Animal Defenders International, R (on the Application of) v Secretary of State for Culture Media & Sport [DYO:2006] EWHC 3069 (Admin)
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Animal Defenders International ("ADI") is an English nonprofit organisation whose aim is to protect animals from suffering or, at the very least, relieve their distress. To this end, it campaigns to influence law and public policy with respect to their treatment. One such campaign in 2005, My Mate's a Primate, sought to highlight the inappropriateness of using primates for public entertainment in venues such as zoos and circuses. The Broadcast Advertising Clearance Centre (the "BACC") declined to approve a related television advertisement on the grounds that it contravened section 321(2)(a) of the Communications Act 2003 (UK) because ADI's focus was clearly political, not charitable. According to this section, where a body's underlying aims are mainly political, its advertising is also regarded as politically motivated. Therefore, ADI had breached the general prohibition on political broadcast advertising as set out in section 319 of this Act, the standards code approved by the Office of Communications ("OFCOM"), the independent regulator for the United Kingdom' communications industries. The matter came before the administrative arm of the England and Wales High Court.
In its defence, ADI sought a declaration of incompatibility under section 4 of the Human Rights Act 1998 (UK), the Act which gave effect to the European Convention on Human Rights ("the ECHR") in the United Kingdom. It claimed that banning its 20 second advertisement violated Article 10(1) of the ECHR which protects the right to freedom of expression, including the right, "To impart information and ideas without interference by public authority." However, this right is qualified in Article 10(2) where democratic principles necessitate the protection of the rights of others. To avail ADI of the protection of Article 10(1), it was argued that there was a spectrum in political advertising with party political and electoral matters strongly linked to the prohibition, law and policy issues less so and social advocacy only weakly related. Since ADI's core business should be classified as social advocacy, its advertising had been mistakenly categorized as political.
A Swiss case involving an animal welfare group, VGT v Switzerland (2002) 34 EHRR 321, was cited to bolster ADI's defence. In that decision, a Chamber of the Court held that the prohibition of an anti-intensive pig-farming advertisement infringed Article 10. Although the advertisement was political in nature, its banning could not be justified as being necessary for the protection of the rights of others in a democratic society.
Both Lord Justice Auld and Mr. Justice Ousley were at pains to distinguish this judgment on the basis that, because it involved a specific, Swiss, factual scenario, it provided no useful guidance for their own decisions. They emphasized the necessity to ensure that the broadcast media were not dominated by wealthy factions who were able to wield a disproportionate political influence over them and so curb normal democratic process. The argument that ADI was engaged in social advocacy found no favour either because it drew arbitrary distinctions in political advertising which would create uncertainty and encourage litigation.
Therefore, the judgment of the High Court of England and Wales was that the advertising ban did not contravene Article 10 of the ECHR as its intent was to ensure public debate was conducted in a democratic fashion within broadly defined parameters that were not open to manipulation by groups with sizeable monetary resources. No declaration of incompatibility under the Human Rights Act 1998 (UK) could be made out. Article 10 of the ECHR and the contentious sections of the Communications Act 2003 (UK) were found to be sufficiently congruent for Lord Justice Auld and Mr. Justice Ousley to find that vetoing the offending advertisement did not compromise the basic democratic right to freedom of expression, as it ensured that the interests of all were safeguarded.