Political television-advertisement: The European Court of Human Rights TV-Vest judgment

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On December 11th 2008 the European Court of Human Rights handed down its judgment in the case of TV-Vest and Rogaland Pensjonistparti v. Norway http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=23623121&skin=hudoc-en&action=request. The Court found that the application of a blanket ban on advertisment for poltical views in order to fine the TV-channel TV-Vest for having broadcasted an advertisement for the Norwegian Pensionsers Party during the run-up to local and regional elections in 2003, was a violation of the European Convention of Human Rights Article 10. There has been much controversy with regard to the consequences of this judgment, pertaining to the possibilities - if any - of up-holding restrictions on political advertisement on television. The principles of the judgment, of course, apply to the all High Contracting States to the Convention, many of which have similar legislation to the Norwegian ban, and it is therefore a matter of general European interest to make a closer legal review of the judgment. I have made the following, rough review:



1. BACKGROUND AND BASIC FACTS
During the month preceding the local and regional elections in Norway in 2003, Rogaland Pensjonistparti, a regional branch of the Norwegian political party Pensjonistpartiet (hereinafter referred to in English, as “the Pensioners Party”), purchased advertising time on several occasions from TV-Vest, a local television broadcasting company.
The advertisements in question basically informed the public about the Pensioners Party’s main political objectives in the relevant region, and urged those who agreed with these objectives to vote for the Pensioners Party.
Both TV-Vest and the Pensioners Party were well aware of the fact that the Norwegian Broadcasting Act explicitly states that “[b]roadcasters cannot transmit advertisements for … political opinions through television”. However, contrary to the view held by the Norwegian Government (and Parliament), they were of the opinion that application of this prohibition by Norwegian authorities (in first instance the Norwegian Media Surveillance Authority), would represent a violation of the European Convention on Human Rights (ECHR) Article 10, which protects freedom of expression.
TV-Vest (who as broadcaster is the liable party under the relevant provision in the Broadcasting Act) was subsequently fined (NOK 35.000, approximately equivalent to EURO 5.000) in an administrative decision from the Norwegian Media Surveillance Authority.
The case was eventually brought into the Norwegian court system, with TV-Vest as plaintiff and the Norwegian Government as respondent. The Pensioners Party supported TV-Vest through third party intervention. National remedies were exhausted when Norway’s Supreme Court upheld the fine in its judgment dated November 12th 2004.
A joint complaint against Norway was lodged by TV-Vest and the Pensioners Party as applicants to the European Court of Human Rights (hereafter referred to as “the Court”). The application was declared admissible
Before the Court’s public hearing in June 2008, written comments from the Governments of Ireland and the United Kingdom, intervening in support of the Government, had been submitted.


2. THE COURT’S JUDGMENT

Conclusion:
In its Chamber judgment dated December 11th 2008, the Court unanimously concluded that the application of the Norwegian Broadcasting Acts blanket ban on political (television) advertisement in the present case, constituted a violation of ECHR Article 10 – due to the interference with the applicants’ freedom of expression not being regarded as necessary in a democratic society.

Reasoning – general principles:
As a starting point for its reasoning for the above-mentioned conclusion, the Court summarized the general principles laid down in its case-law, with regard to the application of the necessity-test in cases concerning restrictions on political speech and or debate on questions of public interest in general, recalling that in such cases there is little scope for restrictions (§§ 58-59).

The Court, however, also recalled that the potential impact of the medium of expression, is an important factor in the consideration of the proportionality of an interference. With reference to its judgments in Jersild v. Denmark and Murphy v. Ireland, it recalled that the Court had acknowledged that account must be taken of the fact that the audio-visual media have a more immediate and powerful effect than the printed media (§ 60).

Furthermore, the Court reiterated that in its judgment in Bowman v. the United Kingdom, concerning certain electoral law limitations on pre-election expenditure, the Court held that in such a context the right to freedom of expression under Article 10 had to be considered in the light of the right to free elections as protected by Article 3 of Protocol No. 1 to the Convention (§ 61). It went on to quoting §§ 42 and 43 from the Bowman judgment, in which the Court on the one hand emphasized the particular importance of free circulation of information and ideas of all kinds in periods preceding elections, while on the other hand recognizing that the Contacting States must be awarded a certain margin of appreciation with regard to the organization of their electoral systems, and that in certain circumstances this may entail allowing also certain restrictions on freedom of expression which are deemed necessary in order to effectively secure truly free and fair elections.

Reasoning – application of the general principles in the particular case:
Firstly, the Court observed that the interference in the particular case was based on a prohibition which was “permanent and absolute and applied only to television, political advertising through all other media being permitted” (§ 63).

The Court then went on to state that, irrespective of the fact that the speech n question was presented as a paid advertisement rather than as a part of journalistic coverage of a political debate, its contents were indisputably of a political character. Thus, the Court noted, the advertisement fell outside the commercial context of product marketing, an area where States enjoy a wide margin of appreciation. Reference in this connection was made especially to the Court’s judgment in Vgt Verein gegen Tierfabriken v. Switzerland.[1] (See § 64)

Moreover, the Court pointed out that, unlike in the case Murphy v. Ireland,[2] there was nothing in the present case to suggest that the contents of the speech in question that could be liable to offend intimate personal convictions within the sphere of morals or religion (§ 64).

