CASE OF ANIMAL DEFENDERS INTERNATIONAL v. THE UNITED KINGDOM

No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Kristina Pardalos;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant NGO 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 to that end .

In DATE the applicant began a campaign called ‘ My Mate ’s a GPE which was directed against the keeping and exhibition of primates and their use in television advertising . As part of the campaign , the applicant wished to broadcast a CARDINAL-second television advertisement . The proposed advertisement opened with an image of an animal ’s cage in which a girl in chains gradually emerged from the shadows . The screen then went blank and CARDINAL messages were relayed in sequence : “ A chimp has the mental DATE ” ; “ Although we share PERCENT of our genetic make - up they are still caged and abused to entertain us ” ; and “ To find out more , and how you can help us to stop it , please order your CARDINAL educational information pack ” . In the final shot , a chimpanzee was in the same position as that of the girl .

The proposed advertisement was submitted to ORG ( “ the ORG ” ) for a review of its compliance with relevant laws and codes . On DATE the ORG declined to clear the advertisement . The objectives of the applicant were “ wholly or mainly of a political nature ” so that section CARDINAL ) of LAW DATE ( “ the DATE LAW ) prohibited the broadcasting of the advertisement . This decision was confirmed on DATE . The advertisement could and can be viewed on the internet .

On DATE the applicant issued proceedings seeking a declaration of incompatibility under LAW DATE ( “ the ORG ” ) arguing that the prohibition on political advertising on television and radio imposed by LAW was incompatible with LAW . The only contested issue was whether the prohibition could be considered “ necessary in a NORP society ” .

An affidavit from the Director General of ORG , Media and ORG ( “ ORG ” ) dated DATE was submitted on behalf of the ORG . It detailed how impartiality was a fundamental feature of the regulatory regime applicable to broadcasting and why it was considered that political advertising was incompatible with impartiality . It explained that a less restrictive prohibition was impracticable by describing the review process which began in DATE ( see paragraphs DATE below ) noting that the relevant bodies consulted had supported the prohibition and it considered this answered the applicant ’s arguments . Controls on broadcast media were justified given the unique nature of the medium and since there were other media available to the applicant . The affidavit referred to other GPE with similar provisions ( GPE , GPE , GPE and GPE ) , concluding that , in countries which had allowed paid political advertising , there remained “ significant practical problems ” in running such a system particularly in being able to guarantee equal access to all parties where the political landscape was characterised by multiple parties , where parties / broadcasters circumvented rules on time / funding limits on paid political advertising and where there was confusion over what constituted “ political ” advertising .

On DATE ORG and PERSON ) dismissed the applicant ’s claim . Both judges considered the prohibition to have been widely defined . PERSON observed that it covered “ a continuum of political activity and intensity from party political activity at election time to the pursuit by non - political bodies at any time of particular interests of public concern ” . While political expression was a highly prized form of expression , both found the interference justified .

Both judges rejected reliance on ORG gegen PERSON v. GPE ( no . CARDINAL , ORG CARDINALVI ) which they found turned on its facts . ORG found LAW to have had a number of ameliorating features not present in the scheme at issue in ORG , including a relaxation of controls on the timing and content of political and election broadcasts . They relied on the criticisms of the PERSON judgment in R ( ProLife Alliance ) v ORG ( [ DATE ] ORG CARDINAL ) , PERSON finding that it was not possible to discern the basis of the PERSON judgment . Both judges doubted the relevance of PERSON v. GPE ( no . CARDINAL , ORG CARDINALIX ( extracts ) ) : it did not concern political advertising and they were not convinced by the observation therein that the margin of appreciation for restrictions on political advertising might be narrower than those on religious advertising .

Both judges underlined the caution to be exercised by the courts as regards ORG ’s policy and legislative choices . ORG reiterated that :

“ ... in such matters of social and political judgment , the executive and legislative authorities - particularly the latter - of a Contracting State may normally be expected to have a better or surer grasp of its democratic needs and their practicalities than ORG or its own courts . Therein lies the notion of deference which , under one name or another , still stands as a caution to our courts against interfering too readily with the ORG ’s policies or ORG ’s legislative schemes in implementation of them . Such caution is an agent for broadening rather than narrowing the margin of appreciation / ambit of discretionary judgement of a ORG in this context , just as it may be in the context of other important and sensitive issues peculiar to a ORG traditions , to which its authorities DATE like those of GPE in PERSON – are peculiarly alive and well qualified to assess .

Here , ORG has chosen to introduce a prohibition on political advertising confined to the broadcast media because of its perceived greater power than that of other media and , consequently , greater potential for distortion by wealthy interests of the democratic process . It may be that it could have gone about it in a different way , but is the court to be the judge of that , faced as it is with wide and highly authoritative support for the Parliamentary scheme ? ”

ORG was to later conclude that ORG had acted within the ambit of the discretionary judgment available to it .

PERSON stated that ORG was not reliant solely on the evidence before it since the “ experience , expertise and judgment of ORG expressed in the legislation can demonstrate the necessary justification ” . As to the justification for the prohibition , he stated :

“ There are competing interests at stake here which a legislature is entitled and obliged to balance , taking account of the way in which it can anticipate that groups and parties would use the greater access to the broadcast media which the Claimant seeks for itself and others . ...

In this regard , it is clear that ORG has expressed a considered view , having grappled with the human rights implications of sCARDINAL . I give great weight to its view thus expressed as evidencing the need for this restriction . This is not an executive act , not secondary legislation but primary legislation which was passed without member dissent by ORG . It was aware of the opposition on human rights grounds of Professor PERSON , and of the reservations , based on ORG , expressed by ORG .

I also give ORG ’s considered view great weight because of the subject matter . The impact of broadcasting on the topics , framework and intensity of political debate is CARDINAL which few would be better placed to assess than those who deal on a DATE basis with constituents and interest groups , whether to enlist , respond to or resist their influence . They would be well placed to know what manner of groups there were or might be who would take advantage of degrees of alteration to the present ban . It is not contestable that ORG , through its MPs and politically active peers , is far better placed to reach a judgment on those matters than judges . This is not an area which more readily falls into the sphere in which judges are more experienced and expert . This is the more true of non - national judges .

I see these factors as giving substantial evidential weight to the view of a democratically elected body in deciding what restriction was shown to be necessary in the public interest . In substance , another way of putting that is to say that the subject matter warrants a considerable discretionary area of judgment being accorded to ORG .

No doubt ORG could have devised a form of words which would present a solution of sorts to any problem as to where a line was drawn as between types [ of ] advertiser or advertisement . However , the complexities and inevitable arbitrariness of any solution , such as it might be called , are proper matters for ORG to consider in deciding that a complete ban on broadcasting advertisements is the only practicable and fair answer . ”

Whether ORG ’s enactment of the prohibition was evidence for its necessity in an area of ORG ’s expertise or as a judgment in an area where a wider margin of discretion should be accorded to it , PERSON considered that ORG ’s decision should be respected by the courts .

Having noted the lack of a relevant NORP consensus , ORG remarked that the experts’ reports submitted had been of little assistance , had been produced by the ORG as a matter of disclosure only and had not been relied upon by the ORG . PERSON noted that ORG had been provided with some , but not comprehensive , material about how some other ORG and commonwealth GPE had dealt with the issue . It was not of any great use save to demonstrate that there was a general consensus that electoral periods justified advertising prohibitions and that there was no clear consensus as to whether the present prohibition was necessary outside of an electoral period . Various states had decided what restrictions were necessary given their particular political sensitivities and broadcasting systems . The absence of consensus might have reflected those differing conditions which were properly part of a legislature ’s judgment as to whether or not this degree of prohibition was necessary in its democratic society .

Both Auld LJ and PERSON emphasised the rationale for the prohibition : to preserve the integrity of the democratic process by ensuring that the broadcast media were not distorted by wealthy interests in favour of a certain political agenda . PERSON characterised the prohibition as a restriction aimed at supporting the democratic process rather than CARDINAL with a specific content objection . Both judges considered it legitimate to single out the broadcast media as its impact was potentially more powerful : PERSON finding that it was not a matter of serious debate that the broadcast media was more pervasive and potent than any other media form . As to the debate about whether television was more expensive than other media , PERSON considered it sufficient to accept that broadcasted advertisements had an advantage of which advertisers and broadcasters were aware and for which the former would pay large sums of money far beyond the reach of regular groups who would wish to participate in the public debate .

