JOINT DISSENTING OPINION OF JUDGES ZIEMELE, SAJÓ, KALAYDJIEVA, VUČINIĆ AND DE GAETANO

1. We regret that we cannot share the view of the majority that there has been no violation of Article 10 in this case. We are particularly struck by the fact that when one compares the outcome in this case with the outcome in the case of VgT Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001 ‑ VI) the almost inescapable conclusion must be that an essentially identical “general prohibition” on “political advertising” – sections 321(2) and (3) of the 2003 Act in this case and sections 18 and 15 of the Federal Radio and Television Act and the Radio and Television Ordinance respectively in VgT – is not necessary in Swiss democratic society, but is proportionate and a fortiori necessary in the democratic society of the United Kingdom. We find it extremely difficult to understand this double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.

2. In the instant case the prohibition was an almost blanket restriction. It prohibits, regardless of content, all paid advertising on “political” matters. This includes the prohibition of paid advertisements on any subject whatsoever by any body whose objectives are “wholly or mainly political”, regardless of the identity or function of the advertiser. The term “political” is so widely defined that it covers most issues of public interest. The extent of the ban was highlighted both by Mr Justice Ousley in the High Court (see paragraph 13 of the majority judgment) and by Lord Scott in the House of Lords (paragraph 27). Both, however, defer to the will of Parliament [1] . In the instant case all television and radio broadcasters – whether national or local, and whether public service or independent – fall within the scope of the prohibition: in this sense the prohibition is wider than that which was considered excessive in VgT . Moreover the prohibition in this case applied without the possibility of any exception. In sum, the prohibition applied to the most protected form of expression (public interest speech), by one of the most important actors in the democratic process (an NGO) and on one of the most influential media (broadcasting).

3. We are concerned about the Court’s approach in the instant case to the issue of “general measures” and the application of the proportionality principle to the facts of the case. The majority judgment recalls that there is little scope under Article 10 § 2 for restrictions on debates on questions of public interest. Reference to that standard is made in the context of the examination of the extent of the margin of appreciation to be afforded, where the type of the expression at issue is treated merely as one of a number of “factors” and not as a specific right that can be restricted only where a pressing social need for its limitation is clearly and convincingly demonstrated . Since, as observed in paragraph 104 of the majority judgment, “the margin of appreciation to be accorded to the State in the present context is, in principle, a narrow one”, it should follow, at least in our view, that nothing justifies a departure from the well-established methodology of proportionality analysis where one starts with the analysis of the nature of the right, which analysis is decisive for effective human rights protection. In our understanding of the principles established in earlier case-law, an assumption of existing public interest is neither to be equated with, nor to be necessarily seen as sufficient to establish, the pressing social need justifying restrictions to freedom of expression as guaranteed by Article 10.

I

4. Is a limitation of political speech or public interest speech in some way more “justifiable” because the restrictive measure is a general one? In the instant case the respondent Government argued in their Memorial that “[t]he Court should be particularly slow to conclude that the judgment of Parliament as to what was appropriate was outside its discretionary area of judgment for the United Kingdom when the approach it adopted has received the support of expert and independent bodies which have assessed the issue...”. They refer, among others, to the fact that “[t]he matter was debated in Parliament...and there was agreement in Parliament that in practice the ban could not be reduced in scope...” (paragraph 28 of the Memorial). This implies that general measures of Parliament should be treated with special respect, even in the context of Article 10 (or, for that matter, in the context of Articles 9 to 11). We beg to differ in light of our jurisprudence.

5. General measures have been considered in the context of three distinct areas. In the context of Article 1 of Protocol No. 1, in regard to economic and social policy, this Court is, in principle, deferential to legislation (regarding the purpose of the legislation). But it is in the context of the finding of the purpose of the applicable law (i.e. that it served a public interest, e.g. related to housing) that deference was paid to the “general measure” nature of the interference. Needless to say, there is a fundamental difference between the protection granted to possession of property and rights that are protected in Articles 9 to11: in regard to these rights, and to freedom of expression in particular, “general interest” or “public interest” as such are not recognized grounds for interference in the text of the Convention.

6. Outside of Article 1 Protocol 1, a degree of deference to general measures can be observed in the electoral context, where the Convention is clearly less categorical than in the Article 10 context and, consequently, because of the nature of the right at stake, a wider margin of appreciation was to be allowed to contracting States in determining the conditions under which the right to vote was exercised (see passim Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005 ‑ IX, and in particular §§ 60 and 62; see also Doyle v. the United Kingdom (dec.) no. 30158/06, 6 February 2007). But even here, general restrictive measures were accepted conditionally ( Ždanoka v. Latvia [GC], no. 58278/00, § 134-135, ECHR 2006 ‑ IV), if at all ( Hirst (no. 2) ): decisive weight was attached to the existence of a time-limit and the possibility of reviewing the measure in question ( Paksas v. Lithuania [GC], no. 34932/04, § 109, ECHR 2011 (extracts)). A general ban was held to be in violation in Hirst (no. 2) precisely because it did not allow individual consideration, which is exactly the situation in the present case (the fact that in Hirst (no. 2) there was no genuine parliamentary debate since the general measure was first enacted in 1870 was an additional reason for finding a violation).