On the contrary, the Court summarized at this point: the political nature of the advertisements called for a strict scrutiny on part of the Court, and a correspondingly circumscribed national margin of appreciation with regard to the necessity of the restrictions (§ 64).

In this connection the Court also commented on the Government’s argument that the restriction in question was more of a question of securing free elections as protected under Article 3 of Protocol No. 1 during a pre-election period, than a question of restricting political speech as such, and that a correspondingly wider margin of appreciation should be applied (ref., inter alia, the Bowman judgment). The Court pointed out that although it was true that the advertisements in question had, indeed, been broadcasted during the run-up to the local and regional elections, the applied ban in the Broadcasting Act was absolute and permanent, and did not apply specifically to elections. In those circumstances the Court did not find it appropriate to attach much weight to arguments drawn from Article 3 of Protocol No. 1 – noting that otherwise, the application of such a blanket ban would be left to the discretion of the Contracting States to such a degree that might lead to results incompatible with the privileged position of free political speech (§ 66).

Therefore, the Court’s further assessment of whether the interference in question could meet the criteria inherent in the necessity-test, focused essentially on the more general rationale for the applied ban in the Broadcasting Act (§§ 69 and 70). The main rationale and the main arguments put forward by the Government and cited by the Court in this connection were basically:

· That allowing the use of television advertisement as a medium and a form of expression for political views, would reduce the quality of political debate generally
· That this would also allow for the financially stronger political groups/parties to obtain a comparative advantage over those of lesser financial means

Although the Court recognized these reasons as relevant, it was not convinced that these objectives were sufficient to justify the interference in question. Its main observations in this relation, as presented in §§ 72-77 of the judgment, were the following:

· There was nothing to suggest that the Pensioners Party belonged to the category of such financially stronger groups or parties which were the prime targets of the prohibition – on the contrary, the Pensioners Party (being marginal in size) belonged to the very category which the prohibition, according to the Government, sought to protect.
· Taking this into account, the Court observed that while the major political parties and groups were given a large amount of attention in edited, journalistic coverage in television, the Pensioners Party was hardly mentioned. Paid advertising on television, therefore, became the only way for the Pensioners Party to get its message across to the television audience. The ban on political advertising did therefore not seem to have the desired effect, but rather had the effect of denying the Pensioners Party to participate altogether in a potent medium which major groups and parties had access to via journalistic coverage.
· It had not been contended that the specific advertising at issue contained elements which were capable of lowering the quality of political debate.
· It did not appear that such advertising could give rise to sensitivities as to divisiveness or offensiveness making a relaxation of the prohibition difficult (at this point reference, again, was made to the Murphy judgment). Therefore, the view put forward by the Government – supported by the intervening Governments – that there was no viable alternative to a blanket ban, was rejected.

3. ROUGH ANALYSIS

In my opinion, this judgment contains at least one clear message: There is very little – if any – scope for blanket bans on political advertising in any medium, as a means of restricting political advertising.

This seems clear from the Court’s emphasis on particularly the following:
· Its general view that if the contents of the speech in question is of a political nature, it is to be regarded as such in relation to Article 10, regardless of whether it is broadcasted as a paid advertisement.
· Its unwillingness to attach weight to arguments drawn from Article 3 of Protocol No. 1 – despite the fact that the advertisements in casu were broadcasted during the run-up to the elections – when the applied ban was not specifically designed for election periods.
· Its explicit rejection of the Government’s contention that a relaxation of the ban was not viable.

On the other hand, and especially when taking into account the Court’s case-law with regard to Article 3 of Protocol No. 1, such as the Bowman judgment, which it also referred to, I would expect that the Court would accept certain restrictions on particularly party political advertising during the periods leading up to elections. For such restrictions to be acceptable under Article 10, however, they would have to be seen to be specifically designed to secure a fair and free election process in the context of the national election process in question. The Court will probably accept a variety of solutions within the margin of appreciation of the States, as long as the effect of the chosen measures does not exclude certain groups or parties from conveying their messages though a medium which is available to other, competing groups or parties. Typical feasible restrictions would be regulations restricting the amount of money the political parties would be allowed to spend on advertising, regulations limiting the amount of advertising time they could buy, or combinations of such regulations.

I doubt, however, that there is much scope at all, after the TV-Vest judgment, seen in conjunction with particularly the Tgv judgment, for restricting advertising for more general political views, outside of the party-political context. I also believe that restrictions even on party-political advertisements during periods far from election periods, would face a tough challenge in meeting the requirements in the necessity-test in Article 10.

[1] In the Vgt case the Court concluded that application of a general ban on political advertising in television and radio so as to restrict an animal rights organisation from purchasing advertising time in order to speak out against the treatment of animals in the industrial meat production, constituted a violation of Article 10.

[2] In the Murphy case the Court accepted that an application of a general ban on religious advertisement in television and radio, used to restrict promotion in radio of religious gatherings, although being an interference with freedom of expression as protected under Article 10, was acceptable as necessary, within Ireland’s margin of appreciation, in order to protect intimate personal convictions within the sphere of morals or religion.