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UK political broadcast ad ban upheld

By Steven | March 31, 2008

In NZ, we ban the broadcast of election ads, except for those paid for out of the broadcasting allocation. That means a pot of about $3 million of public money gets divvied up between the parties (along with a bit of free air time that some publicly minded stations throw in) – and that’s the only election advertising allowed to hit the airwaves. Issue ads – that don’t encourage us to vote one way or another or support a candidate – are allowed.

The rationale: broadcast ads are so potent and so expensive (and, perhaps, so capable of providing distortion and manipulation) that it’s in the interests of democracy that important political debate shouldn’t be skewed in favour of those who can afford to pay for ads.

Given the importance of political speech, I’ve sometimes wondered whether this ban is justified under the NZ Bill of Rights Act. Of course, our Bill of Rights doesn’t override other laws. But it may well be possible to have a judge rule on the question of consistency. And inconsistencies are supposed to be flagged to Parliament before laws are passed. That didn’t happen here, because the ban was passed before the Bill of Rights Act.

I’m torn about this. Such speech is of vital importance, and ought not to be restricted without very good justification. But the current law avoids the sort of saturation of the airwaves by misleading negative ads that’s endemic to US politics.

Well, now I have an answer, of sorts. An ad ban is a justified limitation on freedom of expression. In fact, an ad ban against the television broadcast of any political ad (including a political ad aimed at “influencing public opinion on a matter which… is a matter of public controversy) is justified. That’s the law in the UK. And it was upheld this month by the House of Lords, in a case involving an animal rights group that wanted to broadcast an ad about endangered primates.

Here’s the key paragraph, from Lord Bingham:

The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

This conclusion rather flies in the face of a European Court of Human Rights decision, so there’s an interesting potential clash coming up.

It is founded on a belief in the importance of the ban, a degree of defence to Parliament, and a finding that it’s impractical to draw a narrower distinction, banning (say) ads for political parties but not issue ads, as NZ has done.

Needless to say, this decision would not fly in the US. I wonder whether even Canada would buy it. To me, it seems long on deference and short on evidence, for all that I have some sympathy for the reasoning.

[In addition, as Graeme Edgeler has noted, there are a couple of ways in which the UK ban may be more justified than NZ’s rules. First, it only applies to TV and not radio. Second, the way NZ’s ad-spending money is divvied up creates a bias in favour of the big parties, which get the biggest share,  and consequently caps the little parties’ spending at low and unequal levels.]

An aside: any second thoughts from all those who opposed NZ’s dumping of the Privy Council (which has the same judges as the House of Lords) because their judges were better and more able to protect our rights than ours?

Topics: Electoral speech, Free speech theory, NZ Bill of Rights Act | 43 Comments »

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