Political advertising from Ireland to Switzerland

IBI logoSection 41(3) (also here) of the Broadcasting Act, 2009 provides:

A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.

Earlier this week, at the annual conference of the Independent Broadcasters of Ireland, the Chairman of the IBI and CEO of Today FM, Willie O’Reilly called for the repeal of this provision, saying that it was open to challenge in the European Courts. According to the IBI press release:

The ban on paid political advertising applies not just to political parties and election candidates but also to organizations, such as trade unions, promoting issues which are considered to be of a political nature.

There is arguably a strong legal case at European level against Ireland’s current ban in the context of freedom of expression as laid down in the European Convention of Human Rights. The current law is outmoded and inappropriate and it is questionable as to whether it is robust enough to withstand a legal challenge in the European Court.

The simple fact is that the internet has made the ban irrelevant. The Obama campaign was won online and all the party’s in the British election are committed to campaigning intensively online. It is ludicrous that a political party can advertise on a radio station’s website but cannot advertise on the radio itself. Moreover, we are seeing political parties in Ireland use the internet and sites such as you tube to upload professional video content that is to all intents and purposes political advertising. The arbitrary exclusion of some electronic media including radio, but not others, from paid political campaigning is nonsense and it is time for our laws to be brought up to date. …

I do not understand, and I do not accept, that it is fair, or reasonable, or right that either audiences or broadcasters should be excluded from paid political broadcasts. What is acceptable in newspapers, and what is available online, should be allowed to air on radio and on television in a free and functioning media. If the government refuses to look at this issue seriously we may be left with no option but to take a challenge to the courts ourselves.

At the end of last year, Dr Kevin Rafter, Head of the Department of Film and Media, in the School of Creative Arts, at the Dun Laoghaire Institute of Art, Design and Technology wrote a fascinating report on Political Advertising: The regulatory Position and the Public View (here) for the Broadcasting Authority of Ireland (BAI) which I discussed here, here and here. According to the IBI press release, Rafter told the conference that the time had come to look again at the laws governing political broadcasting:

It is timely to examine whether political advertising should be allowed on television and radio, especially with the rise of these type of adverts on the web and also doubts about the legality of the current outright ban in Ireland.

I have long argued that this ban is questionable in the light of the decisions of the European Court of Human Rights. The point is most strongly emphasised by the decision of the Grand Chamber in Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) 32772/02, [2009] ECHR 1025 (30 June 2009). In the first part of the case, (VgT (No 1) 24699/94, (2002) 34 EHRR 159, [2001] ECHR 412 (28 June 2001)) the Court had found that the prohibition of a political advertisement violated Article 10 of the Convention. Switzerland ultimately failed to remedy the situation, in particular because the Federal Court subsequently dismissed VgT‘s application to reopen the proceedings, so the matter returned to the Court. A Chamber (32772/02, 4 October 2007) held that this amounted to a further infringement of Article 10, and the case was referred to the Grand Chamber. In turn, the Grand Chamber (32772/02, [2009] ECHR 1025 (30 June 2009)) held that the continuing failure to respect the earlier decision constituted a fresh violation of the Convention’s freedom of expression guarantee:

[92] The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or, as in this case, on debate of questions of public interest. … This applies all the more in the instant case, having regard to the Court’s judgment of 28 June 2001 [in VgT (No 1)]. Moreover, the television commercial concerned battery pig-farming. Accordingly, as it related to consumer health and to animal and environmental protection, it was undeniably in the public interest.

[93] The Court further notes that the television commercial was never broadcast, even after the Court’s judgment had found that the refusal to broadcast it infringed freedom of expression. However, prior restraints on publication entail such dangers that they call for the most careful scrutiny …

[94] Furthermore, the Court has already found, in its judgment of 28 June 2001 [in VgT (No 1)], that the interference in issue was not necessary in a democratic society, among other reasons because the authorities had not demonstrated in a relevant and sufficient manner why the grounds generally advanced in support of the prohibition of “political” advertising could serve to justify the interference in the particular circumstances of the case (see VgT (No 1) [75]). …

[95] … the public interest in dissemination of a publication does not necessarily decrease with the passing of time … Moreover, the Federal Court did not offer its own explanation of how the public debate on battery farming had changed or become less topical since 1994, when the commercial was initially meant to have been broadcast. Nor did it show that after the Court’s judgment of 28 June 2001 [in VgT (No 1)] the circumstances had changed to such an extent as to cast doubt on the validity of the grounds on which the Court had found a violation of Article 10. Lastly, the Court must also reject the argument that the applicant association had alternative options for broadcasting the commercial in issue, for example via private and regional channels, since that would require third parties, or the association itself, to assume a responsibility that falls to the national authorities alone: that of taking appropriate action on a judgment of the Court.

[96] Furthermore, the argument that the broadcasting of the commercial might be seen as unpleasant, in particular by consumers or meat traders and producers, cannot justify its continued prohibition. The Court reiterates in this connection that freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.

[97] The Court notes, lastly, that the Contracting States are under a duty to organise their judicial systems in such a way that their courts can meet the requirements of the Convention … This principle also applies to the execution of the Court’s judgments. Accordingly, it is equally immaterial in this context to argue, as the Government did, that the Federal Court could not in any event have ordered that the commercial be broadcast following the Court’s judgment. The same is true of the argument that the applicant association should have instituted civil proceedings.

[98] Having regard to the foregoing, the Court considers that the Swiss authorities failed to comply with their positive obligation under Article 10 of the Convention in the instant case. There has therefore been a violation of that Article.