EHRM, 11-12-2008, nr. 21132/05

The applicants maintained that the existence of an absolute prohibition of political advertising on television combined with the absence of rules providing for party political broadcasts had had the effect that the Pensioners Party had been prevented from communicating directly with its electorate on television. The absolute prohibition was neither supported by sufficient reasons nor proportionate to the aims pursued.

They submitted that in Norway political advertising was allowed without any limitation in all media other than television and that no weighty reasons could justify such different treatment of television broadcasting.

The broadcast advertisements had focused on the Pensioners Party's core values and did not contain any statements that could reasonably be viewed as distorting or reducing the quality of political debate.

The Pensioners Party was a small political party, without powerful financial means or support from strong financial groups. It seldom received any coverage in editorial television broadcasting and thus had a real need to establish direct communication between itself and the electorate.

This need had been especially pressing, since, unlike the situation in many other European States, including the United Kingdom, there was no system of party political broadcasts providing for free airtime with a possibility for political parties to present their statements directly to the electorate. As confirmed by the survey conducted by the ERPA Secretariat (see paragraph 24 above) Norway was one of very few Contracting States that not only prohibited political advertising on television but also failed to regulate party political broadcasts, which was important to bear in mind in determining the scope of the margin of appreciation. This state of affairs in effect meant that political speech on television was channelled through broadcasters' editorial staff functioning as gate keepers. Such a regulation favoured established political parties and established politicians, while small political parties such as the Pensioners Party suffered and were in fact prevented from gaining efficient access to public space through television. A total ban on all forms of political advertising on television had an opposite effect to that of creating an equal playing field between the political parties.

As shown by the ERPA Survey, many countries had been able to regulate paid political advertising by less stringent means than an absolute prohibition. This cast doubt on the Government's argument that a prohibition was the only possible way of achieving the legitimate aims pursued. The Government's contention that a finding of a violation of Article 10 in the present case would affect important aspects of Norwegian democracy, such as the structure and size of political parties, party financing and the conduct of election campaigns, was unsubstantiated.

Since the instant case concerned the publication of political speech for a political party before a political election, the speech at issue fell within the core protection area of Article 10 of the Convention. Whereas in the above cited VgT judgment the Court had applied a strict margin of appreciation relating to speech of ‘general interest’, an even stricter standard should be applied to political speech emanating from political parties. Unlike the finding in the Murphy judgment, there were no country-specific sensitivities in the instant case that could justify a special margin of appreciation or relevance being given to the potency and pervasiveness of the broadcasting media.

The applicants did not dispute that the lack of European consensus could be a relevant factor when determining the extent of the Contracting States' margin of appreciation. However, this was only one of many factors to be taken into account. The Court's Article 10 case-law, notably that relating to defamation, illustrated that a lack of consensus had not prevented it from applying a narrow margin. Both the VgT and the Murphy judgments showed that it was the nature of the speech in question which was decisive for the scope of the margin and that it was narrow in the area of political speech.

In asserting that it had a wide margin, the majority of the Supreme Court had only made reference to general circumstances that obtained in some of the Contracting States. While the Supreme Court had held that considerable weight should be given to Parliament's decision to prohibit political advertising, it was wrong to consider that a political majority at any given time should be given a wide margin of appreciation when it came to regulations governing the political process. As rightly stressed by the dissenting member of the Supreme Court, the core idea behind fundamental free speech protection was to protect a political minority against being subjected to free speech restrictions imposed by the majority.

As a result of its erroneous approach, considering that Parliament's opinion on the matter should prevail unless it appeared unfounded or lacking in objectivity, the Supreme Court had failed to examine the necessity of the prohibition in the concrete circumstances of the case.

In the light of the above, the applicants submitted that the reasons relied on by the Supreme Court were not sufficient, nor proportionate, to justify the interference as being necessary in a democratic society.

The case did not primarily engage the protection of freedom of expression but first and foremost the integrity of the democratic process and specifically the public's — the voters'-right to fair democratic elections, a right protected by the Universal Declaration of Human Rights and the First Protocol to the Convention. The very essence of democracy was fair elections in which all parties could compete on an equal footing without anyone being able to buy an undue advantage in the form of television advertising.

