applying a ban purportedly aimed at well-funded organisations to those with comparatively few resources. As it explained “while the Pensioners Party [who had brought the complaint] belonged to a category for whose protection the ban was, in principle, intended, the Court, unlike the majority in the [Norwegian] Supreme 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 edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to put its message across to the public through that medium. By being denied this possibility under the law, the Pensioners Party was at a disadvantage compared with major parties which had obtained edited broadcasting coverage, and this could not be offset by the possibility available to it to use other, less potent, media”.

This suggested that such absolute prohibitions were likely to be contrary to the requirements of the Convention. Yet, in a decision which spoke volumes about the degree of disquiet which these rulings produced at national level, the House of Lords refused to follow the ECHR’s decision in 2008 on the grounds that the “full strength” of the antidistortion argument had not been deployed in Tierfabriken I.

The House of Lords placed considerable emphasis on the fact that the prohibition on political advertising on television and radio was a long-standing principle of English law which had been subject to detailed review by Parliament on a number of occasions. Yet, perhaps the most accurate explanation of the concerns which motivated the House of Lords’ reluctance to embrace Tierfabriken I came in Baroness Hale’s observation that:

“There was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times: it is estimated that the disputed 2000 elections for President and Congress cost as much as US$3 billion. Attempts to regulate campaign spending are struck down in the name of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press”: see particularly Buckley v Valco, 424 US 1 (1976). A fortiori there is no limit to the amount that pressure groups can spend on getting their message across in the most powerful and pervasive media available.

In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. “Within the sphere of democratic politics, we confront each other as moral equals” (Ackerman and Ayres, Voting with Dollars, 2003, p 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.”

That the spectre of US-style democracy had loomed large in Parliament’s desire to maintain the ban was evidenced by the 1998 report of the Neill Committee on Standards in Public Life. Having visited various countries, including the US, the Report concluded that:

“Preventing the political parties and other politically motivated organisations from buying time on television and radio has the effect of restricting the total amount of money they can spend and also, thereby of limiting the amounts of money they have to raise. These effects are almost universally agreed to be beneficial …. During election campaigns, television viewers and radio listeners are not subjected to a constant barrage of party political propaganda …. The parties’ dependence on wealthy donors is reduced. Political leaders are not forced to spend enormous amounts of time and energy raising money to fund television and radio campaigns. Not least of the benefits is the fact that the broadcasters provide the parties with free air time. This means that all the major political parties, and not just the richest ones, are given an opportunity to state their views. Almost all those who have observed elections campaigns in the United States regard these aspects of the UK system as superior …. It is the pressure to advertise, as much as any other factor, which generates the demand for money and hence the arms race between Democrats and Republicans.”

This concern to prevent these perceived electoral ills had led Parliament to preserve its absolute prohibition when enacting new communications legislation in 2002 with unanimous cross-party support. This occurred despite the government’s express acknowledgment that this may be incompatible with the decision of the ECHR in Tierfabriken I – thereby underlining the depth of feeling in the UK on this issue.

The Grand Chamber’s consideration of this issue was clearly influenced to some degree by these domestic developments. The majority, having described the legislative and judicial reviews of this prohibition in the UK as “exacting and pertinent”, observed that the lack of a European consensus on this question “could speak in favour of allowing a somewhat wider margin of appreciation than that normally afforded to restrictions on expression on matters of public interest”.

In examining the specific circumstances of the applicant, the majority moved away from the de minimis-style proportionality analysis applied in Tierfabriken I and TV Vest. The Court again accepted that the applicant here was a smaller group which was caught by a prohibition primarily designed to counter the influence of larger, wealthier organisations. However, here the Court went on to refer to the practical difficulties of designing a system capable of distinguishing between such groups.

“[T]he Court considers it reasonable to fear that this option would give rise to a risk of wealthy bodies with agendas being fronted by social advocacy groups created for that precise purpose. Financial caps on advertising could be circumvented by those wealthy bodies creating a large number of similar interest groups, thereby accumulating advertising time. The Court also considers rational the concern that a prohibition requiring a case-by-case distinction between advertisers and advertisements might not be a feasible means of achieving the legitimate aim. In particular, having regard to the complex regulatory background, this form of control could lead to uncertainty, litigation, expense and delay as well as to allegations of discrimination and arbitrariness, these being reasons which can justify a general measure. It was reasonable therefore for the Government to fear that a proposed alternative option was not feasible …”.

The majority also pointed to the fact that it remained open to Animal Defenders to participate in political broadcast programmes, as well as to advertise via other means.

The minority disagreed strongly with the majority’s view that a general prohibition was a justified and proportionate means of pursuing the antidistortion objective. However, there seemed to be differences of emphasis in the minority analysis.

Three of the judges – Judge Tulkens, Spielmann and Laffranque – accepted the legitimacy of the antidistortion objective but felt that there were less restrictive means of achieving that aim. They pointed out, for example, that the ban applied to this applicant without any assessment of the content of the proposed advertisement or of the applicant’s resources.

