DISSENTING OPINION OF JUDGE TULKENS, JOINED BY JUDGES SPIELMANN AND LAFFRANQUE

(Translation)

1. I do not share the majority’s position that there has not been a violation of Article 10 of the Convention in this case. On the contrary, numerous factual and legal elements lead me to conclude that there has been a breach of this provision.

2. The applicant NGO challenged the legal prohibition on radio and television broadcasting of paid political advertising. In the present case, it was refused authorisation, pursuant to section 321(2) of the Communications Act of July 2003, to screen a television advertisement concerning animal protection on account of its “political” status.

3. For the purposes of determining whether the uncontested interference in the right to freedom of expression was necessary in a democratic society, the central issue is the proportionality of the disputed ban.

4. The backdrop to this case is the sensitive issue of the scope of the margin of appreciation. While Article 10 does not prohibit prior restrictions on freedom of expression as such, the dangers posed by restrictions of that kind for a democratic society are such that they call for the most careful scrutiny on the part of the Court (see Editions Plon v. France , no. 58148/00, § 42, ECHR 2004 ‑ IV). For those reasons, the margin of appreciation to be granted to the State in the present context is a narrow one.

The scope of the review

5. As the judgment notes (paragraph 106), the parties to this case accepted that political advertising could be regulated by a general measure and they disagreed only on the breadth of the measure chosen. Indeed, the Court has accepted that a State can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case, even if this might result in individual hard cases (see Ždanoka v. Latvia [GC], no. 58278/00, §§ 112-115, ECHR 2006 ‑ IV).

6. In exercising its supervisory jurisdiction, the Court must confine its attention, as far as possible, to the concrete case before it. However, in determining the proportionality of a general measure, it may be useful to assess the legislative choices underlying it (see, mutatis mutandis , James and Others v. the United Kingdom , 21 February 1986, § 36, Series A no. 98). The quality of the parliamentary and judicial review conducted at national level is also of importance, including to the application of the relevant margin of appreciation (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 128, ECHR 2003 ‑ VIII; Murphy v. Ireland , no. 44179/98, § 73, ECHR 2003 ‑ IX (extracts); Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 78-80, ECHR 2005 ‑ IX; Evans v. the United Kingdom [GC], no. 6339/05, § 86, ECHR 2007 ‑ I; Dickson v. the United Kingdom [GC], no. 44362/04, § 83, ECHR 2007 ‑ V). That being so, it is also clear from the Court’s case-law that the manner in which the general measure is applied to the facts of the case remains illustrative of its impact in practice and is thus material to its proportionality (see James and Others , cited above, § 36).

7. It follows, as the judgment points out (paragraph 109), that the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case under examination (see, for example, Murphy , cited above, and TV Vest AS and Rogaland Pensjonistparti v. Norway , no. 21132/05, ECHR 2008 (extracts)).

8. In the instant case, the Government justified the contested measure by, in particular, the need to protect the electoral process as part of the democratic order, and they relied in this respect on Bowman v. the United Kingdom (19 February 1998, Reports of Judgments and Decisions 1998 ‑ I), in which the Court accepted that a statutory control of the public debate was necessary given the risk posed to the right to free elections. For its part, the applicant NGO contested the relevance of that argument as it concerned a restriction which only operated prior to and during elections. In so far as the prohibition in question is not limited to electoral periods, I find that the Bowman judgment and reasoning based on the State’s concern to protect the electoral process are of little bearing in this case (see TV Vest , cited above, § 66).

9. I can agree that the Government and the applicant NGO both have the same objective, namely the maintenance of a free and pluralist debate on matters of public interest and, more generally, contributing to the democratic process (paragraph 112 of the judgment). In assessing the measure, it is therefore necessary to take into account, on the one hand, the applicant’s fundamental right to impart information and ideas of general interest which the public is entitled to receive, and on the other, the authorities’ desire to protect the democratic debate and process from distortion by powerful financial groups with advantageous access to influential media. Such groups could indeed obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate, of which the State remains the ultimate guarantor. Some regulation of the public-interest debate broadcast on radio and television can therefore be necessary within the meaning of Article 10 § 2 of the Convention. While both the VgT and TV Vest judgments expressly accepted that principle, the Court concluded in both of those cases that the operation of the prohibitions on advertising at issue was disproportionate. In the case before us, was the contested prohibition necessary , having regard to its objective? I do not believe so.

Assessment of proportionality

10. The prohibition in question was specifically circumscribed to address the precise risk of distortion the State sought to avoid. Accordingly, it only applies to advertising, given its inherently partial nature ( Murphy , cited above, § 42), to paid advertising given the danger of unequal access based on wealth, and to political advertising (as the term is defined in paragraph 99 of the judgment). In addition, it is confined to certain media (radio and television), the legislature’s choice in this matter being based on the understanding that they constitute a cornerstone of the regulatory system at issue and are the most influential and expensive media.

11. Referring to paragraph 77 of the VgT judgment, the applicant NGO rightly submits that limiting the prohibition to radio and television was illogical, given the comparative potency of newer media such as the Internet and that a distinction based on the particular influence of the broadcast media was not relevant. I share this perspective. Information obtained through the use of the Internet and social networks is gradually having the same impact, if not more, as broadcasted information. Their development in recent years undoubtedly signals a sufficiently serious shift in the influence of traditional broadcasting media to undermine the need to apply special measures to the latter.