At issue in this case was political advertising in the strict sense: advertisements by a political party in an election period, aimed at influencing the outcome of the elections. It struck at the core of the prohibition in section 3-1(3) of the Broadcasting Act. The impugned prohibition was limited to television advertising owing to the powerful and pervasive impact of this medium. Since no such restrictions applied with regard to other media, the prohibition had limited consequences for freedom of expression. A number of much used and effective alternatives for political advertising were available, such as the print media, radio, the Internet, billboards, leaflets, and so on.

The prohibition of political advertising on television was not in any way aimed at restricting political speech or debate on questions of public interest. Its purpose was to guarantee political expression by ensuring fairness and equality, as well as preserving the quality of political debate. Such advertising would typically be conveyed without opposition, correction or filtering in the form of critical journalism and would have a distinctly partial objective. It would often paint a manufactured picture of the candidate and his political message, not unlike the tone or substance frequently found in propaganda in totalitarian regimes. The possibility of advertising on television would clearly benefit the wealthier and/or established interests in society. There was thus a need to avoid de facto discrimination, distorting democratic processes in favour of the wealthy and powerful.

The prohibition ensured the political impartiality of television broadcasting. It also had the effect of limiting the total amount of money spent on election campaigns by political parties and interest groups, reducing their dependence on wealthy donors and ensuring a level playing-field in elections. The prohibition was aimed at supporting the integrity of the democratic process, to obtain a fair framework for political and public debate, and to avoid a situation where those who could afford it obtained an undesirable advantage by using the most potent and pervasive medium. The right to freedom of expression had therefore to be considered in the light of the right to free elections provided by Article 3 of Protocol No. 1 to the Convention. The Norwegian prohibition, like those in several other Contracting States, was aimed at securing the ‘free expression of the opinion of the people in the choice of the legislature’. The prohibition thus achieved a very important aim for democracy.

The question at issue was inevitably interlocked with the framework for the Norwegian democratic electoral process. A negative outcome of this case would affect important aspects of Norwegian democratic society, such as the structure and size of political parties, political parties' financing and how the election campaigns were carried out. This also militated in favour of a wider margin of appreciation, as held by the Court, inter alia, in Bowman v. the United Kingdom (19 February 1998, § 43, Reports of Judgments and Decisions 1998-I).

In Norway the elected representatives had found it highly necessary only to prohibit political advertising on television, which undoubtedly was a unique medium with regard both to its pervasiveness and to the resources necessary to purchase airtime. As pointed out by the Court in Murphy (cited above, § 69) the potential impact of the medium of expression concerned was an important factor in the consideration of the proportionality of an interference. The Court had acknowledged that account ought to be taken of the fact that the audio-visual media had a more immediate and powerful effect than the print media. Reference could also be made to the Council of Europe's recommendation No. R (99) 15 on ‘Measures concerning media coverage of election campaigns’, where the Committee of Ministers had emphasised ‘the need to take into account the significant differences which exist[ed] between the print and the broadcast media’. Hence, based on this commonly acknowledged premise, the question before the Court was whether there was a pressing social need to prohibit political advertising on television in Norway.

The general existence of such a pressing social need was clearly illustrated by the fact that numerous Contracting States had found it necessary to ban all political advertising on television.

Whilst the applicants implied that an exception from the ban should be made for parties or groups with little means, this approach was unsustainable. As the Court had recognised in the Murphy case with respect to religious advertising, a case-by-case approach would be difficult to apply fairly, objectively and coherently; thus a total ban would generate less discomfort than by filtering the amount and content of expression by such groupings. Nor would limitations on duration and frequency of advertising and/or on related expenditures guarantee equality of arms to the same extent as an absolute ban. Apart from the difficulties involved in defining limits that were fair, circumventing them would be easy and ensuring their effective implementation when it really mattered, in the run-up to an election, would be problematic. Transgressions could always be discovered later but after the elections it would be too late.

In the view of the Government, the national elected, representative bodies were better equipped than national courts to evaluate the relevant pressing social needs, particularly as the aim of the prohibition was to secure the integrity of the national democratic process. This was even more true with regard to an international court with further distance from and less knowledge of the functioning of the democracy in the State in question. National parliaments were in direct and continuous contact with the vital forces in their countries in this respect. What was more, securing and promoting democracy was a core responsibility for the elected representatives in the Contracting States.

