CONCURRING OPINION OF JUDGE BRATZA

1. I have voted with the majority in favour of finding no violation of Article 10 in the present case and can, in general, fully subscribe to the reasoning in the judgment. I only add some words of my own because of the importance of the issues involved in the case on which the Court has been sharply divided.

2. There are several features of the case which in my view deserve emphasis at the outset.

3. In the first place, as pointed out by Lord Bingham in the House of Lords, the principle that an advertisement which is directed towards any religious or political end should not in general be permitted to be broadcast has a long history in the United Kingdom. It is a principle which has been consistently preserved and was given effect to when incorporated in section 321 of the Communications Act 2003. The word “political” has always been given a wider meaning than “party political”. Under the section, an advertisement can fall foul of the prohibition either because of the nature or character of the advertiser or because of the content and character of the advertisement. In the present case, it was the fact that the objectives of the applicant association were “wholly or mainly of a political nature” which was the ground of the prohibition. It is not disputed by the applicant that the advertisement in question was to be treated as a political advertisement for the purposes of the section; nor is it contested – indeed, it was expressly accepted in the evidence of the Chief Executive of the applicant association – that the object was to persuade Parliament to legislate to outlaw the use of animals for the purposes of commerce, science or leisure. It was, as Baroness Hale put it, an advertisement by “a particular interest group which campaigns for changes in the law”.

4. Secondly, as in the VgT and TV Vest cases ( VgT Verein gegen Tierfabriken v. Switzerland , no. 24699/94, ECHR 2001 VI; and TV Vest AS and Rogaland Pensjonistparti v. Norway , no. 21132/05, 11 December 2008), the interference with the applicant’s freedom of expression stemmed not from a decision or exercise of discretion of a court or executive authority but from a statutory prohibition applicable to all forms of political advertising. Where the interference is the result of an individual decision, the Court’s approach has been to examine the necessity and proportionality of the restriction in the particular circumstances of the case. Where, however, as here, the interference springs directly from a statutory provision which prohibits or restricts the exercise of the Convention right, the Court’s approach has tended to be different. In such a case, the Court’s focus is not on the circumstances of the individual applicant, although he must be affected by the legislation in order to claim to be a victim of its application; it is, instead, primarily on the question whether the legislature itself acted within its margin of appreciation and satisfied the requirements of necessity and proportionality when imposing the prohibition or restriction in question. There are, as the High Court and House of Lords pointed out, numerous examples in the Court’s case-law where the question of the necessity, proportionality and balance have been examined not in the context of the specific circumstances of the individual applicant but in the context of the legislation itself which was the source of the interference. Equally importantly, there are many cases where the Court has accepted the need for a “brightline” or general statutory rule and has found no violation of the Convention even though loyalty to the rule may involve apparent hardship to the applicant in the individual case. In such a case, the answer to the question of compatibility is not and cannot be determined by reference to the particular circumstances of the applicant caught by the statutory provision in question. As Lord Bingham put it, “the drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial”, which I would in the context in which the word is used interpret to mean consistent with the Convention. Several examples of such cases are set out in paragraph 107 of the judgment. As is apparent from the short description in that paragraph, the cases dealt with a wide variety of different legislative measures, none of which concerned a prohibition of the present kind. However, this does not detract from the importance of the principle established in those cases, which is in my view directly applicable in the present case.

5. Thirdly, the Court has consistently emphasised the fundamental role of freedom of expression in a democratic society, where it serves to impart information and ideas of general interest, which the public are moreover entitled to receive. It has also emphasised the high level of protection afforded to political speech and has, in general, required an especially pressing social need if restrictions are to be imposed on it. It is, however, of central importance that the legislation with which the Court is concerned in the present case did not and does not impose a prohibition or restriction on political speech in general. It is, instead, legislation directed specifically at a particular mode of political expression (namely, advertising) and a particular part of the media (namely, radio and television broadcasting). It does not, and does not purport, to have an impact on other mediums of communication of political opinion – newspapers, magazines, direct mailshots, billboards, public meetings, marches or more modern technological forms of communication, such as the internet or e-mail. Nor does it prohibit the use of the broadcast media to spread a public message other than through direct advertising, as for instance by contributing to broadcast current affairs programmes or radio phone-ins.

