Generalities
The issue of political communication - including the question of paid
political advertising - was dealt with on two occasions at EPRA meetings in Paris Ljubljana
In order to gather up-to-date information on the most relevant issues,
the EPRA Secretariat sent a brief questionnaire to members. This paper is
prepared on the basis on the answers received from the authorities from 31
countries, i.e. Austria, Belgium (x2), Bosnia and Herzegovina, Bulgaria,
Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hungary, Ireland, Isle of Man, Israel (x2), Italy, Latvia, Lithuania,
Luxembourg, Macedonia, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Spain, Sweden, Switzerland (x2).
Additional insight into the issue of political communication was given
through the answers to a wide-reaching questionnaire sent by the Hungarian
regulator ORTT via the EPRA Secretariat in May 2005.
The Secretariat would like to express its sincere gratitude for the
numerous answers received in the brief span of time. Members’ organizations
which did not send their answers are invited to do so at a later date so that a
revised version of the paper can be made available.
This paper aims at providing background information on the main aspects
of political advertising and at raising questions for the debate which will
follow the four practical presentations, which will be made by the Ofcom from
the UK, the Norwegian Media Authority, the Latvian Broadcasting Council and the
Italian AGCOM.
1. Matters of Definition
Does your national
legislation or regulations define political advertising?
The term political advertising is widely used in practice and in various
publications. However, it is not always clear what is meant by this term.
First of all, election and political broadcasts that are broadcast free
of charge by broadcasters must be distinguished from paid-for political
advertising. This distinction is not purely theoretical as their legal status
is often different.
Another important issue is whether political advertising can be
considered as television advertising in the strict sense and thus whether
advertising provisions are applicable (especially quantitative limits), or
should rather be considered as “political propaganda”.
However, the answers to the questionnaire unfortunately do not enlighten
us further as regards terminological issues.
Basically, three main situations can be distinguished:
·
Countries with no statutory or legal definition
In the majority of cases, there is no statutory or legal definition of
political advertising as such. This is the case in Austria Bosnia and Herzegovina Belgium Czech Republic Denmark Estonia Finland France Germany Israel Ireland Luxembourg Malta Norway Netherlands Poland Spain Switzerland
·
Countries with statutory or legal definition
However, there are a number of exceptions, notably in Cyprus Hungary Isle of Man , Lithuania Sweden
In the absence of a statutory definition, regulatory authorities have
sometimes coined their own definition. This is the case for instance in Romania
The definitions reflect the diversity of the audiovisual landscapes.
They usually do not distinguish between free or paid political advertising (Hungary Isle of Man , Sweden Macedonia
In Cyprus
·
Countries
using other terms
In a third category
of countries, the legislator has chosen to define other terms, some of them
close to the notion of political advertising, some of them rather inventive
(see the annex for the definitions):
-
“Elections advertising” (Portugal
- “Political clip” (Bosnia and Herzegovina
- “Pre-election campaign” (Bulgaria
-
“Pre-election agitation” (Latvia
- “Self-managed space” (Italy
Analysis & Comments:
·
The lack of explicit definitions and the great diversity of national
traditions are likely to create confusion between European counterparts when
referring to political advertising. Any attempt at a comparative overview
should therefore be especially cautious on that point.
·
The Council of Europe’s Recommendation No. R (99) 15 on Measures concerning Media Coverage of Election Campaigns[1] makes the distinction
between “paid political advertising” and “free airtime” also called “free
political advertising” but does not give any definitions either.
·
For the purpose of this paper, political advertising will refer to paid
political advertising while the term free airtime will be used for free
political advertising, such as party political broadcasts.
·
Generally, the term “advertising” as in political advertising is used in
the broadest sense as political propaganda. As a rule, national advertising
provisions are not applicable as they require payment or similar consideration
(e.g. France). In some countries such as Poland and Cyprus, political
advertising is subject to the general legal provisions on advertising. However,
usually, it is not included in the calculation of
the total advertising time (e.g. Poland, Italy) allowed
to the broadcaster.
·
It seems doubtful whether political
advertising could be considered as advertising in the meaning of Article 1(c)
of TVWF Directive or Article 2 f. of ECTT.