Finally , both judges rejected the argument that the prohibition was disproportionate as it applied outside electoral periods and to groups such as the applicant who were not associated with party politics or electoral campaigns . ORG emphasised that it would not be “ a principled or logical distinction ” to limit the prohibition to electoral periods . Both judges considered that political advertising in the broadcast media outside such periods was likely to have an equally obvious influence on the democratic process . In this respect , PERSON noted that the broadcast media were ever - present , that contentious democratic issues could arise at any time and that purchased influence could affect the promotion of legislation , the decision to hold an election or its ultimate outcome . Both judges also considered that it was impracticable , arbitrary and potentially unfair to attempt to draw a line between party political matters and other matters of public importance : the distortion of the political debate could take many forms and could embrace a vast range of matters of public interest and certain issues would be difficult to categorise . There was also a risk that such a distinction might allow political parties to “ contract out ” their political advertising to “ splinter or supporter groups ” which would be free from restriction .

As a result , ORG refused a declaration of incompatibility .

On DATE ORG ( Lord PERSON , Lord PERSON , ORG , Lord PERSON and Lord PERSON ) unanimously dismissed the applicant ’s appeal .

Lord PERSON gave the lead judgment . He recognised that , since the prohibition interfered with political expression , the standard of justification imposed on the State was “ high ” and the margin of appreciation was correspondingly small . The objective of the prohibition was as follows :

“ CARDINAL . 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 . ”

The objective was not 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 . ”

Lord PERSON did not think that the full strength of this argument had been deployed in the above - cited PERSON judgment .

He considered that a blanket prohibition was necessary to avoid the risk of advertisements by organisations with objectionable goals and he observed that this option had been discounted in ORG but recognised in the above - cited PERSON judgment . That the prohibition was confined to the broadcast media only was , as PERSON had found , explained by the particular pervasiveness and potency of television and radio , a factor recognised by this ORG in GPE v. GPE ( DATE , § DATE , Series A no . CARDINAL ) and in PERSON although he noted that the PERSON judgment appeared to discount the point .

As to whether a less restrictive prohibition ( regulated by time , frequency , expenditure or by the nature and quality of advertisements ) would avoid the mischief sought to be avoided , Lord PERSON considered it unnecessary to explore this option in detail because , inter alia , any less restrictive system could be circumvented by the formation of small groups pursuing very similar political objects ; it would be difficult to apply objectively and coherently ; and it would be even more difficult for broadcasters to fulfil their duty of impartiality . While the ORG had requested a compromise solution , the Government had judged that no fair and workable compromise solution could be found which would address the problem , “ a judgment which ORG accepted . I see no reason to challenge that judgment ” . ORG ’s judgment was to be given “ great weight ” for CARDINAL reasons . In the first place , it was reasonable to expect that democratically - elected politicians would be “ peculiarly sensitive ” to the measures necessary to safeguard the integrity of democracy . Secondly , while ORG considered that the prohibition might “ possibly although improbably ” infringe LAW , ORG had resolved to proceed because of the importance it attached to the prohibition and its judgment which should not be “ lightly overridden ” . Thirdly , legislation could not be framed to address particular cases but had to lay down general rules and ORG would decide where the line would be . While that inevitably meant that hard cases would fall on the wrong side of the line , “ that should not be held to invalidate the rule if , judged in the round , it is beneficial . ”

The fact that other means of communication were available to the applicant was a “ factor of some weight ” and this was to be contrasted with ORG ( DATE , Reports CARDINALI ) where the impugned provision was found to amount to be a total barrier to the applicant ’s communication of her views .

Finally , Lord PERSON observed that there was no clear consensus among member GPE on how to legislate for the broadcasting of political advertisements . ORG had widened the margin of appreciation in such instances and suggested that it might be that each ORG was best fitted to judge the checks and balances necessary to safeguard , consistently with LAW , the integrity of its own democracy . He dismissed the appeal , agreeing with PERSON and , in the main , with ORG . He did not accept Lord PERSON ’s view that the domestic courts could differ from this Court in interpreting Convention rights since the former should , in the absence of special circumstances , follow any clear and constant case - law of this Court .

Lord PERSON agreed with Lord PERSON , adding CARDINAL comments .

In the first place , the prohibition could give rise to further LAW claims given its “ remarkable ” width : it could withhold from the applicant the ability to place advertisements for broadcasting with no political content or with an entirely neutral content and prevent the applicant from ‘ countering’ ... in a manner that is incompatible with that right ” and hypothetical examples of ways in which the legislative provision might be incompatible with a Convention right did not suffice . The conclusion was that the prohibition was not incompatible with the applicant ’s LAW rights .

Secondly , it was not possible to assume from the PERSON judgment that the ORG would disagree with ORG in the present case . ORG in PERSON did not distinguish or qualify its reasoning in PERSON and this ORG ’s judgments focused closely on the particular facts of each case . There was no more than the possibility of a divergence between the finding of ORG and of this Court .

Baroness PERSON began her judgment by pointing out that there had been “ an elephant in the room ” when the case was heard and it was the dominance of advertising , not only in elections but also in the formation of political opinion , in GPE . She underlined the enormous amounts spent , and which have to be raised , for elections in GPE . There was no limit in GPE to the amount that pressure groups could spend on getting their message across in the most powerful and pervasive media available .

She went on to describe the rationale of the prohibition as ensuring that Government and its policies were not decided by the highest spenders :

“ Our democracy is based upon CARDINAL person one vote . It is based on the view that each person has equal value . ... We want everyone to be able to make up their own minds on the important issues of DATE . For this we need the free exchange of information and ideas . We have to accept that some people have greater resources than others with which to put their views across . But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring .

So this case is not just about permissible restrictions on freedom of expression . It is about striking the right balance between the CARDINAL most important components of a democracy : freedom of expression and voter equality . ”

Baroness PERSON held , in full agreement with the reasons given by Lord PERSON , that the prohibition as it operated in the case was not incompatible with the applicant ’s LAW rights . On the contrary , it was :

“ CARDINAL . ... a balanced and proportionate response to the problem : they can seek to put their case across in any other way , but not the one which so greatly risks distorting the public debate in favour of the rich . There has to be the same rule for the same kind of advertising , whatever the cause for which it campaigns and whatever the resources of the campaigners . We must not distinguish between causes of which we approve and causes of which we disapprove . Nor in practice can we distinguish between small organisations which have to fight for MONEY and rich ones with access to massive sums . Capping or rationing will not work ... ”

She doubted the application of the ORG ’s judgment in the PERSON case since , like all of this ORG ’s judgments , it was fact specific :

“ DATE . ... Similar though the organisations were , the advertisements were rather different : “ eat less meat ” is a different message from “ help us to stop their suffering ” . Important arguments which were given less weight in PERSON were accepted in PERSON . If anything , the need to strike a fair balance between the competing interests is stronger in the political than in the religious context . Important though political speech is , the political rights of others are equally important in a democracy . The issue is whether the ban , as it applies to these facts , was proportionate to the legitimate aim of protecting the democratic rights of others . As Lord PERSON has demonstrated , Government and ORG have recently examined with some care whether a more limited ban could be made to work and have concluded that it could not . The solution chosen has all - party support . Parliamentarians of all political persuasions take the view that the ban is necessary in this NORP society . Any court would be slow indeed to take a different view on a question such as this . There may be room for argument at the very margins of the rule , for example , in banning any advertisement of any kind by a political body , or in banning any advertisement by anyone of matters of public controversy . But that is not this case . ”

Finally , ORG agreed with Lord PERSON ( disagreeing with Lord PERSON ) that the correct interpretation of the incorporated Convention rights lay ultimately with this ORG . The domestic courts should adopt a “ cautious approach ” where they must not “ leap ahead ” of the ORG ’s interpretations but “ keep pace with the GPE jurisprudence as it develops over time , no more and no less ” .

Both Lord PERSON and Lord PERSON dismissed the appeal for the reasons given by Lord PERSON .

The ORG came into force in GPE , GPE and GPE on DATE . Section CARDINAL allows courts to issue a declaration of incompatibility where it is impossible to interpret primary or subordinate legislation compatibly with the Convention . Section CARDINAL of the ORG is entitled “ Statements of compatibility ” and provides that :

“ ( CARDINAL ) A Minister ... in charge of a LAW in either ORG of ORG must , before Second Reading of the PERSON :

( a ) make a statement to the effect that in his view the provisions of the PERSON are compatible with the LAW rights ( “ a statement of compatibility ” ) ; or

( b ) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the ORG to proceed with the PERSON .