The applicant association plays down the importance of these alternative methods of conveying its message, some of which methods it indeed used. Like the House of Lords, I regard it as a matter of considerable significance. As pointed out by Lord Bingham, the case is quite different from that of Bowman where the legislative provision operated for all practical purposes as a total barrier to the applicant’s communication of her views. It is, of course, true that television advertising is the most powerful and potent form of conveying a political or other message and it is for this reason that this was the medium chosen by the applicant. But it is also because of the power of the television medium that for the past 60 years Parliament has seen the need to treat this form of communication as in a special category, with its potential for distorting the political scene and giving unfair advantage to those espousing particular political causes.

6. Fourthly, the fact that restrictions imposed are confined to advertising through the medium of broadcasting has been treated in the Court’s case-law as a matter of some importance and as having direct relevance to the question of the proportionality of the measure. This emerges clearly from the Murphy case, in which the Court emphasised that the State was not only entitled to be wary of the power of audio-visual media but of the risks of uncontrolled advertising, because of its distinctly potent objective and the risk to the principle of impartiality of the broadcasting media.

The applicant argues that the Government have not proved that the broadcast media are particularly potent and contend that, given the increase in other forms of highly pervasive mass-media, there are convincing reasons to believe that that idea might now be false. It is also complained that the Government incorrectly rely on the findings of the Court as to the power of the audio-visual media, those findings not being made with the benefit of evidence and confusing broadcasting through live television and radio with audio-visual media more generally, including film, sound recordings and multimedia internet sites. I do not share this view. Whether or not audio ‑ visual has a wider meaning than television broadcasting as such, it is clear from cases such as Jersild v. Denmark (judgment of 23 September 1994, Series A, no. 298) and Murphy v. Ireland (no. 44179/98, ECHR 2003 IX (extracts) that television broadcasting has consistently been treated by the Court, as well as by the legislature in the present case, as having a particularly powerful influence which may require special provisions of control. Whether, as the applicants contend, its importance has been or will be replaced by other forms of mass media, including the internet, it remains the fact that, although the advertisement in question appears on the internet, it is broadcasting through the medium of television that is still regarded by the applicant itself as having the most powerful impact.

7. The arguments of the parties have to a great extent concentrated on the question whether the VgT case, where the facts were very similar to those in the present case and in which a violation of Article 10 was found should be followed or distinguished. Even though the case has stood for over 10 years, I confess to entertaining certain doubts about the Chamber’s judgment in the case.

First and foremost, even though, as in the present case, the interference with the applicant’s freedom of expression stems directly from legislation which prohibited radio and television advertising which was religious or political, the focus of the VgT judgment was not, as I see it, on the justification in Convention terms for the legislation itself but on the proportionality of its application in the particular case of the applicant. True it is that the Chamber found that the legislation served the legitimate aim of ensuring independence, equality of opportunity and support of the Press. But there the examination of the legislation effectively ended. There was no scrutiny of the question whether the reasons given for the legislation were such as to justify a general prohibition of “political advertising”, of which the applicant’s case was but one example. Instead, the Court found that, whatever the grounds advanced for supporting a general prohibition, it had to be shown that the interference was justified in the particular circumstances of the applicant association’s case. The Chamber concluded that it could not be justified since it had not been argued that the association was a powerful financial group which endangered the independence of the broadcaster and since the intent of the association was only to participate in an ongoing general debate on animal protection and the rearing of animals with which many in Europe agreed.