2. Legal Status
Is paid political advertising in broadcasting
prohibited in your country?
·
Countries with a ban on paid political advertising
Paid political advertising is statutorily forbidden in the vast majority
of Western European countries such as Belgium Denmark France Germany Ireland Malta Norway Portugal Sweden Switzerland UK Eastern Europe
such as the Czech Republic Romania
The most traditional justification for this prohibition is that rich or
well-established parties would be able to afford significantly more advertising
time than new or minority parties – thus amounting to a discriminatory
practice. Another rationale invoked for the restriction or the ban is that it
may lead to divisiveness in society and give rise to public concern. It has
also been suggested, albeit less frequently, that a prohibition would preserve
the quality of political debate[2].
·
Countries allowing paid political advertising
Paid
political advertising is allowed in many central and Eastern countries such as Bosnia and Herzegovina Bulgaria Croatia Hungary Macedonia Poland Baltic States : Estonia Latvia Lithuania Croatia
It is often
overlooked that several countries in Western Europe ,
such as in Austria Finland Luxembourg Netherlands
In Italy, until
2003 paid political advertising, i.e. self-managed spaces, was allowed also for
national broadcasters, provided that they also transmitted "political
communications spaces" (spazi di comunicazione politica), i.e. discussion
programmes with the participation of political representatives; now it is
allowed only for local broadcasters and has to cost no more than 70% of the
price applied to commercial advertisements, whereas national broadcasters may
only broadcast them for free.
In Greece
In Spain
The main rationale for paid political advertising is that it may enable
new candidates to obtain recognition and a profile[3]. It is also often argued that the right to political
advertising is an integral part of the right to freedom of expression and
information.
2. 1. Scope of the
ban of political advertising
As a rule, political advertising does not exclusively relate to election time, or political
parties or candidates. Advertising on other issues, which reflect important
societal debates, such as animal rights, environmental issues, abortion etc. (often
referred to as political propaganda or issue advertising) may be considered to
pursue a political end or to be political in nature and may therefore be
construed as political advertising.
·
Countries with a wide-reaching ban
This is for instance the case in France Ireland Isle
of Man , Israel Malta Spain UK Ireland Israel
On the Isle of Man , the term
"political" is used in a wider sense than "party
political". The prohibition precludes, for example, issue campaigning for
the purposes of influencing legislation or executive action by government or by
local authorities.
In France
In Spain
In Malta
·
Countries with a more restricted scope of the ban
In Switzerland, as a consequence of the decision by the European Court
of Human Rights in the Case of ”Verein gegen Tierfabriken[4]”, where
the Court stated (inter alia) that a prohibition of political advertising must
be justified in a “relevant and sufficient manner” to be compatible with
Article 10 ECHR, certain forms of “political” advertising are now allowed. NGOs
or societal groups may place advertising with a certain political content, but
not before elections or in campaigns before plebiscites. However,
the prohibition on advertising by political parties and candidates remains.
Similarly, in Denmark
In addition, Danish legislation does not allow advertisements with
political messages to be broadcast during the time of election campaigns where
a total ban is considered necessary to protect voters from inappropriate influencing
and to ensure equal democratic rights of candidates regardless of economic
means or funding. Political advertising and campaigning is not prohibited in
other media such as radio broadcasting.
In Norway
In Sweden 1 March
2006 this did however not apply to TV4 DTT-licences for their niche
channels. The new licences for TV4’s niche channels however, do not include a
condition of impartiality, which means that they can broadcast political
advertising.
In Italy
In some countries, the focus of the ban is on election and election time
(e.g. Czech Republic Belgium
2.2
Regulations/restrictions on paid political advertising
·
Countries with restrictions on paid political
advertising
Most of the countries which allow political advertising also foresee
certain legal restrictions to avoid the discriminatory character of the
practice. This includes limits on the duration and frequency (e.g. Macedonia,
Bosnia and Herzegovina), scheduling (e.g. Macedonia: not during news, children
programmes) limits on the charges for such ads (e.g. Bosnia and Herzegovina
where the price lists must be submitted to the regulator for review 15 days
prior to the elections period), or on maximum election expenditure that is
permitted by the law (Greece, Latvia where during Saeima (Parliament) and
European Parliament elections, a party may spend no more than 0,20 LVL (0,284
EUR) x the number of voters in the previous elections),
labelling/identification requirements (e.g. Cyprus, Macedonia: paid political
advertising should be properly and visibly labelled, from the commencement to
the end of the programme, as "paid political advertising”). In Hungary
Worth noting is that in several countries, such as in Macedonia, public service
broadcasting is not allowed to broadcast paid political advertising, only
private broadcasters may do so.