The Norwegian prohibition had been thoroughly assessed on several occasions, most recently in May 2006, by the Government and by Parliament, which had found it to be a necessary measure for preserving central elements of Norwegian democracy. The Government invited the Court not to adhere to its findings in its VgT judgment, which was unclear and based on the specific facts of that case and in any event distinguishable. Rather, it should follow the general reasoning in its Murphy judgment and, in particular, its approach in Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, Series A no. 113) and Bowman v. the United Kingdom (cited above, § 43) in relation to Article 3 of Protocol No. 1.

There was no uniform European conception of the requirements of the protection of the rights of others in relation to broadcasting political advertisements on television. Nor was there any legislative consensus as to the need to single out broadcast, as distinct from non-broadcast, political advertising for special regulation, whether within or outside an election period. There was no given solution to the issue of political advertising as indeed the differences throughout Europe showed. Every country had its history and traditions and this might lead to different views on the necessity of a ban. According to the Court's case-law, the Contracting States should therefore enjoy a wider margin of appreciation in regulating such advertisements.

The Irish Government supplied information relating to the Irish legislative framework, notably about the application of section 10(3) of the Radio and Television Act 1988, which had been at issue in the above-mentioned Murphy case and which read as follows:

Referring to the Irish Supreme Court's rulings in Murphy v. IRTC ([1999] 1 IR 12) and Colgan v. IRTC ([2002] IR 490), the Irish Government submitted that where the prohibition on religious and political advertising stemmed from the same or similar concerns regarding sensitivities as to divisiveness and offensiveness, it was inappropriate to apply differing margins of appreciation. This was particularly so as the dividing line between political and religious advertising was not always clear, as the decision on abortion in the Colgan case demonstrated. Consequently, the Irish Government invited the Court to apply a wide margin of appreciation equally to political advertising, preferring the Murphy approach to that followed in VgT. Furthermore, the Court's acceptance in Murphy that a filtering process was inappropriate and that a blanket prohibition was preferable was a better approach than that followed in VgT, where it had held that a prohibition on political advertising might in certain situations (though not in the VgT case) be compatible with Article 10.

The United Kingdom Government provided information about the legal position in the United Kingdom, where political advertising had been prohibited on radio and television by all legislation since the Television Act 1954 first created commercial television. When enacting the Communications Act 2003, Parliament had taken the view that it was important to maintain the prohibition because:

The UK Government invited the Court ‘to confine VgT to its factual circumstances or alternatively to depart from its reasoning’. In that case the Court had rejected without explanation or analysis the contention that the potency and pervasiveness of the broadcast media justified special restrictions on political advertising not applicable to other media. The Court had also omitted to take account of the significance of the availability of alternative means of allowing the applicant to pursue its political objectives. Nor had it addressed the point that advertising could damage the impartiality of the broadcaster — an argument which it had accepted in Murphy with respect to religious advertising. The Court appeared to have misunderstood the justification for a ban on political advertising, namely the fact that such a ban could not distinguish between different groups by reference to the power, funds or influence which they happened to have at a particular time. The legislature was entitled to conclude that there was no workable basis for such a partial prohibition. Nor had the Court addressed, far less answered, the point that the legislature was seeking to protect a fundamental interest of a democratic society: that political debate and the political process should not be altered by those who were able and willing to spend large sums of money propagating their political views through the potent medium of broadcasting. In Bowman, the Court had recognised this as a legitimate aim which could justify restrictions on freedom of political speech. In VgT the Court had also omitted to refer to the fact that Switzerland was far from an isolated example of a State with legislation prohibiting the broadcasting of political advertising when such restrictions were not applied in other media.

Like Bowman, the present case did not simply concern restrictions on political speech; it concerned a balance between freedom of expression for political speech and the need to preserve the integrity of the democratic process in the public interest, a matter in which the State had a margin of appreciation. In any event, there was no clear distinction in this context between religion and morals, on the one hand, and politics on the other.

The UK Government submitted a copy of a judgment handed down by the House of Lords on 12 March 2008 ([2008] UKHL 15) dismissing an appeal by Animal Defenders International, finding that the prohibition on the broadcasting of political advertising in the UK under the Communications Act 2003 was consistent with Article 10 of the Convention.

The test of ‘necessity in a democratic society’ requires the Court to determine whether the ‘interference’ complained of corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a ‘need’ exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.