( CARDINAL ) The statement must be in writing and be published in such manner as the Minister making it considers appropriate . ”

Prior to LAW , the ORG was the only radio and television broadcaster in GPE and never broadcasted paid advertising . LAW opened the market to commercial broadcasters , reliant on advertising revenue for finance , and it established a regulatory body ( ORG , “ FAC ” ) to enforce , inter alia , a prohibition on paid political advertising introduced by LAW :

“ 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 . ”

Subsequent legislation has preserved this prohibition .

ORG was set up by the Government to consider the broader issue of political party funding . Having visited GPE , GPE , GPE , GPE and GPE , in DATE it presented its ORG to the Government . In LAW of the ORG , ORG recommended that the prohibition on political advertising on television and radio should be maintained , describing its benefits as follows :

“ CARDINAL.CARDINAL Preventing the political parties and other politically motivated organisations from buying time on television and radio has the effect of restricting the total amount of money they can spend and also , thereby , of limiting the amounts of money they have to raise . These effects are almost universally agreed to be beneficial . Election campaigns in GPE are cheaper than in many other countries . During election campaigns , television viewers and radio listeners are not subjected to a continuous barrage of party political propaganda ( much of which , if it were permitted here , would undoubtedly be negative ) . The parties’ dependence on wealthy donors is reduced . Political leaders are not forced to spend enormous amounts of time and energy raising money to fund television and radio campaigns . Not least of the benefits is the fact that the broadcasters provide the parties with free air - time . This means that all the major political parties , and not just the richest ones , are given an opportunity to state their views . Almost all those who have observed election campaigns in GPE regard these aspects of the GPE system as superior . We believe that the present arrangements have served this country well and should remain in place . ”

ORG considered that the restriction on freedom of expression resulting from the prohibition was potentially justifiable . It concluded that :

“ CARDINAL ... it is perfectly proper for the Government to continue to proceed on the basis that the ban on political advertising on television and radio is legally defensible . We refer in particular to the ORG ’s argument [ in the X and ORG v. GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , ORG CARDINAL , p. CARDINAL ] ... justifying the outright ban on the basis of protecting the democratic right of GPE citizens not to be subjected to a barrage of political propaganda at prime advertising time from the party with the richest backers . If a court were in the future to rule to the contrary , this would potentially have a dramatic effect on the funding of the political parties . If free to do so , the parties would almost certainly feel obliged to make use of the opportunity to advertise themselves ( or attack their opponents ) on television and radio . In GPE a high percentage of the expenditure by the political parties at election times is devoted to television advertising . It is the pressure to advertise , as much as any other factor , which generates the demand for money and hence the arms race between NORP and NORP ... ”

ORG went further suggesting that , if anything , the legislation should be reconsidered to ensure that it was sufficiently wide :

“ CARDINAL Another possible future danger , to which reference was made in some of the evidence , is that as advances in technology bring in their train new and varied means of disseminating information ( cablevision , multi - channel digital television , the Internet etc . ) novel methods may be devised in an attempt to circumvent the current legal restrictions on political advertising . Vigilance will be required to prevent this happening . Existing legislation should be reviewed to ensure that its reach is sufficiently wide . ”

NORP In DATE the Government began a comprehensive review of broadcasting regulation and engaged in consultation on , inter alia , less restrictive measures than the current prohibition on political advertising . In DATE the Government responded to ORG proposing legislation including maintaining the prohibition on political advertising :

“ CARDINAL.CARDINAL The ban on paid political advertising on television and radio has been a major factor in limiting the amount of money political parties can spend on election campaigning and therefore on the amount they have to raise . As a result , the ban is supported across the political spectrum and the Government strongly endorses ORG recommendation that it should be maintained . ”

In DATE the Government published a Communications White Paper proposing a Communications Bill to implement new controls on the broadcasting media in GPE and GPE including the maintenance of the prohibition on political advertising . During the resulting consultation period the ORG delivered its judgment in PERSON gegen Tierfabriken v. GPE ( no . CARDINAL , ORG CARDINALVI ) .

Following that consultation period , in DATE the Government published the DATE PERSON , thereby opening a DATE consultation period . Programme services were not to contain any political advertising whether it was an advertisement inserted by or on behalf of a body which was political in nature or an advertisement directed to a political end . Documents published with DATE PERSON included Explanatory Notes ( which considered the PERSON judgment , noting that it had thrown some doubt on whether the prohibition was Convention compatible ) and a Policy document outlining proposals in the PERSON and related policy decisions and expressing the view , inter alia , that the PERSON reflected a proper balance of freedom of expression and the need to protect against certain types of broadcasted material .

The Joint Committee on Human Rights ( “ the ORG ” , a standing parliamentary committee tasked with examining the human rights implications of draft legislation ) considered the DATE PERSON and , in doing so in DATE , took evidence from Professor PERSON who was the ORG Professor of ORG ( DATE ) , the first chair in media law in GPE . In response to a question about whether there were restrictions that could be imposed on political advertising which could be compatible with LAW , Professor PERSON stated that he agreed with the result of the PERSON case . To disallow a charity with a political programme ( such as ORG ) which could afford to pay for a short commercial seemed to him to be a “ monstrous and unjustifiable infringement of freedom of expression ” . It made no sense to him to allow commercial advertisements for automobiles and products associated with driving but not to allow groups to broadcast advertising of the opposite case . He was not advocating unrestricted access but rather the adoption of rules to limit the number of spots which could be purchased . He considered that the distortion of the political debate could be “ avoided by imposing financial limits , just as we now have with regard to the financing and expenditure of political parties ” .

On DATE the ORG published a report on DATE PERSON , including on the prohibition of political advertising . The ORG acknowledged that the prohibition could well be found incompatible with LAW having regard to VgT. However , it urged caution in reversing the prohibition given the important rationale of the prohibition and the difficulty of devising a more circumscribed solution . Having noted the approach of ORG and the differing freedom of expression traditions in GPE and GPE , the ORG preferred the NORP approach in that it gave “ appropriate weight to the legitimate objective of securing equality of opportunity for political expression , at any rate in the broadcast media ” which tradition justified the prohibition . The ORG continued :

“ DATE . ... there are wider considerations which we believe urge the utmost caution in moving from the current statutory position in the GPE ( where television and radio access to those seeking to advance political causes is restricted almost entirely to the highly regulated system of party political broadcasts ) . These wider considerations include the fear of the annexation of the democratic process by the rich and powerful , to which the ORG alluded in its judgment in PERSON ... The risks of this will be intensified where it proves impossible to prevent concentration of cross - media ownership in CARDINAL country . We are also conscious that the compromise hinted at by ORG more circumscribed ban applied more discriminatingly - presents a formidable challenge to put in statutory form . In particular , it is difficult to conceive of how to devise ways of allocating air time or capping expenditure in relation to a “ political viewpoint ” ( as opposed to a political party , however that might be defined in statute ) ... ”

While the ORG doubted the general applicability of the above - cited judgment in the PERSON case and saw some merit in waiting for the jurisprudence in this area to mature further before deciding on the appropriate legislative response , it nevertheless considered that a total prohibition on political advertising on radio and television was likely to be held to be incompatible with LAW , as the Government had itself recognised in the Explanatory Notes to DATE PERSON . The ORG recommended that the Government “ examine ways in which workable and Convention - compatible restrictions of this kind could be included in the Bill ” .

