Policing political speech: when is it legitimate to restrict freedom of expression?

16 May 2012

Political speech is fundamental to democratic society, helping members of the public to form political opinions and participate in the democratic process. But what is political speech? And what restrictions can be placed on it?

The High Court grappled with these questions in the recent decisions of R (Calver) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) and R (London Christian Radio Ltd and Anor) v Radio Advertising Clearance Centre [2012] EWHC 1043 (Admin).

In Calver, Malcolm Calver, a Councillor in South Wales, was found to have breached his Council’s Code of Conduct by posting sarcastic and mocking comments on his blog about the way Council meetings were run and about his colleagues’ competence. One of his more colourful comments referred to the Council as, 'living in a land of secrecy with many skeletons in the cupboard'. The Standards Committee hearing his case held that his conduct brought the Council into disrepute, a decision upheld by the Adjudication Panel for Wales. Mr Calver challenged this decision arguing that it breached his right to freedom expression under Article 10 of the Convention.

The decision in London Christian Radio Ltd scrutinised the Radio Advertising Clearance Centre’s (‘the RACC’) refusal to clear London Christian Radio’s advertisement for broadcasting because it infringed the prohibitions on political advertising set out in ss 319 and 321 of the Communications Act 2003 (‘the 2003 Act’). The advert asked for information from listeners about marginalisation of Christians in the workplace, stating that it was, ‘seeking the most accurate data to inform the public debate’ and to, ‘help make it a fairer society’.

London Christian Radio argued that its advert was not political and did not fall within the statutory ban on political advertising, but that if it did, the ban infringed its rights under Article 10. In contrast, in Calver, the argument was that Mr Calver’s speech was political and attracted enhanced protection under Article 10.

Where is the line drawn to be drawn? In each case the High Court had no difficulty deciding that the speech content of the blog and advert was political speech. In Calver it accepted that sarcasm and lampooning of those who place themselves in political office – particularly where it concerns performance of public duties – was “political expression”. In London Christian Radio Ltd, because the information sought by the advert was to be used to try to make changes in society, it also fell well within the definitions of ‘political nature’ and ‘political ends’ contained in the 2003 Act.

The key question in both cases was the extent to which political speech can be restricted. In other words were the decisions of the Adjudication Panel for Wales and the RACC justified under Article 10(2) as being necessary in a democratic society?

The answer in Calver was, ‘no’. Although it is legitimate to censure Councillors for expressing themselves in a way which fails to comply with their ethical frameworks, the decision by the Panel that Mr Calver’s blog broke the Code was disproportionate. According to the court, the strength of the right to political expression was critical, and although his comments were ‘unattractive’, it was directed at other Councillors in a political context and was not simply personal abuse.

More controversial is the decision in London Christian Radio Ltd, where the court considered that the restrictions on political advertising contained in the 2003 Act were justified. The court following in the footsteps of the House of Lords in R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] 1 AC 131, held that the ban on political advertising was justified because of the necessity of protecting the public from partial political advertising; the so-called mischief of partial advertising is that it enables the power of the purse to enhance the prominence of the interests of well-endowed groups and political parties.

It is this rationale which is controversial – if the public can be trusted with political adverts in the press or on bill boards, why can’t it be trusted with advertisements on radio and television? Isn’t the notion that the public needs to be protected from broadcast advertising patronising? Proponents of paid for television advertising go even further and argue that it allows direct access to the electorate and helps the ‘unknown to become known’.

On the other hand, the arguments against paid for broadcast adverts are powerful still; looking at the American experience, political advertising on television is almost a financial arms race and funding is critical to political survival. The problem here is that the individuals and interest groups who make donations may be able to influence policy and have the power to threaten the independence of the executive.

The debate does not end here; the judgment of the Grand Chamber of the European Court of Human Rights is now pending following the hearing of an appeal in the Animal Defenders case on 7 March 2012 and these competing arguments will no doubt resurface.

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