R (Animal Defenders International) v Secretary of State for Culture, Media and Sport

JurisdictionUK Non-devolved
CourtHouse of Lords
Judgment Date12 March 2008
Neutral Citation[2008] UKHL 15
Date12 March 2008

[2008] UKHL 15


Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Carswell

Lord Neuberger of Abbotsbury

R (on the application of Animal Defenders International)
Secretary of State for Culture, media and Sport


Michael Fordham QC

Shaheed Fatima

(Instructed by Bindman & Partners)


David Pannick QC

Martin Chamberlain

(Instructed by Treasury Solicitors)


My Lords,


In these proceedings the appellant, Animal Defenders International, seeks a declaration under section 4 of the Human Rights Act 1998 that section 321(2) of the Communications Act 2003 is incompatible with article 10 of the European Convention on Human Rights as given effect in this country by the 1998 Act. The section is said to be incompatible as imposing an unjustified restraint on the right to freedom of political expression. The Queen's Bench Divisional Court (Auld LJ and Ouseley J) refused to make a declaration of incompatibility ( [2006] EWHC 3069 (Admin), [2007] EMLR 158) but granted a leapfrog certificate under section 12(1) of the Administration of Justice Act 1969 and the House granted the appellant leave to appeal.


The appellant is a non-profit company whose aims include the suppression, by lawful means, of all forms of cruelty to animals, the alleviation of suffering and the conservation and protection of animals and their environment. It campaigns against the use of animals in commerce, science and leisure, seeking to achieve changes in law and public policy and to influence public and parliamentary opinion towards that end. Because of its campaigning objectives it is not eligible for registration as a charity.


In 2005 the appellant launched a campaign entitled "My Mate's a Primate" with the object of directing public attention towards the use of primates by humans and the threat presented by such use to the survival of primates. The campaign was to include newspaper advertising, direct mailshots, and also an advertisement on television.


The appellant's advertising agents prepared an advertisement which they submitted to the Broadcast Advertising Clearance Centre ("BACC"), an informal body funded by commercial broadcasters to monitor proposed advertisements for compliance with the governing law and current codes of practice. On 5 April 2005 BACC declined to clear the advert on the ground that its transmission would breach the prohibition on political advertising in section 321(2) of the 2003 Act, the appellant being a body with mainly political objects as defined by the Act. This decision was confirmed by BACC on 6 May 2005. No objection has ever been raised to the content of the advertisement, which was entirely inoffensive but consistent with the aims of the appellant. The appellant issued its application for judicial review on 4 August 2005. It is accepted that the Secretary of State for Culture, Media and Sport, as the minister with overall responsibility for broadcasting, is the appropriate respondent.

Statutory control of broadcasting


Until enactment of the Television Act 1954, radio and television broadcasts in the United Kingdom were transmitted by the British Broadcasting Corporation, a body committed to a high ideal of public service broadcasting. Then, as now, the BBC broadcast no paid advertising. The 1954 Act opened the market to independent broadcasters dependent for their finance on advertising revenue. The Independent Television Authority was established to provide or arrange for the provision of programmes, and it was the duty of the Authority under section 3 to satisfy itself that, so far as possible, the programmes maintained a proper balance in their subject matter and a high general standard of quality, presented the news (in whatever form) with due accuracy and impartiality, preserved due impartiality on the part of the persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy and, lastly, included no matter designed to serve the interests of any political party; but this last provision was subject to the qualification that it should not prevent the inclusion in programmes of relays of the whole (but not some only) of a series of BBC party political broadcasts, or the including in programmes of properly balanced discussions or debates where the persons taking part expressed opinions and put forward arguments of a political character. The Authority was obliged by section 4 to secure that the rules in the Second Schedule to the Act were complied with in relation to any advertisements, and one of these rules was that

"No advertisement shall be permitted which is inserted by or on behalf of any body the objects whereof are wholly or mainly of a religious or political nature, and no advertisement shall be permitted which is directed towards any religious or political end or has any relation to any industrial dispute."


It is unnecessary to refer to the series of statutes pertaining to wireless telegraphy and broadcasting enacted over the succeeding half century, save to observe that the principles summarised above were consistently preserved and given effect: see R v Radio Authority, Ex p Bull [1996] QB 169, [1998] QB 294. The 2003 Act is a very comprehensive measure, running to over 400 sections and 19 schedules. Chapter 4 of Part 3 contains regulatory provisions and sections 319-328 are directed to programme and fairness standards for television and radio. By section 319 the Office of Communications ("OFCOM"), a supervisory body established by section 1 of the Act, is required to set standards to achieve a number of objectives, among them that news is reported with due impartiality and accuracy and, in subsection (2)(g), that advertising which contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services. Section 320 requires that programmes should, within a given programme or over a number of programmes taken as a whole or a series, preserve due impartiality in relation to matters of political or industrial controversy and matters relating to current public policy. Section 321(2) is central to this appeal. It provides:

"(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."

Thus an advertisement may fall foul of the prohibition in section 319(2)(g) either because of the character of the advertiser or because of the content and character of the advertisement. Section 321 continues in (3):

"(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."

An exception is provided in subsection (7) for advertisements of a public service nature inserted by government departments and party political or referendum campaign broadcasts covered by later provisions of the Act.


In enacting the 2003 Act, Parliament paid close attention to the important decision of the European Court of Human Rights in VgT Verein gegen Tierfabriken v Switzerland (2001) 34 EHRR 159, a decision given on 28 June 2001, to which it is now necessary to turn.



In VgT the court found a violation of article 10 of the European Convention, which so far as material to this case provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the … rights of others …"


The facts in VgT were very similar to those in the present case. The applicant was an association dedicated to the protection of animals, with particular emphasis on animal experiments and industrial animal production. In reaction to television commercials broadcast by the meat industry it prepared a TV advertisement contrasting the behaviour of pigs in their natural environment with their treatment in the course of industrial production. The theme of the advert was "eat less meat, for the sake of your health, the animals, and the environment" and the content of the advert was not...

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