In this connection, according to the Court's case-law there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Lingens v. Austria, 8 July 1986, §§ 38 and 42, Series A no. 103; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 45, Reports 1998-I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 46, ECHR 1999-VIII; Vgt Verein gegen Tierfabriken, cited above, § 66; and Murphy, cited above, § 67).

Moreover, the Court has held that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference. The Court has acknowledged that account must be taken of the fact that the audio-visual media have a more immediate and powerful effect than the print media (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Murphy, cited above, § 69).

It should also be pointed out that in the above-mentioned Bowman judgment, concerning certain electoral law limitations on pre-election expenditure, the Court held (see paragraph 41) that in such a context it was necessary to consider the right to freedom of expression under Article 10 in the light of the right to free elections protected by Article 3 of Protocol No. 1 to the Convention, which provides:

Moreover, in that case the Court held as follows:

In sum, the Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).

Turning to the particular circumstances of the instant case, the Court observes at the outset that the disputed decision by the Media Authority of 10 September 2003 to impose a fine on TV Vest was taken on the ground that TV Vest had broadcast political advertisements for the Pensioners Party in breach of the prohibition of political advertising on television laid down in section 3-1(3) of the Broadcasting Act. The prohibition was permanent and absolute and applied only to television, whilst political advertising through all other media was permitted.

The impugned advertisements consisted of a short portrayal of the Pensioners Party and encouraged viewers to vote for the Party in the forthcoming elections. Irrespective of the fact that it was presented as a paid advertisement rather than as part of journalistic coverage of a political debate, the content of the speech in question was indisputably of a political nature. Thus, as was also the case in VgT, the impugned advertisement obviously fell outside the commercial context of product marketing, an area in which States traditionally have enjoyed a wide margin of appreciation (see VgT, cited above, § 69; markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165, and Jacubowski v. Germany, 23 June 1994, § 26, Series A no. 291-A). Moreover, unlike the situation in Murphy (cited above, § 67), there is nothing to suggest that the advertisements included any content that might be liable to offend intimate personal convictions within the sphere of morals or religion. For these reasons alone, the Court is unable to share the opinion held by the Supreme Court's majority that the present case was more akin to Murphy than Vgt (see paragraphs 60–61 of the Supreme Court's judgment, cited at paragraph 20 above). On the contrary, it agrees with the minority (see paragraphs 80–81 of the Supreme Court's judgment, cited at paragraph 21 above) that the political nature of the advertisements that were prohibited calls for strict scrutiny on the part of the Court and a correspondingly circumscribed national margin of appreciation with regard to the necessity of the restrictions (see VgT, cited above, § 71; and Murphy, cited above, § 67).

In this connection, the Court has also taken note of the Government's observations, made with reference to the Court's case-law under Article 3 of Protocol No. 1 (see paragraphs 44 and 50 above), arguing that the Contracting States enjoyed a wide margin of appreciation in striking a fair balance between, on the one hand, freedom of expression and, on the other hand, the need to place restrictions thereon in order to secure the free expression of the opinion of the people in the choice of the legislature. As already recognised in the Court's case-law (see references at paragraph 61 above), a lack of consensus between the States making up the Convention community with regard to the regulation of the right to vote and the right to stand for election may justify according them a wide margin of appreciation in this area.

However, while it is true that the broadcasts at issue had been aired between 14 August and 13 September 2003 in the run-up to the local and regional elections that year, it should be noted that the advertising ban under section 3-1(3) of the Broadcasting Act was absolute and permanent and did not apply specifically to elections. In these circumstances, the Court does not find it appropriate in the instant case to attach much weight to the various justifications for allowing States a wide margin of appreciation with reference to Article 3 of Protocol No. 1. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the privileged position of free political speech under Article 10 of the Convention.

The Court has further considered whether, going beyond the arguments drawn from Article 3 of Protocol No. 1, the differences between domestic systems with regard to television broadcasting of political advertising could warrant a wide margin of appreciation. According to the comparative law reports compiled by the EPRA, out of the 30 European countries examined,

In so far as this absence of European consensus could be viewed as emanating from different perceptions regarding what is ‘necessary’ for the proper functioning of the ‘democratic’ system in the respective States, the Court is prepared to accept that it speaks in favour of allowing a somewhat wider margin of appreciation than that normally accorded with respect to restrictions on political speech in relation to Article 10 of the Convention.

