R London Christian Radio Ltd and Another (1st Appellant) Christian Communications Partners (2nd Appellant) v Radio Advertising Clearance Centre Secretary of State for Culture Media and Sport (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Richards,Lord Justice Elias |
| Judgment Date | 19 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1495 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/1209 |
| Date | 19 November 2013 |
[2013] EWCA Civ 1495
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION.
ADMINISTRATIVE COURT
MR JUSTICE SILBER
CO78892010
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Richards
and
Lord Justice Elias
Case No: C1/2012/1209
and
and
Aidan O'Neill (instructed by Aughton Ainsworth) for the First and Second Appellants
Samantha Broadfoot (instructed by Treasury Solicitors) for the Interested Party
London Christian Radio Limited ("LCR") runs a national radio station called "Premier Christian Radio". Christian Communications Partnership Limited ("CCP") is a publisher of Christian magazines. CCP wished to publish an advertisement on LCR's radio station about the marginalisation of Christians in the workplace. The advertisement that it wished to place was in these terms:
"We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the work place. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit CCPmagazines.co.uk and report your experiences."
Under the relevant regulatory scheme, the proposed advertisement was considered by the Radio Advertising Clearance Centre ("RACC") who concluded that clearance to broadcast the advertisement could not be given because its broadcast would be contrary to the prohibition on political broadcasting. Its decision was the culmination of exchanges between it and CCP. For example, on 28 May 2010, the RACC asked CCP for confirmation "whether or not CCP's aims and objectives, or the motive of its radio campaign, can be said to be directed towards a 'political end'….If the advertiser or its ad seeks to influence Government or Government policy in any way, it would be an unacceptable ad under the BCAP Ad Code". CCP's response on the same day was that it would be taking the findings "and using these to influence of change Government policy". The RACC later sent CCP questionnaires whose object was to assist it in deciding whether the advertisement was directed towards a political end.
In an email dated 9 December 2011, the RACC informed CCP that the advertisement, as currently worded, could properly be said to be "directed towards a political end". It said:
"To explain our reasoning, we feel that it is explicit from the wording of the ad that [CCP] considers that many Christians are increasingly marginalised in the work place and note that the ad goes then states [ sic] that the data being asked for will be used both "to inform the public debate" and "to help make a fairer society". Our common sense interpretation of these phrases, in this particular context, is that the advertiser intends to use the information provided to influence or change Government policy to help address the unfairness. It seems to us, therefore, that the ad itself, when taken as a whole, is directed towards a 'political' end as defined by the Comms Act and, in turn, is in breach of all or some of the BCAP Code Rule 7.2.2(b), (c), (d) and (f). For the avoidance of any doubt, even if the ad were capable of being read in the 'neutral' way you suggest, our view would remain that it would be directed towards a political end in light of the express indications of CCP's intentions with regard to the information sought."
In these proceedings, the appellants challenged this decision on the grounds that (i) the advertisement was not "directed towards a political end" within the meaning of section 319(2)(b) of the Communications Act 2003 ("the 2003 Act"); and (ii) the prohibition was an unlawful interference with their rights under article 10 of the European Convention on Human Rights ("the Convention"). They sought a declaration that the broadcast would not contravene sections 319 and 321 of the 2003 Act and a declaration under section 4 of the Human Rights Act 1998 (" HRA") that these sections are incompatible with article 10 of the Convention.
Silber J rejected both grounds. They appeal with the permission of Laws LJ. I should say at once that they no longer seek to argue that section 319(2)(b) is incompatible with article 10 of the Convention.
The relevant legislative material
" Section 319:
(1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.
(2) The standards objectives are—
… (g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services…
Section 321:
…(2) For the purposes of section 319(2)(g) an advertisement contravenes the prohibition on political advertising if it is—
(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
(b) an advertisement which is directed towards a political end; or
(c) an advertisement which has a connection with an industrial dispute.
(3) For the purposes of this section objects of a political nature and political ends include each of the following —
(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;
(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;
(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;
(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;
(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;
(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;
(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.
…(7) Provision included by virtue of this section in standards set under section 319 is not to apply to, or to be construed as prohibiting the inclusion in a programme service of —
(a) an advertisement of a public service nature inserted by, or on behalf of, a government department; or
(b) a party political or referendum campaign broadcast the inclusion of which is required by a condition imposed under section 333 or by paragraph 18 of Schedule 12 to this Act."
Political impartiality in broadcasting
A fundamental feature of broadcasting regulation in the United Kingdom is that impartiality in broadcast services is maintained. This is achieved by three regulatory mechanisms:
(i) the imposition of special requirements of impartiality by section 320 of the 2003 Act;
(ii) the provision of free party political election broadcasts for political parties: see section 333 of the 2003 Act; and
(iii) the prohibition on political advertising by sections 319(2)(g) and 321 of the 2003 Act.
The justification for the prohibition on political advertising was described by Lord Bingham in Animal Defenders v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312. At para 28, he said:
"The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising."
Lady Hale said much the same at para 51.
This justification was upheld by the Grand Chamber of the ECtHR in the same case: (Application No 48876/08), 22 April 2013. It is sufficient to set out what the majority said in their judgment at...
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