The Joint Committee on the Draft Communications Bill ( “ the LOC ” ) was a parliamentary body set up to consider the Bill . Its report of DATE supported the principles underlying the proposed prohibition :

“ CARDINAL . ... The Government ’s view is that there are strong grounds for re - enacting the long - standing ban on political advertising in the broadcast media , but it acknowledges that a recent decision of ORG has cast doubt on the compatibility of that ban with the Convention . Professor PERSON argued that a blanket ban on political advertising was not compatible with human rights and suggested that the aim could best be secured by limits on expenditure on political advertising . ORG has argued that a ban on the purchase of advertising time for political purposes is likely to be compatible with Convention rights . We support the principles underlying the proposed ban on political advertising ... and urge the Government to give careful consideration to methods of carrying forward that ban in ways which are not susceptible to challenge as being incompatible with Convention rights . ”

ORG ( “ the ORG ” ) had overall responsibility for commercial television at the time . On DATE the ORG invited the Government to maintain the prohibition :

“ The ORG shares the ORG ’s principled objections to political advertising and hopes that the ban , which has been effective , will be retained . Our own assessment is that an ORG / broadcaster - administered scheme to ‘ control’ political advertising based around tests of due impartiality and undue prominence would , fairly swiftly , collapse on the grounds of unworkability in practice ... Once the absolute bar is removed , the broadcasters ... would at the very least be open to challenge if they refused to accept political adverts . We are then on a slippery slope ... banning named political parties is fairly ineffectual where ... it is not difficult to create front organisations . The same will be true of many other emotive single issues , such as right to life . The GPE decision in the NORP case provided no clear guidance as to when a political advertisement may be subject to prohibition . So there must be at least a risk that any ‘ halfway house’ would – in addition to being ineffective DATE still be held to be incompatible . ”

On DATE the Government introduced DATE PERSON to ORG with the prohibition on political advertising intact . The Minister introducing the PERSON made a statement under section CARDINAL(CARDINAL)(b ) HRA DATE :

“ I am unable ( but only because of [ the prohibition on political advertising ] ) to make a statement that , in my view , the provisions of the [ DATE PERSON ] are compatible with the Convention rights . However , the Government nevertheless wishes the ORG to proceed with the Bill ” .

This was the only time since the enactment of the ORG that the ORG had adopted such a procedure : it did not mean that the ORG considered the DATE PERSON incompatible but rather that it could not clearly state that it was compatible given the PERSON judgment .

On DATE the Secretary of ORG for ORG , Media and ORG ( “ ORG ” ) published a Department Memorandum in response to the report of the ORG of DATE :

“ ... the Government is aware that the case of [ PERSON ] casts doubt on whether the ban on political advertising ( which the PERSON would re - enact ) is compatible with the ORG . We note the ORG ’s view that the legitimate objective of securing equality of opportunity for political expression in the broadcast media justifies restrictions on political advertising , and that the utmost caution should be exercised in changing the present statutory position ....

With the ORG ’s observations in mind , the ORG has followed the ORG ’s recommendation to examine ways in which workable and Convention - compatible restrictions could be included in the PERSON . We have in particular considered an alternative regime based on specific prohibitions , such as banning all party political advertising , and all political advertising of any kind around the time of elections or referenda , coupled with other rules to avoid the predominance of any particular point of view , to provide visual or audible identification of political advertisements , and to control the scale of political advertising in terms both of broadcasting time and the proportion of advertising revenue that a broadcaster is permitted to derive from political advertising . We have concluded that it would be very difficult to make such a scheme workable , and that in any event it would fall significantly short of the present outright ban and allow a substantial degree of political advertising to be broadcast . ”

On DATE the Secretary of ORG for the ORG explained to ORG why a compatibility statement had not been possible :

“ Although there will of course be an opportunity for this matter to be debated fully in ORG , I wanted to explain the position to the whole ORG . The decision to proceed with a PERSON containing a provision of this kind was obviously exceptional , and was made only after careful deliberation and a full examination of both the legal arguments and the policy alternatives .

For DATE , successive Governments have maintained a complete ban on advertising of a political nature on television or radio . The Government ’s intention in this case is to continue with the current ban — a ban that was supported by the PERSON committee in its DATE report on funding of political parties — and to define more precisely what is meant by “ political ” , so that ORG may continue to use the broad reading of the word that existing regulators use . ...

However , a potential complication exists in the form of [ the PERSON judgment ] which [ concerned ] an apparently similar ban . That point was also noted by the [ ORG ] . In response to the ORG ’s judgment and to the [ ORG ’s ] concerns , we looked hard at the current ban to see whether some minor changes would make it more certain that it was human rights compatible . Unfortunately , any such change would still allow substantial political advertising , and I hope that there is cross - party agreement that that would not be a desirable outcome . By denying powerful interests the chance to skew political debate , the current ban safeguards the public and democratic debate , and protects the impartiality of broadcasters .

Having examined all the facts , and following extensive legal advice , I have concluded that very strong arguments could be advanced in favour of the ban contained in this PERSON being compliant with the ORG . ...

The Government apply testing standards to the consideration of the compatibility of their legislation with the convention and , given the existence of [ VgT ] , I must ask the ORG to consider this PERSON with a section CARDINAL(CARDINAL)(b ) of LAW DATE statement attached to it . That does not mean that we believe the PERSON to be incompatible with the ORG , and we would mount a robust defence if it were legally challenged . Of course , if that defence subsequently failed before the domestic courts , we would need to reconsider our position . Beyond that , we take our international obligations extremely seriously and we would seek to amend the ban in accordance with any judgment of ORG in GPE that ruled against the GPE legislation . As things stand , however , the Government believe that it is right to ask the ORG to continue the ban on political advertising . ”

On DATE the Secretary of ORG of the ORG responded to an MP ’s query as to the Convention compatibility of the prohibition enclosing a detailed ORG “ Explanatory Note ” setting out the ORG ’s reasons for maintaining the prohibition . The ORG Explanatory note recorded that , while the PERSON case had called into question whether the prohibition was compatible with the LAW , the prohibition had enjoyed wide and cross - party support and was strongly supported by ORG . The pre - legislative scrutiny committee and the ORG supported the principles behind the prohibition and had urged the Government to examine ways of ensuring that it was Convention - compatible . The Government had taken appropriate advice . A more certainly Convention - compatible prohibition could only be achieved by a significant shift in the approach to the prohibition which would open the way “ at the very least to substantial advertising by lobby groups and issue campaigners ” . Moreover , there was a “ very strong case ” that the prohibition was ORG compatible which was why the Government asked ORG to proceed with the PERSON with the prohibition intact .

Alternatives to the prohibition had been examined in order to examine how the prohibition might be maintained in a Convention compliant manner :

“ In particular , consideration was given to an alternative regime based on specific prohibitions , such as banning all party political advertising and all political advertising around the time of elections or referendums ; coupled with other rules to avoid the predominance of any particular point of view on CARDINAL channel , to provide visual or audible identification of political advertisements , and to control the scale of political advertising in terms both of broadcasting time and the proportion of advertising revenue that a broadcaster is permitted to derive from political advertising .

The conclusion was reached , taking account of legal advice , that it would be very difficult to make such a scheme workable , and that in any event it would fall significantly short of the present outright ban , and allow a substantial degree of political advertising to be broadcast across a number of channels . ”

The DCMS Explanatory Note went on to outline advice the ORG had received from counsel as to the Convention compatibility of the prohibition despite the PERSON judgment :

“ CARDINAL . The Government sought Counsel ’s advice regarding the effect of the NORP case on the compatibility with LAW ban on political advertising contained in LAW DATE . Counsel advised that , but for the NORP case , there is a very strong case that it would be consistent with Article CARDINAL for domestic law to prohibit political advertising . He also expressed the view that the judgment of ORG in the NORP case was unconvincing and that there were strong arguments to justify a domestic court and ORG itself not following that decision in the present context .

The main points of ORG ’s advice in coming to this view related to the following factors :

( a ) the fundamental importance of maintaining impartiality in the broadcast media because of its reach , immediacy and influence ;

( b ) to allow advertising by political bodies , or advertisements of a political nature , would conflict with the principle of impartiality , allow powerful groups to buy influence by buying airtime , and deprive broadcasters of protection from political advertisers seeking to exert editorial influence over other programmes in the service ;

( c ) special treatment for broadcasting in this respect is supported by considerations of spectrum restrictions , the third sentence of LAW ) ( permitting broadcasting licensing ) and ORG ;

( d ) recent independent consideration has supported the ban : e.g. ORG and ORG ; ”

( e ) the criticism that the ban applies to political bodies rather than looking at the nature of each advertisement is unjustified , because any advertisement by such a body will tend to promote its interests ( if only by promoting name recognition or fundraising ) , because it would be inherently difficult and uncertain to say whether or not the content of a particular advertisement was " too political " , and because ( in the light of supporting factors ) ORG is acting within its discretionary area of judgment in focusing on the nature of the body , rather than the nature of the advertisement , to pursue its objective of impartiality .