Judges Ziemele, Sajo, Kalaydgieva, Vucinic and De Gaetano, however, challenged the legitimacy of the objective of the regulation itself. While they also referred to the possibility of less restrictive alternatives, this was accompanied by the more absolutist assertions that, “[t]he very initiative to legislate on the exercise of freedom in the name of broadcasting freedom and in order to promote democracy in general terms … remains problematic” on the basis that “[t]here can be no robust democracy through benevolent silencing of all voices”.

Broadly speaking, therefore, the Grand Chamber appears to have divided in three ways on this issue: between regulatory pragmatists (the majority), regulatory optimists (the three minority), and regulatory sceptics (the five minority).

While the Court’s ruling may have been influenced in part, by factors such as the Strasbourg-London relationship, it is also likely that – like the House of Lords before it – the decision reflected a conscious concern to avoid the perceived excesses of political advertising in the U.S. The decision accordingly provides a useful illustration of the comparative differences between American and European attitudes to both freedom of expression and the democratic process.

In particular, a comparison between the treatment of the antidistortion argument in Animal Defenders and Citizen United is instructive.

It is important to note that there were relevant differences between the provisions being challenged in each instance. Whereas Animal Defenders concerned an absolute ban on political advertising on broadcast media, Citizens United concerned a ban on corporate political speech in the period prior to an election. Thus, for example, questions of speaker or viewpoint discrimination did not arise in Animal Defenders.

Nonetheless, the fact that the provisions impugned in each case were animated by similar considerations means that some comparisons can be usefully drawn.

It is well known that there are important conceptual differences between theories of freedom of expression in the US and in Europe. US free speech doctrines, influenced by the absolutist text of the First Amendment and an often-deregulatory reading of the marketplace of ideas theory, emphasise the importance of protecting expression qua expression. The Article 10 jurisprudence, on the other hand, combines a strong commitment to the democratic value of expression with a more consequentalist willingness to accept the regulation of expression of limited value.

This dichotomy between a deontological US and a consequentialist Europe is often oversimplified, as the similarities between the Citizen United minority and Animal Defenders majority (and, to an extent, between the Citizens United majority and the regulatory sceptics in Animal Defenders) demonstrates. Nonetheless, it is notable that the majorities in each case identified similar problems with the regulation of political advertising – but then drew diametrically opposite conclusions as to how best to proceed.

Both, for example, accepted that a regime which involved the application of administrative judgment could lead to uncertainty and confusion. Yet, the ECHR majority felt that this justified a general prohibition rather than a less workable or effective alternatives.

Both accepted that an absolute prohibition would potentially capture small as well as wealthy organisations. But the Animal Defenders majority, departing from its earlier rulings, accepted that deregulation would not necessarily benefit the applicant because of the risk of domination by wealthy groups.

Perhaps most tellingly, both emphasised the importance for democracy of enabling citizens to make an informed judgment. However, they differed profoundly on the mechanisms by which this should be secured.

The Citizens United majority saw speech as the means of holding officials accountable to the people, and the prohibition on corporate advertising as an “interfere[nce] with the open marketplace of ideas”, permitting “censorship … vast in its reach”. It was for the people alone “to judge what is true and what is false”.

This deregulatory approach to speech regulation contrasts sharply with the ECHR’s understanding of Article 10 as imposing on states “a positive obligation to put in place an appropriate legislative and administrative framework to guarantee pluralism” in broadcasting (Centro Europa 7 v. Italy). For the Court, unrestricted advertising could plausible allow wealthy groups to “obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate, of which the State remains the ultimate guarantor”. It was therefore permissible for the state to regulate advertising for that purpose.
There seem therefore to be several reasons for the differences in the Court’s analysis of these common questions.

One, as Baroness Hale admitted, is likely to have been a desire to avoid the kind of finance-dominated and sometimes bizarrely-regulated campaigning which Europeans tend to associate with the US. This may have encouraged the ECHR’s to eschew the regulatory optimism of its earlier decisions in favour of a more pragmatic approach.

Secondly, the decision does seem to in part reflect familiar differences between the theory and practice of freedom of expression between the US and Europe.

Thirdly, however, the analysis also seems to indicate broader differences between the different majority’s conception of the democratic process and, in particular, of the role of the state and of the law in regulating political campaigns. The ECHR regards state intervention in the democratic process as not simply permissible but required by the necessity to ensure a measure of equality in the political debate. This speaks to a larger divergence between judicial attitudes in the US and in some European states about the extent to which principles of equality, fairness or pluralism ought to impose limitations on how electoral procedures are organised or applied.

Suggested citation: Eoin Carolan, Freedom of Expression or Freedom from Electoral Unfairness?: The ECHR Upholds a Ban on Political Advertising, Int’l J. Const. L. Blog, Aug. 29, 2013, available at: http://www.iconnectblog.com/2013/08/freedom-of-expression-or-freedom-from-electoral-unfairness-the-echr-upholds-a-ban-on-political-advertising