Offence and confusion – updated

Not Gay Advert, via Guardian


Adverts by the Core Issues campaign group, centred around the slogan above, suggesting that gay people could be cured, have been banned from London buses by Boris Johnson, Mayor of London, and chair of Transport for London.

On the other hand, the British Humanist Association ran an advertising campaign on London buses several years ago. Their slogan said “There’s probably no god. Now stop worrying and enjoy your life”. More recently, Stonewall ran a campaign around the slogan “Some people are gay. Get over it!”.

Both the BHA campaign and the Core Issues campaign were controversial, and cleared by the Standards Authority update: notwithstanding earlier reports, it seems that the ASA did not adjudicate on the Core Issues campaign. But the opposition to the latter has been much greater, resulting in the Mayor’s decision to ban the adverts. I am very confused about this, as I can see no material difference between the three campaigns. All three are insulting or offensive to significant groups of the population, and all three should be assessed on the same standard. They should all be published, or all banned. For my own part, I think that the above slogan is horribly offensive, but I don’t think that offense is a sufficient standard to ban it or any of the other adverts. But if it is, it should be applied consistently. I forsee a judicial review of the mayor’s decision, either on the ground that it is unreasonable to act inconsistently, or that it was a disproportionate infringement on Core Issues’ free speech rights.

Update 1 (21 April 2012): Kirsten Sjøvoll has written a superb blogpost discussing the free speech issues at stake here; some extracts:

No ads! Not here! Get over it? – Censorship, Hate Speech, and Freedom of Expression

… There is no universally accepted definition of “hate speech” and state authorities always tread a fine line when censoring speech which, while offensive or distasteful does not obviously rise to the level of hate speech. … Typically what exactly amounts to “hatred” and what type of speech is likely to incite, promote or justify it will be fact-specific. The context of the speech, as well as the target audience will be important but not determinative. The European Court of Human Rights has dealt with the issue of hate speech on a number of occasions but only in February 2012 did it finally consider the question of sexual orientation hate speech. In Vejdeland and Others v Sweden [case no. 1813/07], the Court unanimously held that the applicants’ conviction for the dissemination of approximately 100 homophobic leaflets to students in a secondary school was not a violation of their article 10 rights. …

At its lowest, the Core Values advert does not sit comfortably with the ideals of tolerance and acceptance upon which modern society should be based. …. So was the Mayor justified in banning the advert? I am not convinced that he was. Although offensive and ill-informed, the European Court itself recognised in Vejdeland that this would not generally be enough to justify restricting freedom of expression. I would argue that there is a need to look behind the words to the intention: are they intended to degrade, discriminate, insult or incite hatred on the grounds of sexual orientation? Or are they merely a viewpoint which, however ignorant and distasteful, has a right to be expressed? …

Update 2 (24 April 2012): In Ireland, section 41(3) of the Broadcasting Act, 2009 (also here) provides

A broadcaster shall not broadcast an advertisement which is directed towards a political end …

In the UK, various provisions of the Communications Act, 2003 have a similar effect. I have discussed the compatibility of these provisions with Article 10 of the European Convention on Human Rights in several posts on this blog. In R (on the application of London Christian Radio) v Radio Advertising Clearance Centre [2012] EWHC 1043 (Admin) (20 April 2012), Silber J upheld the refusal of the respondent to permit the broadcast by the applicant of an advertisement concerning marginalisation of Christians in the workplace. The respondent considered that the advert was political and therefore prohibited by section 321 of the Communications Act, 2003; and Silber J held that the restriction was compatible with Article 10(2) of the European Convention. On the UK Human Rights blog Rosalind English has put the Core Values controversy into that context:

Ban on Christian advertising was lawful, says court

… The purpose of the ban on political advertising was to protect the public from the potential mischief of partial political advertising, and the views of the advertiser, as to whether an advertisement was political, were irrelevant. … Silber J considered the case of R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] AC 1312, [2008] UKHL 15 (12 March 2008) and concluded that even though that case is awaiting a ruling from the Grand Chamber in Strasbourg [on appeal from here, blogged here], he was bound by the House of Lords’ ruling that the prohibitions on political advertising contained in sections 319 and 321 of the 2003 Act were justified as being necessary in a democratic society and therefore compatible with Article 10. …

Comment

It is serendipitous and somehow telling that this ruling was handed down within weeks of Transport for London scrapping a series of advertisements promoted by a Christian organisation implying that therapy could change sexual orientation. … it serves to show that much of the deliberation about whether an advertisement goes beyond the prohibited borders of “political” promotion is confounded by the very mischief the legislation seeks to avoid: the content of the message itself.

… Most utterances work to advance some interests as defined by some agenda, at least in the very broad sense contained in … [section 321(2)(b) of the Communications Act, 2003]. Therefore all kinds of utterances should, strictly speaking, fall foul of its prohibition. The act of choosing which ones do and which ones don’t is concealed in this case, as it is in all the others, behind a smokescreen of higher arguments about democracy and public rights. … In consequence, this debate forces the question whether there is, in truth, any form of issue-driven speech that is not political, if “political” is so broadly defined as to cover anything has consequences. …

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