·
Countries with no restrictions on paid political
advertising
This is the case for instance in Austria Estonia Finland Poland Poland
Analysis & Comments:
·
The often mentioned East-West divide with regard to the ban of political
advertising, even if it reflects a real trend, may be somewhat misleading. The
West-European Countries which allow this practice are often forgotten in
comparative overviews.
·
In
view of the different positions on this matter, the Council of Europe does not
take a stance on whether paid political advertising should be accepted or not,
and simply limits itself to stating in its Recommendation[5]
“that if paid advertising is allowed it
should be subject to some minimum rules (…)”.
·
Most
countries which allow paid
political advertising have introduced some limits so that this practice is not
necessarily always discriminatory. All parties may be offered the same
opportunities. However, this “equality of opportunity” is only real when all
parties have the necessary funds at their disposal to buy the same amount of
time.
·
Rather surprisingly, a few countries do not impose any
restrictions on paid political advertising. However, it does not seem to raise
any specific problem or to cause any concern.
3. Provision
of free airtime during elections for political parties
3.1. Are
political parties allocated any free airtime during elections campaigns?
3.2. If so,
what are the main provisions applicable?
The provision of free airtime for political parties and candidates
within the specific framework of election or party political broadcasts (e.g. UK France
·
Countries allocating free airtime for
political parties and/or candidates
In the vast majority of countries, such as Belgium Czech Republic Estonia France Germany Greece Ireland Italy Latvia Luxembourg Malta
In most cases (e.g. Czech
Republic Estonia France Latvia Luxembourg
In general, private broadcasters do not have this obligation but they are
obliged to provide equal opportunities to other parties and have a professional
and ethical responsibility for fair reporting.
In Germany, private broadcasters are also obliged to offer timeslots to
political parties during elections. Political parties are, however, obliged to
reimburse commercial broadcasters for the transmission costs of political
advertising spots (so-called “Selbstkosten” – self-costs).
In Italy, political parties are entitled to “political communication
spaces” on all broadcasters, both public and private if subject to the
obligation to broadcast information programming (in practice, only teleshopping
broadcasters are excluded).
·
Countries with no system of allocation of
free airtime.
Several countries have no specific provisions concerning free airtime
for political parties. In a few countries, such as Belgium Bulgaria Norway Sweden
In Denmark, Danish legislation does not contain any specific provisions
concerning free airtime for political parties or allocation of such during
election campaigns. Allocation of airtime to political parties during elections
is, however, considered to be an integral part of the general obligation of
certain television broadcasting systems to provide “public service” television.
·
Basic criteria and principles guiding the
allocation of free airtime
Most Western European countries, such as Germany, Ireland, the
Netherlands, Spain, have chosen a system of proportional access in their
distribution of free air time. This means that criteria such as the latest results of the political parties
are taken into account in allocating broadcasting opportunities.
As an example, in Greece, allocation
of free airtime is made on the basis of the principle of “analogic equality”
that is in analogy with their performance at the previous elections also taking
into account the need for all political parties to inform the public about
their political programmes and ideas.
Many Eastern and Central European countries have adopted a system of
equal representation where parties/candidates should be allocated the same
amount of airtime (e.g. Latvia, Lithuania).
In Denmark, the criteria for which the airtime is allocated are not set
out in specific legislation but the Danish Supreme Court has ruled that the
allocation of airtime during elections must be subject “to the general
principle of equal treatment in administrative law.” This means that political
parties eligible for election cannot be excluded from airtime in general
debates without valid reason.
As a rule, the main principles applicable are
impartial and fair access to airtime (e.g. Malta, Italy) and equal conditions in the exposition
of the opinions (Italy).