The Court also takes note of the difference of opinion in the Supreme Court as to how much importance should be attached to the opinion of the legislature, i.e., the political majority at any given time, as to the scope of freedom of expression on political issues (see paragraph 18 above, compare paragraph 75 of the judgment quoted at paragraph 21). The applicants emphasised that the shifting political majority should not be left a wide margin of appreciation to decide on the limits of such speech. However, it is not for the Court to take a stance on such issues of national constitutional law, which fall to the Contracting States to solve within their own domestic legal systems. As stated above, its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken in the exercise of their power of discretion.

It is against this background that the Court will examine the justifications for the disputed interference in this case; whether it was supported by relevant and sufficient reasons and was proportionate to the legitimate aim pursued, regard being had to the balance to be struck between the applicants' freedom of expression, on the one hand, and the reasons adduced by the Norwegian authorities for the prohibition of political advertising, on the other.

In this regard, the Court notes that the rationale for the statutory prohibition of broadcasting of political advertising on television was, as stated by the Supreme Court, that the use of such a form and medium of expression was likely to reduce the quality of political debate generally. In this way complex issues might easily be distorted and groups that were financially powerful would have greater opportunities for marketing their opinions than those that were not. Pluralism and quality were central considerations, as was the fact that it was the legislature which had addressed the relevant issues for the democratic process, the legislature being better placed than any other State organs to assess how best to achieve those objectives. The Government pointed out that the ban had been limited to political advertising on television owing to the powerful and pervasive impact of this type of medium. Moreover, the prohibition had contributed to limiting election campaign costs, to reducing participants' donor dependence and ensuring a level playing field in elections. It was aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to ensure that those who could afford it did not obtain an undesirable advantage through the possibility of using the most potent and pervasive medium. Also, it helped to preserve the political impartiality of television broadcasting. These are undoubtedly relevant reasons (see VgT, cited above, § 73).

However, the Court is not convinced that these objectives were sufficient to justify the interference complained of.

In the first place, there is nothing to suggest that the Pensioners Party fell within the category of parties or groups that were the primary targets of the disputed prohibition, namely those which, because of their relative financial strength, might have obtained an unfair advantage over those with less resources by being able to spend more on television advertising (see VgT, cited above, § 75).

On the contrary, while the Pensioners Party belonged to a category for whose protection the ban was, in principle, intended, the Court, unlike the majority in the Supreme Court (see paragraph 62 of its judgment, quoted at paragraph 20 above), is not persuaded that the ban had the desired effect. In contrast to the major political parties, which were given a large amount of attention in edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to put its message across to the public through that medium. By being denied this possibility under the law, the Pensioners Party was at a disadvantage compared with major parties which had obtained edited broadcasting coverage, and this could not be offset by the possibility available to it to use other, less potent, media.

The Court further notes that it has not been contended that the specific advertising at issue contained elements that were capable of lowering the quality of political debate (see VgT, cited above, § 76).

Moreover, as mentioned above, it does not appear that the advertising could give rise to sensitivities as to divisiveness or offensiveness, making a relaxation of the prohibition difficult. In this regard, as already stated, the case under consideration is distinguishable from that of Murphy, where it was such sensitivities that led the Court to accept that the filtering by a public authority, on a case-by-case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently, and that a blanket ban would generate less discomfort (§§ 76–77). In VgT, however, where there were no such sensitivities at stake and the issues were more akin to those in the present instance, the Court struck down the blanket ban on political advertising as applied in that case.

In these circumstances, the fact that the audio-visual media has a more immediate and powerful effect than other media (see Jersild, cited above, § 31), although an important consideration in the assessment of proportionality (see Murphy, cited above, § 69), could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertisements at issue (see VgT, cited above, § 74).

The view expounded by the respondent Government, supported by the third-party intervening Governments, that there was no viable alternative to a blanket ban must therefore be rejected.

In sum, there was not, in the Court's view, a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition on political advertising and the means deployed to achieve that aim. The restriction which the prohibition and the imposition of the fine entailed on the applicants' exercise of their freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10, for the protection of the rights of others, notwithstanding the margin of appreciation available to the national authorities. Accordingly, there has been a violation of Article 10 of the Convention.