Counsel ’s explanation as to why he found the reasoning in the NORP case to be unpersuasive , included the following points :

( a ) ORG " puzzling " conclusion that the concerns which the ban sought to address ( e.g. stopping powerful groups from having undue influence ) were not " pressing " in light of the fact that the ban did not cover other forms of media ;

( b ) the ORG accepted that a prohibition on political advertising could be permissible in certain circumstances , but Counsel pointed out that there is authority that general ( " bright line " ) rules can be justified , even if they can produce hard cases at the margins ;

( c ) the ORG gave insufficient weight to the fact that other forms of publicity ( e.g. newspapers , leaflets , hoardings ) were available . ”

On DATE the ORG wrote to the Government seeking a fuller explanation why the prohibition was being maintained . On DATE the ORG released a report regretting the Government ’s failure to explain why it had not included a less strict prohibition in the Bill . On DATE the Secretary of ORG of the ORG answered the ORG referring to the letter and the accompanying DCMS Explanatory Note sent in DATE to the MP ( paragraph CARDINAL above ) . On DATE the ORG responded that it was satisfied that the Government ’s course of action was legitimate . In particular , it noted ( Fourth Report of the Session DATE ) :

“ CARDINAL . In our First Report , we set out CARDINAL factors which we provisionally thought were relevant to an assessment by ORG of the propriety of proceeding to legislate in a way that would give rise to an acknowledged risk of incompatibility with a Convention right . Taking those matters into account , and in the light of the correspondence mentioned above , we are satisfied that—

- in any litigation about the ban on political advertising and sponsorship in the broadcast media under clause CARDINAL of the Bill , the Government would argue that the decision in [ PERSON ] should not be followed , or alternatively that the decision does not necessarily entail the incompatibility of clause CARDINAL with the right to freedom of expression under ECHR Article CARDINAL , and that such an argument would have a reasonable chance of success ;

- the Government would feel obliged to amend the law if that particular provision were held by the [ ORG ] , after argument , to be incompatible with LAW , and would consider its position if a court in GPE were to make a declaration of incompatibility under section CARDINAL of LAW DATE ; and

- in the meantime , pending the opportunity to advance before the courts its arguments relating to the compatibility of a ban with LAW has good reasons for believing that the policy reasons for maintaining the ban outweigh the reasons for restricting it , particularly as it would be difficult to produce a workable compromise solution . ”

On DATE ORG ( an independent body established by ORG to keep under review a range of electoral and political matters ) published a report entitled “ ORG and Recommendations ” . It considered the case for the prohibition to be persuasive . A principal concern was to avoid those with higher financial resources from hijacking the political agenda in that the electorate would receive information only from a very small number of well - financed ( large ) political parties . It would also be difficult for the broadcasters to maintain balance and impartiality . International comparisons did little to alleviate concerns regarding the impact of paid advertising , the ORG referring to experiences in GPE and to GPE where , despite reduced rates for advertising , only the largest parties had the resources for such advertising . Notwithstanding the PERSON judgment , the proposed prohibition could be justified under Article PERSON ) of the Convention ( pages CARDINAL of the Report ) :

“ ... it is to be noted that the [ VgT ] case was concerned with paid political advertising in general and not with political party advertising within a context where the ban on paid advertising operated alongside a regime of free broadcasts which are essentially unmediated by the broadcasters . Such a [ regime ] has not been the subject of a ruling either in GPE or by our own courts under LAW . ... [ it ] is undoubtedly a counterbalance to the ban on paid advertising . While it does not offset the ban in its entirety ... we nevertheless consider it to be a significant counterbalance because it applies principally at the time of elections .

It seems to us that the GPE system would survive scrutiny under the ORG and the ORG , at least if the regime of free and unmediated broadcasts is robust . ”

The PERSON judgment was considered by ORG in R ( ORG ) v ORG ( [ DATE ] ORG CARDINAL ) . Lord PERSON described the PERSON judgment as “ a guarded , if somewhat opaque , decision ” , although he noted that the ORG would not “ exclude that a prohibition of ‘ political advertising’ may be compatible with the requirements of LAW in certain situations ” . Lord PERSON commented that the PERSON judgment “ does not , with respect , give full or clear reasons for what seems to be a far - reaching conclusion ... The true significance of the PERSON case is therefore rather imponderable ” .

The DATE Act was enacted by ORG without member dissent . LAW replaced the existing regulators with a unified regulator for media , telecommunications and radio communications called ORG ( “ OFCOM ” ) . However , until DATE ORG ( “ ORG ” ) was responsible for pretransmission examination and clearance of advertisements proposed for broadcasting .

Section CARDINAL(CARDINAL ) requires the ORG to set and review standards to achieve certain fixed objectives listed in section CARDINAL ) which objectives include that news on television and radio is presented with due impartiality and that the impartiality requirements of section CARDINAL are complied with and , further , that advertising contravening the prohibition on political advertising is not included in television or radio services .

Section CARDINAL(CARDINAL ) contains that prohibition and provides that :

“ ( CARDINAL ) For the purposes of section CARDINAL(CARDINAL)(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 . ”

Section CARDINAL(CARDINAL ) defines objects of a “ political nature and political ends ” as including :

“ ( a ) influencing the outcome of elections or referendums , whether in GPE or elsewhere ;

( b ) bringing about changes of the law in the whole or a part of GPE 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 GPE or elsewhere ;

( d ) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of GPE or of a country or territory outside GPE ;

( 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 GPE , is a matter of public controversy ;

( g ) promoting the interests of a party or other group of persons organised , in GPE or elsewhere , for political ends . ”

Accordingly , the prohibition applies , not only to advertisements with a political content , but also to those bodies which are wholly or mainly of a political nature irrespective of the content of their advertisements .

Section CARDINAL(CARDINAL ) provides an exception for public service advertisements inserted by or on behalf of a government department and for party political and referendum campaign broadcasts of certain political parties ( paragraph CARDINAL below ) . The political parties on whose behalf such broadcasts may be made are determined by ORG and only those registered with ORG are eligible to be selected .

Political impartiality has been a core feature of the legislative regime governing broadcasting from the outset and is achieved by CARDINAL mechanisms . The first is the prohibition against paid political advertising .

The second is the statutory obligation of impartiality on all broadcasters . LAW is entitled “ Special Impartiality Requirements ” and subsections CARDINAL and CARDINAL provide as follows :

“ ( CARDINAL ) The requirements of this section are–

( a ) the exclusion , in the case of television and radio services ... from programmes included in any of those services of all expressions of the views or opinions of the person providing the service on any of the matters mentioned in subsection ( CARDINAL ) ;

( b ) the preservation , in the case of every television programme service , teletext service , national radio service and national digital sound programme service , of due impartiality , on the part of the person providing the service , as respects all of those matters ;

( c ) the prevention , in the case of every local radio service , local digital sound programme service or radio licensable content service , of the giving of undue prominence in the programmes included in the service to the views and opinions of particular persons or bodies on any of those matters .

( CARDINAL ) Those matters are–

( a ) matters of political or industrial controversy ; and

( b ) matters relating to current public policy . ”

The third mechanism is the provision of free party political , party election and party referendum campaign broadcasts by broadcasters , a mechanism which has been part of the regulatory landscape since broadcasting began . The first such broadcast on the radio was in DATE and on the television in DATE . Section CARDINAL of the DATE Act provides that licences for certain broadcasters must require the inclusion of free broadcasts and the observance of OFCOM Rules . Those Rules regulate party political broadcasts ( offered to the major parties at the time of key events in the political calendar ) ; party election broadcasts ( offered during electoral periods to each of the main parties and to smaller registered parties contesting CARDINAL or more of the seats up for election at a general election ) and referendum campaign broadcasts ( offered to each designated referendum organisation in the run - up to a referendum ) .

This survey was completed by the ORG of ORG on the basis of information received from MONEY / territories : GPE , GPE ( CARDINAL ) , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE ( CARDINAL ) , GPE , GPE , GPE , GPE , the former GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ( CARDINAL ) . It recommended caution in relying on a comparative review in this context . Given the lack of precise definitions in domestic laws and the great diversity of national traditions , there was likely to be confusion as to the meaning to be attributed to “ political ” , a notion that could include matters as diverse as party political broadcasting during electoral periods as well as public interest expression by a non - governmental organisation .

NORP In response to the question “ Is paid political advertising in broadcasting prohibited in your country ? ” , the Survey noted :

“ Countries with a ban on paid political advertising

Paid political advertising is statutorily forbidden in the vast majority of NORP countries such as GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , and the GPE . Several countries from central and LOC , such as GPE and GPE , also have a prohibition of paid political advertising .

The most traditional justification for this prohibition is that rich or well - established parties would be able to afford significantly more advertising time than new or minority parties – thus amounting to a discriminatory practice . Another rationale invoked for the restriction or the ban is that it may lead to divisiveness in society and give rise to public concern . It has also been suggested , albeit less frequently , that a prohibition would preserve the quality of political debate .

