Auszug aus "Political advetising on UK television", von Eric Barendt, Professor of Media Law, University College London, in medialex 2/07.
Political advertising has always been banned on independent television in the United Kingdom since its inception in the 1950s. The ban also applies to licensed radio services. (The BBC is not allowed to take advertising, so the distinction between commercial and political advertising does not arise for it.) The Communications Act 2003, section 321, has clarified the scope of the ban. Any advertisement inserted on behalf of a body whose objects are wholly or mainly of a political nature or which is directed to political ends is covered; not only party political advertisements, but also commercials with general political or social objectives are banned. But the government was unable to state that these measures complied with the right to freedom of expression guaranteed by Article 10 of the European Human Rights Convention, incorporated into UK law by the Human Rights Act 1998. The reason was that in 2001 (VgT Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 4) the European Human Rights Court had held that Switzerland infringed freedom of expression when the Swiss Commercial Television Company refused to allow the showing of a commercial by an animal rights organization protesting against cruel methods of pig rearing. The Court held the refusal amounted to an interference with political expression, which could not be justified under the Convention; the Company had relied on a statutory provision which applied only to the broadcasting media and which effectively precluded the applicants from communicating their message to the public.
The Animal Defenders International case
It is unsurprising that the UK political broadcast advertising ban has been challenged – also by an animal rights organization, Animal Defenders International (ADI). In the course of its campaign against the use of primates for public entertainment, ADI commissioned a television commercial, showing a young girl playing with an animal in a cage, with an invitation to viewers to send money for an information pack. It was rejected by the Broadcast Advertising Clearance Centre as infringing the ban on advertisements by bodies with political objects. The Centre had no choice, as UK legislation clearly banned the commercial. Unlike the challenge in the Swiss case, ADI’s case was essentially that the legislative provisions were incompatible with the right to freedom of expression. The Administrative Court has recently rejected the challenge: R (on the application of ADI) v Secretary of State for Culture, Media and Sport  EMLR 6. It held the ban on broadcast political advertising was imposed to prevent rich pressure groups and political parties from buying lots of advertising time, so under Article 10(2) of the Convention it could be regarded as «necessary…to protect the rights of others…» to the integrity of a fair democratic process. The Court did not accept the applicant’s argument that a more narrowly drawn ban confined to advertising during election campaigns would have been adequate to achieve that objective. In the Court’s view Parliament had considerable discretion over this subject; its solution was «the least discriminatory and a very practicable approach to the broadcasting of political/social advocacy advertisements» (para 121).
The two judges in the Administrative Court were unconvinced by the decision in VgT....