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Radio advert was “directed towards a political end” – prohibition did not breach ECHR, art 10

London Christian Radio Ltd & Anor v Radio Advertising Clearance Centre & Anor [2013] EWCA Civ 1495

Related Member(s):
Aidan O’Neill QC (Scot) QC
Related Practice Area(s):
Media and Information Law, Human Rights
Court:

Appeal against a decision that a radio advert was “directed towards a political end” within the meaning of the Communications Act 2003, s 319(2)(b) and that the prohibition of the advert had not breached the ECHR, art 10.

Held: the advertisement was to a political end and supportive of a campaign which was of a political nature. The clear effect of the language of the Communications Act 2003 was that the subject-matter of the advertisement and not the intentions of the advertiser should be analysed. What mattered was the effect of the advertisement on the political debate. The question was whether the advert would frustrate the aim of ensuring the playing field of political debate is level. The motives of the advertiser could not have affected the playing field of the debate and could not do so unless they were revealed explicitly in the text of the advertisement. If regard were to be had to the motives of the advertiser then the mere fact that an advertiser could show that he did not intend his advertisement to be directed towards a political end would mean that the advertisement could not be prohibited even if objectively it was directed towards a political end. This would frustrate the purpose of the Communications Act 2003, s 319(2)(b). “Political” was an inherently wide concept and included both political parties and social advocacy bodies. S 321(2)(b) was expressed in words of ordinary language and there were no general or ambiguous words. The ECtHR had already held the ban on political advertising to be compatible with ECHR, art 10. The argument that s 321(2)(b) should be construed narrowly on the grounds that interference with ECHR, art 10 needs to be justified was the same argument as the “principle of legality” argument which had already been dismissed.

Aidan O’Neill was involved in this case.