7. There is also deferential reference to general measures in a few rather specific Article 8 cases. Thus, for instance, in Evans v. the United Kingdom [GC], no. 6339/05, ECHR 2007 ‑ I) the Court examined whether a regulation on in vitro fertilization struck a fair balance between individuals , not primarily because of the need to eliminate uncertainty, but because of the special challenge the legislature faced in weighing “entirely incommensurable interests” between two citizens (at § 89). The present case is not one of balancing between the incommensurable Convention rights of two individuals. As to Pretty v. the United Kingdom , no. 2346/02, ECHR 2002 ‑ III) the case concerned a right – the right to die – whose existence was contested, and it was in this context that the Court held that it was “primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created” (at § 74).

8. A general measure, especially if amounting to a total ban (but nonetheless limited in time and to a particular locality) was held legitimate where it was intended to ensure an even application of the law in that it aimed at the exclusion of any possibility for the taking of arbitrary measures against a particular exercise of the right to demonstrate (see Christians against Racism and Fascism v. the United Kingdom , Commission decision of 16 July 1980, DR 21). Nevertheless the then Commission made it clear that “[a] general ban of demonstrations can only be justified if there is a real danger of their resulting in disorder which cannot be prevented by other less stringent measures.” The acceptability of the measure in that case was unrelated to its source (legislative or administrative). Likewise, in Société de Conception de Presse et d’Édition and Ponson v. France (no. 26935/05, 5 March 2009) the restriction – a general legislative ban – was found proportionate to the purpose, but again the legislative origins of the ban were not a relevant consideration; what was relevant was the uncontested European consensus on a general ban in respect of tobacco advertisements (a matter, in any case, involving ab initio a lower level of scrutiny and a wider margin of appreciation because of the nature of the right involved). In other words the Court has repeatedly, expressly or implicitly, held that the fact that a restriction originated in a “general measure” was not per se a reason to depart from the application of the usual standards applicable to the expressions in question. In Murphy v. Ireland (no. 44179/98, ECHR 2003 ‑ IX (extracts)) the general ban (on advertisements directed to a religious end) was held to be justified because of past experience of unrest in the context of a highly divisive issue in Irish society, namely religious beliefs (§ 73).

9. In the instant case, as already adverted to in paragraph 2 above, the Court was confronted with a general ban on “political” advertisements in broadcasting. The fact that a general measure was enacted in a fair and careful manner by Parliament does not alter the duty incumbent upon the Court to apply the established standards that serve for the protection of fundamental human rights. Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT , a judgment which inspired a number of member States to repeal their general ban -- a change that was effected without major difficulties. As Judge Martens stated (dissenting): “A court should... overrule only if it is convinced ‘that the new doctrine is clearly the better law’. This condition is, of course based on the idea that in principle legal certainty and consistency require that a court follows its own established case-law; it should therefore overrule only when the new doctrine is clearly better than the old one...” [2] .

10. To conclude on this point, the fact that a ban originates in a general measure does not exempt that measure from a full analysis as to its compatibility with the requirements of Article 10 § 2. In the context of general prohibitive measures which border upon prior restraint (see Observer and Guardian v. the United Kingdom , 26 November 1991, § 60, Series A no. 216), the standards established in the context of freedom of demonstration apply also to the instant case: “Only if the disadvantage of such processions being caught by the ban is clearly outweighed by the security considerations justifying the issue of the ban, and if there is no possibility of avoiding such undesirable side effects of the ban by a narrow circumscription of its scope in terms of territorial application and duration, can the ban be regarded as being necessary within the meaning of Article 11(2) of the Convention” (see Christians against Racism and Fascism , already cited). As has already been adverted, there can be no double standards of human rights protection on grounds of the “origin” of the interference. It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission. Taken to its extreme such an approach risks limiting the commitment of State authorities to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention. Where the determination of the public interest and its best pursuit are left solely and exclusively to the national legislator, this may have the effect of sweeping away the commitments of High Contracting Parties under Article 1 of the Convention read in conjunction with Article 19, and of re-asserting the absolute sovereignty of Parliament in the best pre-Convention traditions of Bagehot and Dicey. The doctrine of the margin of appreciation, which was developed to facilitate the proportionality analysis, should not be used for such purpose.