In some countries, such as France Netherlands Portugal
Analysis
& Comments
·
In the vast majority of countries, parties and/or
candidates are usually granted free airtime, often but not exclusively on
public service broadcasters to present their programmes. It is interesting to
note that such a system does not exist in a few countries, where there is no
official electoral campaign scheme on television. It would be interesting to
hear about the motivation behind such a system and to see whether citizens
consider that they are being properly informed.
·
It is sometimes argued[6] that if candidates and
parties have fair access to free airtime during election campaigns, there is
less (or no) need for paid political advertising. This cannot be systematically
verified in practice as the existence of a scheme for allocating free airtime
does not prevent some countries from allowing paid political advertising (e.g Latvia Lithuania
4. Current
developments
Recent/pending decisions or court cases
·
Denmark 20 January 2005 regarding a television commercial for a
biography of the Danish Prime Minister, Anders Fogh Rasmussen. The question was
if the commercial was in accordance with the ban of political advertising and
the ban of political messages before an election. The Board considered that the
commercial only concerned the book (biography), and was not about a political
party or about Anders Fogh Rasmussen as a political candidate. Furthermore the
publisher has had the full editorial freedom without any influence from Anders
Fogh Rasmussen and his political party. The Board also considered that the
commercial did not contain political messages and decided that it was in
accordance with the law.
·
France
·
Germany: One
issue, currently being discussed is the question whether spots by a trade/labour
union broadcast before the elections of the works committee are admissible or
not. The Landesmedienanstalten are trying to reach a consensus on the
qualification of these kinds of spots - as (admissible) social or
(inadmissible) political advertising.
·
Israel: The
Supreme Court is reviewing the question of what constitutes "matters of
dispute of a political nature" (advertising for which is forbidden at
all times). It is not known when the Court will deliver its ruling.
·
Italy:
During
the recent electoral campaign for the renewal of the Italian Parliament, there
have been several cases of violations in the allocation of free airtime during
political communication programmes or information programmes (such as news or in-depth
programmes) leading to sanctions issued by AGCOM (both of a balancing nature,
that is allowing compensation time to the damaged party, and economic sanctions
(up to 250 000 EUR) but there were no cases concerning political
advertising.
·
Malta: The
Maltese law prohibits advertising "of a political nature". The
Broadcasting Authority has a case pending against it brought by a trade union
whose advertisement was banned by the Authority because of its political
content. The case VgT Verein has been referred to by both parties.
·
Norway: In a
case from 2004, the Norwegian Supreme Court found that a local TV-station’s
airing of advertisements for a political party before an election for regional
and local assemblies in 2003 was in violation of the prohibition against
political advertising in broadcasting. The TV-station had challenged a decision
from the Media Authority imposing a financial penalty for the violation of the
ban. In emphasizing the VgT-case, the TV-station claimed that this was an
interference with its freedom of expression under the European Convention on
Human Rights Article 10. The Supreme Court held that the general prohibition
against political advertising in broadcasting in Norway
In 2005,
the Media Authority decided that a TV-station’s transmission of an
advertisement containing a political message for an anti-terrorism group was
not in violation of the ban. In this case, the authority distinguished the
facts of the case from the 2004 Supreme Court judgment and emphasized instead
the European Court of Human Rights’ ruling in the VgT-case as they considered
this case to be more similar. The decision was not challenged.
·
Spain: In
2003, TVE (Spanish public TV) refused to broadcast an institutional campaign of
the autonomous community of Aragón, on the grounds that, according to their own
view, this campaign had political content. The autonomous community presented a
request to the judicial court (…). The
Court made an interpretation of what they considered as advertising, which
content is “essentially or primordially political”. (…)For the Court, what
mattered is how the campaign is presented to the audience rather than its
finality. When the political finality prevails on how the campaign is
presented, it is when, for the Court, the advertising has essentially or primordially
political content. The Court ruled that
it was not political advertising and ordered the public broadcaster to pay
damages to the autonomous community (…). The public broadcaster appealed this
decision, but in 2004, the Court of Appeal confirmed all the terms of the first
judicial decision.
·
Switzerland: The
UBI/AIEP made a recent ruling on two spots advocating for “the end of advertising
prohibitions” and for “a more human migration policy”. The authority considered
that statements on political questions emanating from organizations which are
not political parties do not fall under the prohibition of political
advertising; such advertising spots would only cause a problem during the
particularly sensitive period immediately before a referendum. The Federal
Court confirmed this practice in a judgement in 2005.
