(1) R (on the application of London Christian Radio Ltd) (2) Christian Communications Partnerships Ltd (Claimants) v Radio Advertising Clearance Centre (Defendant) & Secretary Of State For Culture, Olympics Media & Sport (Interested Party)

Facts

The claimants (L and C) applied for judicial review of a decision of the defendant regulatory body (R) refusing to clear an advertisement for broadcasting on the basis that it offended the prohibition on political advertising.

L ran a national Christian radio station and C was a publisher of Christian magazines. They wished to publish an advertisement on the radio asking about the marginalisation of Christians in the workplace and informing listeners that the advert was "seeking the most accurate data to inform the public debate" and to "help make it a fairer society". R checked the advert to ensure compliance with the appropriate code and stated that it was of the view that the advertiser intended to use the information provided to influence or change government policy. It refused to clear the advertisement for broadcasting as it offended the prohibition on political advertising under the Communications Act 2003 s.319 and s.321. R played no part in the instant proceedings but the secretary of state, as interested party, opposed L and C's application.

L and C contended that broadcasting the advertisement would not contravene s.319 or s.321 but, even if it did, the statutory prohibition was incompatible with their rights under the European Convention on Human Rights 1950 art.10.

Held

(1) The prohibitions on political advertising contained in s.319 and s.321 were justified as being necessary in a democratic society and therefore compatible with art.10, R. (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 A.C. 1312 followed. Accordingly, the restrictions set out in s.319(2)(g) constituted restrictions prescribed by law and were necessary in a democratic society, VgT Verein gegen Tierfabriken v Switzerland (24699/94) (2002) 34 E.H.R.R. 4 and TV Vest AS v Norway (21132/05) (2009) 48 E.H.R.R. 51 considered. Radio and television advertising were areas where a degree of control was to be expected, R. (on the application of ProLife Alliance) v BBC [2003] UKHL 23, [2004] 1 A.C. 185 applied and R. (on the application of Gaunt) v Office of Communications (OFCOM) [2011] EWCA Civ 692, [2011] 1 W.L.R. 2355 considered (see paras 29, 49 of judgment). (2) The purpose of the ban on political advertising was to ensure that the public were protected from that form of advertising, irrespective of the views, or motives, of the advertiser. If the motive of the advertiser was of decisive or crucial importance the mere fact that an advertiser could show that he did not intend to bring about one of the consequences set out in s.321(3) would mean that the advertisement might have to be cleared, even though it would inevitably fall into one of the categories within s.321(3). There was nothing in the wording of the legislation which showed that the intent of the advertiser had any relevance. Applying an objective test, the instant advertisement sought to obtain information which would be used to try to make changes to society and would fall within s.321(3)(b), s.321(3)(c), s.321(3)(d) or s.321(3)(f) (paras 58-59). (3) Whilst the meaning of the statutory provisions were ultimately a question for the court, the appropriate decision maker on whether the advertisement should be cleared was R and its decision to refuse clearance could not be classed as irrational, R. v Monopolies and Mergers Commission Ex p. Ecando Systems Philbeach Events [1993] C.O.D. 89 applied (paras 60-61).

Application refused

Comment

The restriction on advertising that contravened the prohibition on political advertising under the Communications Act 2003 s.319(3)(g)constituted restrictions prescribed by law and were necessary in a democratic society for the purposes of the European Convention on Human Rights 1950 art.10(2). The purpose of the ban on political advertising was to protect the public, and the views of the advertiser, as to whether an advertisement was political, were irrelevant.