Countries allowing paid political advertising

Paid political advertising is allowed in many central and ORG countries such as GPE and GPE , GPE , GPE , GPE , [ the former GPE ] , GPE , and GPE : GPE , GPE and GPE . In a few countries such as in GPE ( DATE prior to DATE ) , and GPE , political advertising is only permitted during the election period .

It is often overlooked that several countries in LOC , such as in GPE , GPE , GPE ( for the moment , this will change shortly ) and the GPE also allow paid political advertising .

In GPE , until DATE paid political advertising , i.e. self - managed spaces , was allowed also for national broadcasters , provided that they also transmitted “ political communications spaces ” ... i.e. discussion programmes with the participation of political representatives ; now it is allowed only for local broadcasters and has to cost PERCENT of the price applied to commercial advertisements , whereas national broadcasters may only broadcast them for free .

In GPE , while there is a permanent and wide - ranging ban on the political advertisement of persons , paid political advertising of political parties is not prohibited .

In GPE , while the ban of political advertising applies permanently for television broadcasters , the NORP Electoral Code permits paid electoral advertising on commercial radio stations , only during the election period .

The main rationale for paid political advertising is that it may enable new candidates to obtain recognition and a profile . It is also often argued that the right to political advertising is an integral part of the right to freedom of expression and information . ”

As to the scope of the ban of political advertising , the Survey stated :

“ As a rule , political advertising does not exclusively relate to election time , or political parties or candidates . Advertising on other issues , which reflect important societal debates , such as animal rights , environmental issues , abortion etc . ( often referred to as political propaganda or issue advertising ) may be considered to pursue a political end or to be political in nature and may therefore be construed as political advertising .

Countries with a wide - reaching ban

This is for instance the case in GPE , GPE , GPE , GPE , GPE , GPE and the GPE . In GPE , the ban is applied to all advertising which can be said to be political in nature and to all groups which are political by design . In this sense it is applied in the broadest sense and not limited to election campaigns or voting for referenda exclusively . In GPE , the ban applies permanently and to political parties as well as other interest and societal groups .

On LOC , the term “ political ” is used in a wider sense than " party political " . The prohibition precludes , for example , issue campaigning for the purposes of influencing legislation or executive action by government or by local authorities .

In GPE , the ban applies to political parties and candidates , but also to any organization whose advertising messages would be directed towards a political end . Associations ( most interests and societal groups are constituted as such ) are not allowed to broadcast advertising spots . Associations with charitable aims may broadcast so - called “ messages d’intérêt general ” which should not include any political message .

In GPE , the ban applies permanently and does not specify the groups .

In GPE , the ban applies permanently except for such approved schemes of political broadcasts . Paragraph CARDINAL(f ) of the Third Schedule bans advertising of a political nature and this has always been taken to apply in its strict interpretation to the political parties . However , the ORG has also taken a wider interpretation and applied such a ban on advertising to other organisations such as trade unions etc . which pursue aims which could be qualified as political in the broad sense .

Countries with a more restricted scope of the ban

In GPE , as a consequence of the [ PERSON judgment ] ... certain forms of “ political ” advertising are now allowed . NGOs or societal groups may place advertising with a certain political content , but not before elections or in campaigns before plebiscites . However , the prohibition on advertising by political parties and candidates remains .

Similarly , in GPE - as a consequence to the above - mentioned ruling - the permanent ban on political advertising on television concerns advertising for political parties , political movements and political candidates as well as advertising for trade unions and religious movements . The ban is not considered to include political movements in a broader sense such as environmental and societal groups except when such groups are nominated for political bodies or assemblies .

In addition , NORP legislation does not allow advertisements with political messages to be broadcast during the time of election campaigns where a total ban is considered necessary to protect voters from inappropriate influencing and to ensure equal democratic rights of candidates regardless of economic means or funding . Political advertising and campaigning is not prohibited in other media such as radio broadcasting .

In GPE , the ban applies permanently and to all groups and parties that promote political ends . However , the ban will be interpreted in the light of LAW and the case law from ORG derived from said article .

In GPE , only broadcasts which are subject to conditions of impartiality can not include political advertising . DTT - licences , for the commercial channels , have as a rule not included such a condition and have therefore been free to broadcast political advertising . Until DATE this did however not apply to TVCARDINAL DTT - licences for their niche channels . The new licences for ORG ’s niche channels however , do not include a condition of impartiality , which means that they can broadcast political advertising .

In GPE , the term “ political ” is used in a very narrow sense ; other interest groups would fall under what are called " social " messages . All broadcasters may transmit messages with a social utility content ( this is not defined ) and can also be paid for , provided that the price does not exceed PERCENT of the cost of commercial advertisements . These messages ( paid for or not ) are not considered for the calculation of the hourly / DATE time limits and can not , altogether , last for TIME .

In some countries , the focus of the ban is on election and election time ( e.g. GPE ) or political parties and candidates ( e.g. GPE ... ) . Issue advertising is not mentioned . ”

DATE . Certain States allowed political advertising subject to restrictions and some States had no such restrictions at all :

“ Countries with restrictions on paid political advertising

Most of the countries which allow political advertising also foresee certain legal restrictions to avoid the discriminatory character of the practice . This includes limits on the duration and frequency ( e.g. [ the former GPE ] , GPE ) , scheduling ( e.g. [ the former GPE ] : not during news , children programmes ) limits on the charges for such ads ( e.g. GPE where the price lists must be submitted to the regulator for review DATE prior to the elections period ) , or on maximum election expenditure that is permitted by the law ( GPE , GPE where during GPE ( ORG ) and ORG elections , a party may spend no more than CARDINAL,CARDINAL ORG ( CARDINAL EUR ) x the number of voters in the previous elections ) , labelling / identification requirements ( e.g. GPE , [ the former GPE ] : paid political advertising should be properly and visibly labelled , from the commencement to the end of the programme , as " paid political advertising ” ) . In GPE , broadcasters must provide all parties with equal conditions ( same price , same programme period etc . ) but there are no specific restrictions concerning the amount of political advertising .

Worth noting is that in several countries , such as in [ the former GPE ] , public service broadcasting is not allowed to broadcast paid political advertising , only private broadcasters may do so .

Countries with no restrictions on paid political advertising

This is the case for instance in GPE , GPE , GPE and GPE . In GPE , the issue of restrictions to political advertising is regulated by each broadcaster by means of internal advertising codes .

Analysis & Comments :

• The often mentioned LOC divide with regard to the ban of political advertising , even if it reflects a real trend , may be somewhat misleading . ORG which allow this practice are often forgotten in comparative overviews .

• In view of the different positions on this matter , ORG does not take a stance on whether paid political advertising should be accepted or not , and simply limits itself to stating in its Recommendation “ that if paid advertising is allowed it should be subject to some minimum rules ( ... ) ” .

• Most countries which allow paid political advertising have introduced some limits so that this practice is not necessarily always discriminatory . All parties may be offered the same opportunities . However , this “ equality of opportunity ” is only real when all parties have the necessary funds at their disposal to buy the same amount of time . ... ”

The Survey summed up the issues as follows :

“ The lack of explicit definitions and the great diversity of national traditions are likely to create confusion between NORP counterparts when referring to political advertising . Generally , the term “ advertising ” as in political advertising is used in the broadest sense as political propaganda . As a rule , national advertising provisions are not applicable as they require payment or similar consideration . However , in some countries , political advertising is subject to the general legal provisions on advertising . ...

Rather surprisingly , a few countries do not impose any restrictions at all on paid political advertising . However , it does not seem to raise any specific problem or to cause any concern . ...

In the vast majority of countries , parties and/or candidates are usually granted free airtime , often but not exclusively on public service broadcasters to present their programmes . It is interesting to note that such a system does not exist in a few countries , where there is no official electoral campaign scheme on television . ...

It is sometimes argued that if candidates and parties have fair access to free airtime during election campaigns , there is less ( or no ) need for paid political advertising . This can not be systematically verified in practice as the existence of a scheme for allocating a free airtime does not prevent some countries to allow paid political advertising . ...