Recent
and pending legislative and regulatory developments
Trend towards
strengthening of rules:
·
Bosnia and Herzegovina: There have been some activities to change and amend the Election Law
that will most probably refer to the length of election period, the length of
paid political advertising and maybe a possibility for private broadcasters to
exclude themselves from the election period coverage. But up until now there is
no further information on this.
·
Latvia
·
Lithuania: currently
permits political advertising under its electoral law. This is under constant
discussion. In fact, the relevant law itself requires draft legislation to be
prepared by 1 January 2005 prohibiting political advertising altogether,
although apparently this has not yet been done.
·
Luxembourg:
New
regulation, which will prohibit political advertising, should be introduced
soon.
Trend towards
relaxation of rules:
·
Denmark:
In
2003, there was a wish among the vast majority of the members of the Danish
parliament to introduce further limitations on political advertising. However,
the Danish Ministry of Justice found that a total ban on political advertising
would not be in conformity with the European Court of Human Rights decision in
the VgT Verein Gegen Tierfabriken v. Switzerland
·
Norway: Last
summer, the government circulated for public hearing a proposal to revise the
regulation on political advertising in broadcasting. The proposal is to allow
political and religious advertising in broadcasting in general, except from a
period of four weeks before elections. Meantime, there has been a change of
government to an alliance of social democratic parties and it is not yet clear
whether the new government wants to introduce this relaxation.
·
Switzerland: has revised its
future federal law to reflect the ECHR judgement in VgT. The scope of the term “political”
has been narrowed. This will retain the prohibition on
advertising by political parties and candidates, but allow political propaganda
except during an election period.
Reported
Issues of Concern
·
Macedonia Republic
of Macedonia
·
Greece
5. Summary
and Practical Issues for Discussion
The lack of explicit definitions and the great
diversity of national traditions are likely to create confusion between
European counterparts when referring to political advertising. Generally, the term
“advertising” as in political advertising is used in the broadest sense as
political propaganda. As a rule, national advertising provisions are not
applicable as they require payment or similar consideration. However, in some
countries, political advertising is subject to the general legal provisions on
advertising.
Can
political advertising be considered as advertising in the meaning of
Article 1(c) of TVWF Directive or Article 2 f. of ECTT?
Rather
surprisingly, a few countries do not impose any restrictions at all on
paid political advertising. However, it does not seem to raise any specific
problem or to cause any concern.
What about the experience made in countries such as Finland Austria Estonia
In the vast majority of countries, parties and/or
candidates are usually granted free airtime, often but not exclusively on
public service broadcasters to present their programmes. It is interesting to
note that such a system does not exist in a few countries, where there is no
official electoral campaign scheme on television.
What are the motivations behind a system with no official electoral
campaign scheme on television? Do citizens consider themselves to be properly
informed on political issues?
It is
sometimes argued that if candidates and parties have fair access to free
airtime during election campaigns, there is less (or no) need for paid
political advertising. This cannot be systematically verified in practice as
the existence of a scheme for allocating a free airtime does not prevent some
countries to allow paid political advertising.
Do the
countries allowing both systems feel that the need for paid political
advertising has therefore been reduced? What are the real advantages of paid
political advertising? Do the parties/candidates make use of the possibility of
making paid political advertising?
In
many (Western) European countries, the most burning topic at present seems to
be “issue advertising”, i.e. messages with a political end emanating from
organizations which are not political parties, such as interest or societal
groups. Further to the ECHR ruling, a few countries have restricted the scope
of the ban of political advertising and now allow such spots - outside election
periods.
Are
the current total bans (including issue advertising) justified in a
“relevant and sufficient manner” so that they
would survive scrutiny under the ECHR? Do they constitute a disproportionate
restriction on the freedom of expression?
6. Presentations
In order to illustrate the issues mentioned in
this paper, four presentations will be made by EPRA members.
Ofcom - UK
Tim suter will report on the UK situation,
with a special focus on the recent Ofcom decision
on the “Make Poverty History” campaign dealing with “Issue advertising[7]”.