II

11. The majority judgment seems to find, albeit indirectly, that the present ban serves a legitimate purpose, namely, the protection of the right of others (see paragraph 117 of the judgment). These rights of others are promoted through the institution of impartial and integral broadcasting, in the service of democracy. A situation whereby a powerful economic or political group in society is permitted to obtain a position of dominance over the audiovisual media and thereby exercise pressure on broadcasters and eventually curtail their editorial freedom undermines the fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive (see VgT (cited above), §§ 73 and 75, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 133, ECHR 2012). However, in the present case no single group was identified as posing such a threat, and the applicant is an NGO whose potential for dominance has in no way been demonstrated.

12. The general ban on “political” advertisements is problematic not only because, as already indicated, it borders upon prior restraint, but in view of the very doubt as to the usefulness for its purpose – there seems to be an inherent contradiction in a viable democracy safeguarded by broadcasting restrictions . Indeed, in our view, the general ban on “political” advertisements appears to be an inappropriately assumed positive duty of the State to enable people to impart and receive information. It is based on the view that powerful groups will invariably hamper the receipt of information by a one-sided information overload. Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to11, and especially in the context of Articles 9 to11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.

13. Not every issue is a head-to-head competition between wealthy actors and poor ones. The ban’s extent is such that it includes social interest advertising, even to the extent of preventing the airing of an advertisement calling attention to the genocide in Rwanda and Burundi (see R. v. Radio Authority Ex p. Bull and Another [1998] Q.B. 294). Entirely and permanently closing off the most important medium of communication to any and all advertised messages about the conduct of public affairs is a harsher constriction of freedom than is necessary in a democratic society. Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message. The assumption that a range of alternative media were available to the applicant NGO in this case is “illusory” given that radio and television are still the most influential (even if also the most expensive) media. The hope that Animal Defenders International will be able to make their views known thanks to “programming” disregards the reality that broadcasting, and television in particular, is driven by commercial advertising. Programming is a matter of editorial choice and is subject to the need to maximize viewership. Even in the context of public broadcasting, with all its obligations of fairness, there is a strong tendency to avoid divisive or offensive topics. Programming choices are not likely to stand on the side of NGOs which may represent minority or controversial views, or are critical of the Government of the day which has considerable control over public broadcasting, even in the presence of important safeguards as to daily programming.

14. There can be no robust democracy through benevolent silencing of all voices (except those of the political parties) and providing access only through programming. A robust democracy is not helped by well ‑ intentioned paternalism. Where there is little scope for restriction of a right, the proportionality analysis requires consideration of the existence of less restrictive alternatives. An individualised consideration of the proposed advertisement, for example like the one that operates for commercial advertisements, is one such possibility. A narrower definition of political advertisement could be another. Moreover, the respondent Government did not consider the difference between public and private broadcasting, which have different standards of impartiality. The disregard of less restrictive alternatives is surprising, given relevant European experience to the contrary.

15. The majority judgment invokes the lack of European consensus on how to regulate paid political advertising as an additional ground for considering that in this case the margin of appreciation of the respondent State should be broader than the norm (see paragraph 123 and contrast with paragraph 104). However, it is quite clear that there is a considerable problem as to what State practice should be taken into consideration, if at all, as relevant for the assessment of the existence of a European trend or even binding practice. The material cited in Part D of the chapter dealing with Relevant Domestic Law and Practice (in effect paragraphs 68 to 72) provides examples concerning mostly the regulation of advertising of and by political parties politicians and within the context of electoral legislation. Practically the only observation that is strictly relevant to our case is the comment in the ERPA study which states: “In many (Western) European countries, the most burning topic at present seems to be ‘issue advertising’, i.e. messages with a political end emanating from organisations which are not political parties, such as interest or societal groups” (see paragraph 69). We consider that this comparative law material, which deals primarily with the regulation of political party advertising, cannot serve as an appropriate basis to accord the respondent State a wide margin of appreciation in what is essentially a freedom of expression case in which a public interest group proposes an issue of public interest for general discussion. We are perplexed with an approach which attempts to justify for the purposes of the Convention a severe restriction on freedom of expression by reference to a variety of regulatory frameworks which do not specifically address the issue under examination. Even if – which we do not for a moment believe should be the case – one were to give some weight to the alleged lack of consensus, in the presence of an uncontested Convention right (and unlike in those Article 8 cases where the scope or extent of privacy rights is the issue) the lack of European consensus cannot justify a departure from established standards of what is a pressing need in a democratic society. Nothing has been shown in this case to suggest that the state of democracy in the United Kingdom requires, by way of a “pressing need”, the wide ban on paid “political” advertisements that is in issue here; or that the said democracy is less robust than in other States parties to the Convention and cannot afford risk-taking with “issue-advertising”. On the contrary, tradition and history force one to assert the very opposite.