This approach may well have reflected the way in which the case was argued by the parties before the Court but I believe that it did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the political cause in question, with the attendant risks of discriminatory treatment. As pointed out by the national courts, while the protection of animals from commercial exploitation might be a relatively uncontroversial subject, there are other areas where this would be very far from the case and where the risks of distortion would be particularly high – abortion, immigration, gay marriage and climate change are obvious examples. Although the situation of an individual applicant cannot be ignored, it is the justification for the law in general which should in my view be at the heart of the Court’s examination. In this regard, I consider that the approach of the Chamber in the Murphy case is to be preferred. Unlike VgT and the present case, it was concerned with religious and not political advertising. But the principle is the same and the Court’s primary examination should be focused on the relevance and sufficiency of the reasons for justifying the United Kingdom’s general prohibition of the broadcasting of political advertisements.

8. For the same reason, I have hesitation in accepting that the margin of appreciation should fluctuate, depending on the nature of the association concerned or the political message conveyed. I find difficulty with the idea, reflected in paragraph 71 of the VgT judgment, that since what was at stake was not a given individual’s purely “commercial” interests but his participation in a debate affecting the general interest, the margin should shrink. Where, as here, the issue is and should be the justification for a general legislative measure designed to protect the democratic system from the risk of distortion, the margin afforded should in my view be wider, particularly in a case where there is an absence of consensus among Member States as to how political advertising should be controlled, a point which was not directly addressed in VgT itself.

9. I am also somewhat puzzled by the suggestion in paragraph 74 of the VgT judgment that a prohibition of political advertising which applied only to certain media, namely the broadcasting media and not to others, did not appear to be of a particularly pressing nature. This would seem to me to be in contradiction to the Court’s traditional approach, which one finds reflected in Murphy , not only that the audio-visual media have a more immediate and powerful effect than the print media and may require different measures of control but that the very fact that the prohibition of political advertising is confined to broadcasting is an indication of its proportionality. What I cannot accept is that, by limiting the prohibition to the broadcast media, the State should be seen as accepting that the issue was not one of a pressing social need.

10. However, I do not find it necessary to determine whether VgT was correctly decided, the issue being whether the restrictions on political advertising in the 2003 Act were in the circumstances of the present case compatible with the requirements of Article 10.

11. There is no dispute that the legislation served a legitimate aim. At the heart of the legislation was the protection of the impartiality of public interest broadcasting and the democratic process itself, by ensuring that financially powerful groups were not able directly or indirectly to dictate the political agenda, and thereby making effective the principle of the equality of opportunity.

12. As to the question of the necessity and proportionality of the measure, the Court has frequently reiterated that, by reason of their direct and continuous contact with the vital forces in the society, national authorities – and particularly national legislatures – are in principle better placed than an international court to evaluate the local needs and conditions and to decide on the nature and scope of the measures necessary to meet those needs. I would, like the national courts, give significant weight to Parliament’s considered view in this case. It is, as Lord Bingham noted, reasonable to expect that democratically-elected politicians will be particularly sensitive to the measures necessary to safeguard the integrity of democracy. The impact of broadcasting on the topics, framework and intensity of political debate is one which the legislature is best placed to assess, as it is in deciding what restrictions are necessary to ensure the political process is not distorted. This consideration is reinforced in the circumstances of the present case by the depth of the parliamentary and judicial examination of the necessity of the Act and of the feasibility of any less restrictive alternatives. While it is unclear from the VgT judgment what was the precise extent of the parliamentary scrutiny of the measure in question in that case, in the present case it is quite clear. The summary of the background to the 2002 Bill, which is contained in paragraphs 35 to 55 of the judgment well illustrates the exceptionally detailed examination given to the question of the controls on the broadcasting of political advertisements. The Neill Committee in 1998; the White Paper in 2000; the Joint Committee on Human Rights; the Joint Committee on the 2002 Bill; the Independent Television Commission; the Electoral Commission were all in favour of maintaining the prohibition which had been in effect since 1954. The Government additionally went to some lengths to explain why, despite the VgT judgment, it considered, on Counsel’s advice, that there were strong grounds for maintaining the prohibition because of the fundamental importance of maintaining impartiality in the broadcast media having regard to its reach, immediacy and influence. It was further explained why it would be difficult to produce a workable compromise solution, permitting lesser restrictions confined to the timing of the broadcast, the nature of the person, party or association responsible for the advertisement or the content of the advertisement itself. This was a view which was ultimately accepted by the Joint Committee on Human Rights, which found that the Government had good reasons for believing that the policy reasons for maintaining the ban outweighed the reasons for restricting it. It is also of central importance that the 2003 Act was enacted by Parliament without any member dissent on either side of the political divide. In these respects, the case is far removed from that of Hirst (No. 2) v. the United Kingdom where, as emphasised by the Court in its judgment in that case, there had been, prior to the judgment, no independent examination of the issues at stake and no recent substantive debate on the continued justification for maintaining a general restriction on the right of serving prisoners to vote.