In many ( NORP ) NORP countries , the most burning topic at present seems to be “ issue advertising ” , i.e. messages with a political end emanating from organizations which are not political parties , such as interest or societal groups . Further to the ORG ruling , a few countries have restricted the scope of the ban of political advertising and now allow such spots - outside election periods . ... ”

The summary ended with the following question :

“ Are the current total bans ( including issue advertising ) justified in a “ relevant and sufficient manner ” so that they would survive scrutiny under the ORG ? Do they constitute a disproportionate restriction on the freedom of expression ? ”

This paper commented upon recent Convention case - law . It noted that the PERSON case had opened an original perspective since DATE now appeared to require a positive intervention by the ORG to implement a form of right to broadcast through advertising space . The paper compared ORG and Others v. the GPE judgment ( no . PERSON , PERSON PERSON ) , which emphasised the value of access to other media , and the above - cited PERSON case which did not accept arguments based on VgT.

While the ORG study of DATE included certain non - Contracting States , the ORG has reviewed CARDINAL ORG including CARDINAL ( GPE , GPE , GPE , GPE , GPE , GPE and GPE ) which were not covered in the ORG study . Since the DATE report of the ORG , there have been relevant changes to the regulatory regimes in GPE , most of which have been relatively significant .

DATE . Of CARDINAL States examined , MONEY prohibited paid political advertising in some form . In this latter respect , the scope of the prohibition in GPE ( GPE , GPE , GPE , GPE , GPE , GPE and GPE ) as well as GPE could be considered wide either because of the wide definition of “ political ” , because of its application outside of electoral periods or for both reasons . However , even for GPE , the definition and interpretation of “ political ” varies so that the prohibition could arguably be ( GPE ) or has been ( GPE , GPE , NORP , GPE and GPE ) applied to allocate airtime to certain NGOs ( such as ORG , ORG ) to certain governmental organisations ( such as ORG ) and to some national charities . The trend in the vast majority of ORG reviewed is to allow the broadcasting of advertisements of a certain social interest nature from certain bodies .

ORG on measures concerning media coverage of election campaigns provided :

In member GPE where political parties and candidates are permitted to buy advertising space for electoral purposes , regulatory frameworks should ensure that :

- the possibility of buying advertising space should be available to all contending parties , and on equal conditions and rates of payment ;

- the public is aware that the message is a paid political advertisement .

Member GPE may consider introducing a provision in their regulatory frameworks to limit the amount of political advertising space which a given party or candidate can purchase . ”

The Explanatory Memorandum to that Recommendation noted :

Paid political advertising in the broadcast media has traditionally been prohibited in many ORG member GPE , whilst it has been accepted in others . CARDINAL of its major advantages is the opportunity which it provides for all political forces to widely disseminate their messages / programmes . On the other hand , it may give an unfair advantage to those parties or candidates who can purchase important amounts of airtime .

In view of the different positions on this matter , the ORG does not take a stance on whether this practice should be accepted or not , and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules : one , that equal treatment ( in terms of access and rates ) is given to all parties requesting airtime , and CARDINAL , that the public is aware that the message has been paid for .

It may also be considered important to set limits on the amount of paid advertising that can be purchased by a single party . Nevertheless , the Recommendation does not specify whether it is desirable to do so nor does it set any precise limits on the amount of paid advertising , as it is considered that the decision on this matter should be taken at the national level . ”

On DATE Recommendation Rec(CARDINAL)CARDINAL revised PERSON . The Draft Explanatory Memorandum noted :

“ DATE . In view of the different positions on this matter , Recommendation CM / Rec(CARDINAL ) ... does not take a stance on whether this practice should be accepted or not , and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules , in particular that equal treatment ( in terms of access and rates ) is given to all parties requesting airtime . ”


No violation of Art. 2 (procedural aspect)

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE their son , Mr PERSON , born in DATE , a parachute instructor in ORG , died when performing a parachute jump from a ORG helicopter during a training exercise of ORG .

Six paratroopers were scheduled to jump on DATE . Before getting into the helicopter they were examined by a doctor who confirmed that they were physically fit . The helicopter took off at TIME reached a height of QUANTITY . Immediately before the start of the parachute jumps Chief PERSON , in charge of the jumps , instructed the helicopter 's pilots to speed up . The pilots responded “ You have it ” . It is unclear what the exact speed thus reached was , because , as it was established later , the helicopter 's device recording the parameters of the flight had not been loaded with a tape .

One of the paratroopers , PERSON , jumped first . Immediately after the jump , his body was thrust back by the air stream and his head passed QUANTITY from the left rear tyre of the helicopter .

The applicants ' son jumped TIME later . Immediately after the jump , his head hit the left rear tyre of the helicopter and he became unconscious . His body fell freely and hit the ground .

TIME later the next paratrooper , PERSON , jumped . His head also hit the left rear tyre of the helicopter and he became unconscious . QUANTITY from the ground he regained consciousness and attempted unsuccessfully to open his parachute . His body also hit the ground .

After the accidents with the applicants ' son and PERSON the parachute jumps stopped and the helicopter landed . The CARDINAL bodies were located soon afterwards .

On DATE the Ministers of the Interior and Defence appointed a CARDINAL - member commission to investigate the reasons that had led to the fatal accident . The commission , which included paratroopers , doctors and other experts , conducted inspections , interviewed witnesses and examined documents . On DATE it presented an interim report proposing , with a view to establishing properly the circumstances of the accident , that an experiment with a dummy being thrown from a helicopter at different speeds be carried out and that the helicopter 's manufacturer be asked for additional technical information . However , it appears that none of these actions was taken .

On DATE the commission submitted its final report . It established that after Chief PERSON had instructed the crew to speed up ( see paragraph CARDINAL above ) , the helicopter had increased its speed from CARDINAL to QUANTITY / h . This estimation was based on ground control data .

Furthermore , the commission established that the helicopter , which was built in DATE , had been in a good state of technical repair , and that its equipment had been functioning well during the fatal flight . The CARDINAL members of the crew were experienced and qualified . The commission established that DATE Mr PERSON had performed CARDINAL parachute jumps , CARDINAL of which were from a ORG helicopter . PERSON had performed CARDINAL jumps , CARDINAL of which were from a ORG helicopter .

NORP The commission concluded that the accident had been caused by

“ the inappropriate speed of the helicopter and the position of the paratroopers ' bodies at the time of jumping , not in conformity with that speed ” .

Additionally , the accident had been due to :

“ CARDINAL ) incomplete coordination between the helicopter 's crew and the paratroopers ; CARDINAL ) shortcomings in the preparation and conduct of the flight on the part of the helicopter 's crew ; and CARDINAL ) shortcomings in the organisation and the conducting of the parachute jumps on the part of ORG . ”

NORP The commission criticised the failure of the officials responsible for the organisation of the flight to load the helicopter 's recording device with a tape ( see paragraph CARDINAL above ) , which was against the rules .

Furthermore , the commission criticised Chief PERSON failure to communicate to the crew the exact speed he needed when he requested them to speed up . Neither had the speed at which the jumps were to be performed been indicated by the officer in charge of the training ( he had remained on the ground ) before the helicopter took off .

The commission recommended various measures for the prevention of similar accidents in the future , mostly concerning the training of paratroopers and flight preparation . It is unclear whether any of them were put into practice .

On DATE the commission 's report was affirmed by the Minister of Defence , but not by the Minister of the ORG . Subsequently , the document was extended to the prosecuting authorities who investigated the deaths of Mr PERSON and PERSON ( see below ) .

On DATE the GPE military regional prosecutor 's office opened a preliminary investigation into the accident .

A post - mortem examination of the bodies of the applicants ' son and PERSON ORG was carried out on CARDINAL DATE . It concluded that the death had been caused by “ numerous traumas incompatible with the maintenance of life ” . There were no traces of alcohol or poison in the blood .

Nor were any traces of alcohol or poison found in the crew members ' blood .

Colonel O. , the flight captain , was questioned on CARDINAL DATE . He stated that the helicopter had been checked and found to be in good technical repair just before the flight . Furthermore , he stated that after Chief PERSON had asked the pilots to speed up he had increased speed from QUANTITY . After the first CARDINAL paratroopers had jumped , he had been told to land as QUANTITY of the paratroopers ' parachutes had not opened .

Senior PERSON , the flight engineer , was questioned on DATE . He also testified that the helicopter 's speed at the time when the parachute jumps had started had been QUANTITY . The speed and the height had not changed during the jumps . When jumping from the helicopter , Mr PERSON had plunged energetically and Mr PERSON and PERSON had not , which , in Senior PERSON view , had been the reason for the fatal accident .