12. Although the ban was drawn up in such a way as to correspond strictly to the aim pursued, the fact remains that it has an exceptionally wide scope. Any paid advertising is prohibited if it concerns “political” subjects or is issued by a body whose objects are “wholly or mainly of a political nature”, irrespective of the identity or function of that body, and whatever the subject matter in question. The term “political” is construed so widely that it applies to the majority of matters of public interest (section 321(2)3 of the 2003 Act). Before the High Court, Judge Ousley found that it covered “a continuum of political activity and intensity from party political activity at election time to the pursuit by non-political bodies at any time of particular interests of public concern”, while, before the House of Lords, Lord Scott emphasised the “remarkable” width of the ban (paragraphs 13 and 27 of the judgment). Furthermore, the measure applies to all television and radio broadcasters - whether national or local, whether public-service or independent. In this sense the prohibition is wider than that which was considered excessive in VgT (cited above), so that the present judgment is, in my opinion, incompatible with that previous case-law.

13. Further, the ban is applied indiscriminately. In practice, this is a ban which concerns the most protected form of expression (discussion on matters of public interest) by one of the most important categories of actors in the democratic process (an NGO) and a form of media which remains influential (radio and/or television), without the least exception.

14. Admittedly, the fact of allowing political parties free broadcasting time for disseminating political and electoral messages and messages related to referenda campaigns eases the prohibition in a controlled way in respect of such parties, which are clearly essential in a democratic society. However, this relaxing of the ban does not in any way affect other important actors in public debate and the democratic process, including, in particular, NGOs, the category to which the applicant in this case belongs.

15. . In addition, this wide-ranging prohibition flies in the face of the trend observed in other Contracting States. While prudence is clearly necessary in comparing the rules governing advertising, given the lack of a precise definition of the term “political” in the various legal systems and the diversity of national traditions, what is important is that it is clear that regulations in Europe have developed to a point where the respondent State is now one of the few which still apply such a comprehensive ban, combining the three factors of a wide definition of the term “political” (applied to both the message and the advertiser), no temporal limitations and no room for exceptions.

16. Moreover, neither the legislative bodies which defined the prohibition nor – in particular – the domestic courts which examined it provided sufficient reasons to justify interference of such an unusual scope. More specifically, they did not put forward convincing arguments for rejecting the less restrictive solutions which exist in the majority of other Contracting States, which is, in my opinion, the key issue. This is merely a reminder of the principle, now well established in the Court’s case-law, by which “in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned” (see Glor v. Switzerland , no. 13444/04, § 94, ECHR 2009).

17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant. The less restrictive options envisaged were dismissed in general terms on the ground that they would be potentially “difficult” to apply without arbitrariness (paragraphs 43-54 of the judgment). In spite of the adoption in 2001 of the VgT judgment, which the relevant Minister and the majority of the parliamentary bodies recognised as indicating that the prohibition was likely at a subsequent date to be considered incompatible with the Convention, and in spite of the increasing exceptional nature of the contested prohibition in comparison to the rules applied in other Contracting States, the Government were not able to refer to any expert report which examined whether there existed other practical solutions enabling both the scope of the prohibition to be reduced and its objectives to be conserved (see Hatton and Others , cited above, § 128), which consisted, in particular, of guaranteeing genuine pluralism ( Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 129-134, ECHR 2012).

18. Finally, the seriousness of the consequences for the applicant of enforcement of the contested prohibition is, in my opinion, of greater weight than the justifications put forward in support of this general measure (see paragraph 8 above). Specifically, the applicant is an NGO which campaigns against the use of animals for commercial, scientific or leisure purposes. It seeks to influence public opinion in order to obtain a change in legislation and public policy in this area, its ultimate goal being to prevent animal suffering. The advertisement which it wished to have broadcast was intended to raise awareness of the issue of animal ill-treatment. It was on account of those aims, held to be “wholly or mainly of a political nature” (section 321(2) of the 2003 Act), that the BACC (Broadcast Advertising Clearance Centre) refused it authorisation to have the advertisement screened, in direct application of the contested ban.

19. The ban was thus applied independently of the content of the message: no matter that the latter drew the public’s attention to a matter of public interest (the ill-treatment of animals) and that no one had suggested that it was in any way shocking or reprehensible. The ban was also applied independently of the advertiser’s identity: no one had claimed that the applicant NGO was a financially powerful body with the aim or possibility of endangering the broadcaster’s impartiality or unduly distorting the public debate, or that it served as a smokescreen for such a group. All that it wished to do was to take part in a general debate on animal protection. To illustrate the scale of the ban’s effect in the applicant NGO’s case, one need only compare its situation to that of a commercial firm: the latter would have had full freedom, limited only by its financial resources, to screen advertisements using animals to promote its products, an approach directly contrary to the values of the applicant NGO.

20. In consequence, the reasons put forward by the domestic authorities to justify the ban on the applicant NGO from screening its advertisement are, in my opinion, insufficient. It follows that this prohibition amounted to a disproportionate infringement of the applicant’s right to freedom of expression, and I conclude that there has been a violation of Article 10 of the Convention.

[1] See Griffith, J. A. G., The Politics of the Judiciary Fontana Press (Hammersmith, London), 1997, 5 th ed., p. 342.

[2] See Cossey v. the United Kingdom (Plenary), 27 September 1990, para. 5.2, Series A no. 184. See also Bayatyan v. Armenia [GC], no. 23459/03, § 98, ECHR 2011.