‘A Monstrous and Unjustifiable Infringement’?: Political Expression and the Broadcasting Ban on Advocacy Advertising
| Date | 01 March 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6602003 |
| Author | Andrew Scott |
| Published date | 01 March 2003 |
‘A Monstrous and Unjustifiable Infringement’?:
Political Expression and the Broadcasting Ban on
Advocacy Advertising
Andrew Scott
n
This paper considers the legality of the broadcasting prohibition on ‘advocacy
advertising’ – the use of advertising space to communicate social, political and
moral arguments to a wider public – in the light of the growing jurisprudence on
the freedom of political expression. The prohibition is currently found in the
Broadcasting Act 1990, and the Government has proposed its reiteration in the
forthcoming Communications Bill to fall within the regulatory ambit of OFCOM.
The paper begins by introducing and illustrating advocacy advertising and the
restrictions upon it. It proceeds to review the relevant jurisprudence on political
expression, to analyse the familiar arguments in favour of retention of the
prohibition, and to weigh the counter-arguments. The paper concludes that the
purported justifications sit ill against existing legal rulings, and evidence a poor
understanding of the critical sophistication of the public as a broadcasting
audience. It suggests that a continuation of the prohibition would be unlawful.
A notable feature of the British public sphere is the dearth of privately sponsored
political representations made through the broadcast media. This absence of
‘advocacy advertising’ on television and radio can be attributed to a restriction
imposed by statute. Ostensibly, the prohibition is designed to prevent the
garnering of influence over elected government by affluent interests that might
flow from the financing of party-political advertising. It is also said to limit the
prospect of a public sphere inundated and overwhelmed by the ideas and values of
privileged groups. The continuing value of the measure is currently under review
as part of the wider proposal to create a single regulator for the communications
sector.
1
The Government envisages that the restriction will be maintained, albeit
transferred into the ambit of the new regulator.
At first glance, however, the prohibition sits at odds with the growing respect
accorded by the courts to the freedom of political expression. Indeed, it has been
described as ‘a monstrous and unjustifiable infringement’.
2
Recent decisions –
such as that of the Court of Appeal in the ProLife Alliance case and that of the
European Court of Human Rights (ECtHR) in VGT vSwitzerland – suggest that
the measure would be unlikely to withstand a rights-based legal challenge.
3
The
n
Norwich Law School, University of East Anglia. I would like to extend my warmest thanks to
Michael Harker, Brigid Hadfield, David Mead, Noel Scott and the journal referees who each
offered valuable comments on earlier drafts of this paper. Errors and inconsistencies remain my
own.
1 DTI/DCMS, A New Future for Communications Cm 5010 (2000). A draft Communications Bill
was published in May 2002. Moreover, the new body – OFCOM – has already been established
in skeleton form by the Office of Communications Act 2002.
2 Professor Eric Barendt, in evidence to the Joint Committee on the Draft Communications Bill,
17 June 2002.
3 The first case involved a decision by the BBC and other terrestrial broadcasters to refuse on
grounds of ‘taste and decency’ to air a party election broadcast recorded by the group. Although
in no way sensationalised, the proposed broadcast included footage of dismembered foetuses
that might have been expected to be deeply harrowing to a large number of viewers – see: R
rThe Modern Law Review Limited 2003 (MLR 66:2, March). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
224
aim of this paper is to consider further this quandary. The paper proceeds in four
parts. First, the phenomenon of advocacy advertising is described, and its political
orientation illustrated. Secondly, the restrictions imposed on the broadcasting of
advocacy advertising are outlined. In light of these restrictions, recent develop-
ments in the jurisprudence concerning parallel limitations on political expression,
at both the Strasbourg and domestic levels, are reviewed. The final, most
substantial, part of the paper then offers an analysis of the balancing of interests
required by this jurisprudence in order to assess the continuing legality of this ban.
The paper concludes that aspects of the current prohibition are unsustainable, and
that there may be alternative, more justifiable means of securing the remaining
objects.
Advocacy advertising in the UK
Advocacy advertising is a form of publicity that evidences a predominantly
political intent; political representations made through paid media. It is unusual in
that it focuses not on the promotion of specific products, but rather on the
advancement of some partisan opinion or social cause. Although certainly a
related genre, it is distinct from both public information campaigns and party-
political broadcasts: the former because it sets out to convey contentious opinions
rather than an educational message,
4
and the latter due to the absence of any
immediate association with formal, electoral politics. At its margins, advocacy
advertising melds into two further forms of representation. On one hand, ‘cause-
related marketing’ involves private companies in seeking directly to enhance the
corporate brand through association with specific social causes.
5
On the other
hand, ‘electoral advocacy’ comprises representations that, although issued by
some third party, exhort voters to support a particular candidate or party in
electoral contests.
6
At its core, however, advocacy advertising is issue-based; it is
concerned with consciousness-raising regarding specific matters deemed by its
sponsors to be of wider public concern. The viewpoints expressed through
advocacy advertising can range from the mainstream to the unusual, alarming, or
offensive. The agendas pursued are both non-commercial, in that they are not
(On the application of ProLife Alliance) vBritish Broadcasting Corporation, unreported, Court
of Appeal, 14 March 2002. The second case saw an animal welfare pressure group attempt to
broadcast an advocacy advertisement on Swiss television in response to meat industry
commercials. The advertisement first showed footage of a wild sow building a nest for its
piglets in a forest. It then depicted a noisy hall in which pigs, corralled in small individual
pens, gnawed on the iron bars of their cages. The advertisement had been refused airtime on
account of its ‘clear political character’ – see VGT Verein gegen Tierfabriken vSwitzerland (2002)
34 EHRR 4.
4 The Government has recently come under fire for politicising such information campaigns – see
BBC Panorama, Tony in Adland, 26 May 2002.
5 S. Adkins, Cause Related Marketing: Who Cares Wins (London: Butterworth Heinemann, 2000).
The early decision by Iceland Frozen Foods plc to oppose GM foods, to source non-GM
ingredients, and to make consumers aware of this practice can be cited as an illustration. It
hoped to gain a commercial advantage by ‘linking efficiency with a social conscience and
profitability with good business ethics’ – see J. Vidal, ‘Genetic Engineering: Ethics Man’, The
Guardian 1 April 1998. Similarly, the Benetton company has long been associated with such
marketing.
6 Contested examples can be seen Walker vUnison [1995] SLT 1226, and RvTronoh Mines Ltd
[1952] 1 All ER 697. The latter involved an advertised plea to voters by a company disgruntled at
the socialist policies of the incumbent government to elect ‘a new and strong government with
ministers who may be relied upon to encourage business enterprise and initiative’ (698).
A Monstrous and Unjustifiable InfringementMarch 2003]
225rThe Modern Law Review Limited 2003
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