On DATE PERSON , who had jumped before PERSON , testified that immediately after jumping he had felt an unexpectedly strong air stream .

Chief PERSON , who had been on board the helicopter , was questioned on DATE . He explained that he had seen PERSON head pass QUANTITY from the helicopter 's left rear tyre and then Mr PERSON and PERSON hit the tyre . Because of the force of the blow , Mr PERSON 's body had turned several times in the air .

Lieutenant NORP , who had also been in the helicopter , testified that he , too , had seen Mr PERSON head hit the tyre . Captain C. , who had also been on board , described the position of PERSON body immediately after he had jumped as “ totally abnormal ” .

Chief PERSON , who had been in charge of the jumps and had been scheduled to jump after PERSON , was questioned on DATE . He explained that he had not seen Mr PERSON and PERSON hit the tyre but had become aware of the abnormal position of PERSON body and had not jumped . He had not noticed any change in the speed , height or direction of the helicopter during the parachute jumps .

During DATE after CARDINAL DATE the investigator in charge of the case examined other witnesses , conducted inspections and collected documentary evidence .

On DATE he appointed the members of the internal inquiry commission of ORG ( see paragraphs CARDINAL above ) as experts in the criminal proceedings , with the task of determining the cause of the CARDINAL paratroopers ' deaths . Since the experts failed to submit a report within DATE that followed , on DATE a prosecutor from the GPE military regional prosecutor 's office stayed the proceedings .

On several occasions in DATE and DATE the GPE military regional prosecutor 's office sent letters to ORG requesting that their officials appointed as experts prepare and submit a report for the purposes of the criminal proceedings .

On DATE the criminal proceedings were resumed and the prosecutor in charge of the case appointed a new group of experts from ORG in PERSON , with the task of assessing the reasons for the deaths of the applicants ' son and PERSON

On DATE the experts submitted their conclusions , specifying that the information they had been given was insufficient , there being no data on the exact parameters of the flight , and also that they were not experts in parachuting ; therefore , they were not able to draw up a formal expert report .

The experts considered that the helicopter 's speed at the time of Mr PERSON and PERSON jumps had been CARDINAL km / h . However , in their view , the speed was not related to the fatal accident , which had instead been caused by the QUANTITY paratroopers ' jumping technique ; this had not been in compliance with the respective instructions for performing parachute jumps .

In DATE and DATE the GPE military regional prosecutor 's office sent new letters to ORG requesting again that the experts appointed on CARDINAL DATE ( see paragraph CARDINAL above ) draw up a formal report .

On DATE ORG experts submitted their report . The group included CARDINAL paratroopers and a doctor . ORG experts did not sign the document .

On the basis of ground control data , ORG experts established that the helicopter 's speed at the time of Mr PERSON and PERSON jumps had been QUANTITY / h . The experts were of the opinion that Mr PERSON and PERSON had not committed any errors when jumping from the helicopter , but pointed out that they did not possess the expertise to assess whether the helicopter 's crew had committed any errors that might have led to the tragic accident . The experts noted that the QUANTITY paratroopers ' parachutes had been well packed and in good repair and that the weather conditions at the time had not affected the flight .

On DATE a prosecutor from the GPE military regional prosecutor 's office discontinued the criminal proceedings . Relying on witness testimony and the conclusions of ORG experts ( see paragraph CARDINAL above ) , he found that the helicopter 's speed and course of flight did not change significantly during the parachute jumps and were not related to the fatal accident . He accepted that sufficient data could not be collected to assess whether the helicopter 's crew had committed any errors and that the applicants ' son and PERSON had not complied with the respective instructions on performing parachute jumps .

On an appeal by the applicants , on DATE the ORG quashed the prosecutor 's decision . On DATE ORG affirmed the lower court 's findings . It held that the prosecutor had breached the procedural rules and that the conclusions of ORG experts , on which his decision had been based , could not serve as valid evidence in the case .

After the case was remitted to the prosecution , some of the witnesses were re - examined . On an unspecified date Chief PERSON , who had been in charge of the parachute jumps , explained that when he had instructed the helicopter crew to speed up he had meant a speed of QUANTITY / h , as was usual . He had become aware later , apparently from the conclusions of the internal inquiry , that the speed had been above QUANTITY / h . He considered that this , coupled with a possible minor side inclination of the helicopter , which would have shifted the position of the left rear tyre vis - à - vis the paratroopers ' bodies , had been the reason for the accident with the applicants ' son and PERSON

On DATE a prosecutor from the GPE military regional prosecutor 's office requested the Ministers of the Interior and Defence to nominate CARDINAL experts in aerodynamics , aviation , meteorology and parachuting to be appointed experts in the criminal proceedings and draw up a new expert report . He received no reply .

On DATE the prosecutor appointed another group of experts – a physician from ORG and CARDINAL lecturers from ORG of ORG in GPE – with the task of assessing the reasons for the QUANTITY paratroopers ' deaths on CARDINAL DATE .

The experts submitted their report on DATE . They considered it scientifically impossible for Mr PERSON and PERSON to have hit the helicopter 's left rear tyre ; in their view those blows had been “ made up ” . The experts considered that the QUANTITY paratroopers had wrongly estimated the distance to the ground and had failed to open their parachutes in time ; this had led to their deaths . Furthermore , the paratroopers had failed to comply with the relevant instructions on the position of their bodies at the time of jumping . The speed and course of the helicopter had not been related to their death .

On DATE a prosecutor from the GPE military regional prosecutor 's office once again discontinued the criminal proceedings . In his decision , he referred to the expert report of DATE and its conclusion that the applicants ' son and PERSON had not in fact hit the left rear tyre of the helicopter ( see paragraph CARDINAL above ) . However , he also mentioned the witness testimony indicating that these impacts had happened ( see paragraphs CARDINAL above ) . He failed to examine the apparent controversy between those CARDINAL groups of evidence and to indicate which version he found plausible . He merely concluded , after describing the evidence collected in the case , that there was no appearance of a crime .

Upon appeal by the first applicant , on DATE the prosecutor 's decision was upheld by ORG . Examining the evidence collected in the case , that court dismissed the conclusion of the expert report of DATE ( see paragraph CARDINAL above ) that Mr PERSON and PERSON had not hit the helicopter 's left rear tyre ; it considered that in this regard the testimony of the other participants in the flight was reliable . Nevertheless , the domestic court accepted the experts ' conclusion to the effect that PERSON PERSON and PERSON had not positioned themselves correctly when they jumped . It concluded that this had been the reason for their hitting the tyre and falling to the ground . Accordingly , it upheld the prosecution 's conclusion that no offence had been committed in the case .

Soon after their son 's death , the applicants sought the compensation provided for in section CARDINAL(CARDINAL ) of LAW CARDINAL ( see paragraph DATE below ) . As they had not received that sum by DATE , they brought a claim . They sought the compensation provided for in section CARDINAL(CARDINAL ) of LAW , plus interest , as provided for in section CARDINAL ( ibid . ) .

While the proceedings were pending , ORG paid up the compensation due , which was in the amount of MONEY ( ORG ) , the equivalent of MONEY ( ORG ) . Therefore , in a judgment of DATE the GPE ORG only awarded the applicants the interest accrued , in accordance with CARDINAL of LAW , which amounted to ORG , the equivalent of LAW . That judgment was not appealed against and entered into force .

In DATE the applicants also sought indemnification from the company with which their son had been insured by ORG . They claimed a sum of MONEY , the equivalent of ORG CARDINAL . However , that indemnification was refused as they had failed to claim it within the statutory DATE time - limit from the date of their son 's death .

Section CARDINAL(CARDINAL ) of that Act , in force at the relevant time , provided that ORG would be liable to pay compensation in the amount of DATE salary , to each of the heirs ( spouse , children or parents ) of an army serviceman who had died during military service . By CARDINAL of the same LAW , the ORG was also liable to pay any interest accrued in the event of a delay of payment .

Where the heirs of an army serviceman who had died during military service sought a larger amount in damages , they could , by virtue of the provision of section ORG ) of LAW , bring an action before the civil courts .

Section CARDINAL(CARDINAL ) of the DATE ORG Caused to Citizens Act ( on DATE its name was changed to “ ORG and ORG ” ) provides that the ORG is liable for damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants committed in the course of or in connection with the performance of their duties .

In addition , section GPE ) of the DATE LAW provides that everyone is obliged to make good the damage which they have , through their fault , caused to another person . Section CARDINAL of the LAW provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job .