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United Kingdom: High Court Upholds Ban On "Political" Christian Radio Ad: London Christian Radio v RACC And The Secretary Of State For Culture, Olympics, Media And Sport
The High Court last week dismissed a judicial review application
brought by two Christian media companies seeking to overturn the
decision of the Radio Advertising Clearance Centre (RACC) to refuse
clearance of a radio ad which the RACC considered to be in breach
of the ban on political advertising contained in sections 319 and
321 of the Communications Act 2003.
Background
London Christian Radio Limited (LCR), which runs national radio
station Premier Christian Radio and Christian Communications
Partnership (CCP), which is a publisher of Christian magazines,
applied for judicial review after its proposed advert concerning
the marginalisation of Christians in the workplace was turned down
for broadcast by the RACC under the Act. The ad informed listeners
that it sought "the most accurate data to inform the
public debate" and to "help make it a fairer
society".
The RACC refused clearance because it considered that the ad
infringed the prohibitions on political advertising set out in
sections 319 and 321 of the Act as being "an advertisement
which is directed towards a political end."
LCR and CCP challenged this refusal on the basis that the ad did
not fall within the statutory ban, and they also submitted that if
it did, then the ban was incompatible with their right to freedom
of expression under Article 10 of the European Convention on Human
Rights.
Decision
Mr Justice Silber dismissed the claimants' application,
focusing firstly on whether the ban on political advertising on the
radio infringed the claimants' rights under Article 10. An
individual's right to freedom of expression will not be
infringed by "restrictions ... as are prescribed by
law", such as those included in the 2003 Act, provided
that such restrictions are "necessary in a democratic
society."
The judge noted that he was bound to follow the decision of the
House of Lords in R (Animal Defenders International) v
Secretary of State for Culture, Media and Sport [2008], a
strikingly similar case involving a television ad, in which it was
held that the legislation had a legitimate aim which was the
protection of the rights of others which included the right to be
protected against the potential mischief of partial political
advertising.
As in Lord Bingham's judgment in Animal
Defenders, Mr Justice Silber emphasised the need for the state
to be able to restrict broadcast political advertising because of
the pervasive nature of these forms of media, in order to ensure a
balanced public discussion of political issues, without fear of
distortion by political or non political parties with unlimited
resources. Mr Justice Silber concluded that the restrictions set
out in section 319 of the Act constituted restrictions prescribed
by law which are necessary in a democratic society.
Mr Justice Silber also addressed the question of whether the ad
constituted "political advertising" so that it
could not be included on any radio programme. He concluded that the
ad was seeking to obtain information which would ultimately be used
to influence the legislative process, to influence policy or the
decisions of policy makers or influence public opinion on a matter
which, in the United Kingdom, is a matter of public controversy.
Consequently, the ad fell foul of sections 321(3)(b), (c) and (f)
of the Act. The RACC's decision to refuse to clear the ad
could not be impugned and the claimants' application was
rejected.
Conclusion
The judgment in this case was handed down notwithstanding the
pending judgment of the Grand Chamber of the European Court of
Human Rights in the Animal Defenders case. Given that the
High Court in this case was bound by the decision of the House of
Lords in Animal Defenders, the parties will no doubt be
awaiting the decision of the Grand Chamber as to whether the House
of Lords was correct in that case in its interpretation of the
restrictions imposed by the 2003 Act and their compatibility with
Article 10.
The RACC chose not to be represented at the hearing of the
application and was advised by Swan Turton.
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