13. It is also of importance that the compatibility with Article 10 of the measures in question were analysed with care and in detail by two national courts, whose judges reached the unanimous conclusion that the restrictions in question were justified. The High Court and the House of Lords are accused of being over-deferential to the views of Parliament. I do not find this to be a fair criticism of the judgments, which explained – in my view, correctly -why, in the particular circumstances of the 2003 Act, special weight should be accorded to the decision of Parliament to maintain the restrictions on political advertising.

14. I would also attach some weight to the lack of European consensus between States in this area. The EPRA Survey referred to in the TV Vest case found no such consensus at that time. It is argued that the intervening years since the VgT case have witnessed at least a trend in favour of allowing the broadcasting of advertisements of a general and social interest and that the United Kingdom remains one of the few States with a prohibition of such breadth. Even if such a trend is revealed, what is clear from the survey and from the applicant’s own observations is that there remain a wide variety of approaches to the question in the Member States, some imposing a blanket ban on political broadcast advertising, some regulating paid political broadcast advertising generally or during an election period, some offsetting any legislative ban by a regulated system of free but limited, political advertising by recognised political parties. Certainly, I find nothing in the material before the Court to justify it in shrinking the margin of appreciation afforded to the respondent State.

15. Finally, in common with the judges of the two national courts, I attach importance, in assessing the proportionality of the measure, to other elements in the case – the fact that it was limited to the broadcast media; the fact that it was confined to advertising and that the applicant had access in principle to the broadcast media for non-commercial programming; the fact that, if a body wished to advertise on a non-political matter, all it had to do (as many had done) was to set up a charitable arm; and the fact that the restrictions were offset by permitting free party political, party election and referendum campaign broadcasts to ensure coverage of a range of political and social views through the broadcast media.

16. As in many other cases which the Court has decided, I readily accept that Parliament could have regulated the situation differently. As noted in the judgment of Ousley J.: “No doubt Parliament could have devised a form of words which would present a solution of sorts to any problem as to where a line was drawn as between advertiser or advertisement”. It could have limited the prohibition to election times; it could have confined the prohibition to political parties and excluded social advocacy groups from its scope; it could have left any restriction to be based on a case-by-case examination; it could have placed a financial cap on groups seeking to broadcast advertisements. All these options were expressly considered and found not to be workable or capable of being applied without the risk of discrimination or arbitrariness and without undermining the principle of impartiality and legal certainty.

17. The role of the Strasbourg Court in a case of this kind is not to carry out its own balancing test or to substitute its own view for that of the national legislature, based on independent scrutiny, as to whether a fair and workable compromise solution could be found which would address the underlying problem or as to what would be the most appropriate or proportionate way of resolving that problem. Its role is rather, as the judgment makes clear, to review the decision taken by the national authorities in order to determine whether in adopting the measures in question and in striking the balance in the way they did, those authorities exceeded the margin of appreciation afforded to them. For the reasons given above and more fully developed in the Court’s judgment, I am unable to find that Parliament stepped outside any acceptable margin or that the restrictions imposed by the 2003 Act violated the applicant’s rights under Article 10 of the Convention.