CONCURRING OPINION OF JUDGE JEBENS

1. I agree that the imposition of a fine on TV Vest because of its broadcasting of political advertisements for the Pensioners Party violated Article 10 of the Convention. My finding of a violation is, however, not based on the prohibition of political broadcasting on television as such, but on the particular context in which it was applied in the present case, namely the Pensioners Party ' s general lack of access to the medium of television broadcasting.

2. My starting point is that political speech is at the very centre of the right to freedom of expression, protected by Article 10 of the Convention. The Court ' s case-law confirms this, by leaving little room under Article 10 § 2 for the Contracting States to put restrictions on political speech (see, for instance, Lingens , cited in the judgment). However, in order to ensure that political elections reflect the opinion of the people, it may be necessary to impose some restrictions as to which means should be allowed for the transmission of political messages. The right to freedom of expression in Article 10 must therefore be considered in the light of the right to free elections protected by Article 3 of Protocol No. 1 to the Convention (see Bowman , cited in the judgment).

3. On the basis of such considerations, I fail to see why restrictions on paid political advertisements could not be acceptable under Article 10, provided that political parties and interest groups are otherwise afforded reasonable access to the media. It should be noted that neither the Vgt case nor the Murphy case (both cited in the judgment), concerned advertisements for political parties. The fact that the Court reached different conclusions in the two cases illustrates the variety of situations in this field, which calls for individual solutions. It would therefore, in my opinion, seem to be of little value to compare the present case with either of those two cases with the aim of finding the right solution. The correctness of taking an individual approach with regard to political advertisements is confirmed by the Court ' s case-law ; see, for instance, paragraph 75 of the Vgt judgment, where the Court stated that a ban on political advertisements might be compatible with Article 10 in certain situations, provided that it was based on grounds that met the requirements in paragraph 2 of Article 10.

4. Turning to the present case, it should be noted firstly that the prohibition laid down in section 3-1(3) of the Broadcasting Act was limited to political advertising on television. The rationale for the prohibition was that such advertising was likely to reduce the quality of political debate by distorting complex issues, taking into account the powerful and pervasive impact of television. It thus transpires that the prohibition was meant to secure pluralism and quality in the political debate. Another important consideration was to prevent financially powerful groups from dominating the political forum, by being able to buy airtime on television which other, less powerful groups, could not afford. Furthermore, and in line with this, the prohibition was aimed at securing the political independence of the television broadcasters.

5. The reasons outlined above are in my view clearly relevant with respect to Article 10 § 2. Bearing in mind that the Contracting States should have a certain margin of appreciation when balancing the right to freedom of expression against the need to secure free elections, the prohibition on political advertising could not in itself be said to create a violation of Article 10 of the Convention.

6. However, when assessing whether the above restriction met the requirement of being necessary in a democratic society in the sense of Article 10 § 2, a broader evaluation is called for. It should be noted in this respect that Norway , according to the survey by the ERPA (see paragraph 24 of the judgment) had failed to regulate party political broadcasts, unlike the majority of European States. As a consequence, it was for the broadcasters ' editorial staff to decide whether to give political parties the possibility of presenting themselves to the electorate. I agree with the applicants that the lack of rules which could have secured political parties access to television is highly relevant when determining the scope of the State ' s margin of appreciation.

7. Turning to the Pensioners Party ' s situation, it is important to note that, according to information provided after the public hearing, it was granted very sparse coverage on television prior to the local and regional elections in 2003. It is revealing that, while the Pensioners Party was mentioned several times on Norwegian television channels in connection with the legal action brought by TV Vest concerning the legality of the fine imposed for a breach of the ban on advertising, the party was given no coverage at all with respect to its politics. Nor were any of its members invited to political debates on television. Thus, the prohibition of political advertising on television prevented the Pensioners Party from availing itself of its only opportunity to have access to the most important forum for communication of ideas, and placed the party at a disadvantage, compared with the established political parties in Norway .

8. This, furthermore, shows that the restriction on advertising not only interfered with the right to freedom of expression, but was also not in harmony with the need to secure pluralism in editorial coverage of political campaigns. I refer in this connection to “the obligation to cover electoral campaigns in a fair, balanced and impartial manner in the overall programme services of broadcasters” (see the Appendix to Recommendation No. R (99) 15 of the Committee of Ministers to member States, on measures concerning media coverage of election campaigns).

9. For the reasons explained above, I conclude that the restriction of the right to freedom of expression in the present case was not proportionate to the aims pursued. The interference was therefore not necessary in a democratic society, for which reason there has been a violation of Article 10.