Norwegian Media
Authority - NO
Ingvil
Conradi Andersen will report about the Norwegian situation[8]; the
Supreme Court case and the several issues that it focused on, especially
concerning the case law from the European Court of Human Rights (ECHR), and how
the Media Authority has interpreted the Supreme Court case later on in their
overseeing of the prohibition.
Broadcasting Council – LT
Andris Mellakauls, member of the Broadcasting
Council, will present an update on the current situation in Latvia.
AGCOM – IT
Sebastiano Sortino, Commissioner of the AGCOM will report on political
advertising & communication during this past electoral campaign in Italy.
Annex 1: Some definitions of Political Advertising:
Bosnia-Herzegovina: There is
no strict definition of "political advertising" in general, there are
definitions of a political clip,
contained in the Election Commission's Rules: “Political clip” is a short,
earlier recorded political advertisement that enables political subject to
communicate directly with public, through its words and/or visual image;
Bulgaria: The Law
regulates the political advertisement as a form of “a pre-election campaign” of
political parties and formations, independent candidates who take part in the
election process.
Cyprus: Section 2 of
the Radio and Television Stations law of 7(I)/1998 states that a political advertisement means an
announcement or message of any form which is broadcast in return of payment
or a corresponding consideration by a candidate in Presidential elections
(the law and regulations are currently revised with a view to include
parliamentary elections as well). Political advertising is always in the form
of paid advertising.
Italy: “It is
called “Self-managed space”
(messaggio autogestito) and is subject to special rules. It must allow a
motivated exposition of the political programme of the interested party and
respect a duration limit between 1 and 3 minutes: it cannot be inserted during
a commercial advertising break and may not interrupt any programme, but has to
be included in a specific slot together with other messages. It is not
calculated within the daily/hourly time allowance for advertising.
Isle
of Man:
” ... any advertisement which is inserted by or on behalf of any body whose
objects are wholly or mainly of a political nature, any advertisement which is
directed towards any political end, or an advertisement which has any relation
to any industrial dispute (other than an advertisement of a public service
nature inserted by or on behalf of the Council of Ministers, a Department or a
Statutory Board) ... ”
Macedonia: “By paid political advertising we
shall understand the airing of political - propaganda messages such as:
announcements, releases, political election video spots and other short forms
of political advertising.(…)” “By free-of-charge media presentation we shall
mean the airtime provided for direct communication of the organizers of
election campaign and the candidates with their constituents. The organizers of
election campaign or the candidates shall promote their programs and positions
freely.”(…)
Latvia:
“Pre-election agitation is advertising by a political organization, an
association of political organizations or a candidate, in the mass media or
otherwise, if it contains a direct or indirect invitation to vote for or
against a political organization, an association of political organizations or
a candidate”. No difference is made between paid and free political
advertising.
Portugal: Election advertising
is defined as all the activities directly or indirectly aiming at promoting
candidatures, concerning either the candidates, the political parties, the
heads of their bodies or their agents or any other people, particularly with
the publication of texts or images that express or reproduce the content of
this activity.
Romania: The Regulatory Audiovisual Code
adopted in March 2006 stipulates that political advertising can be defined as
advertising spots that promote a political party, a politician or a political
message.
Sweden: Information broadcast on
behalf of a third party and which are designed to win support for political or
religious views, or views relating to special interests in the labour market
sphere. Such information is to be regarded as advertising. “Advertising is
defined as commercial advertising as well as broadcasts which are commissioned
by a third party but are not commercial advertising.
ANNEX 2 Brief
Summary of the ECHR case VgT Verein
gegen Tierfabriken v. Switzerland[9]
The case deals
with a Swiss association (VgT) dedicated to the protection of animals. VgT
produced a television commercial concerning animal welfare and intended to have
it broadcast on television. One scene showed a noisy hall with pigs in small pens
and compared the conditions to those in concentration camps. The commercial
ended with the words "eat less meat, for the sake of your health, the
animals, and the environment".
On 10 January 1994
the Commercial Television Company, responsible for television advertising,
informed the association that it would not broadcast the commercial in view of
its "clear political character" as political advertising was banned
on television in Switzerland. The applicant association filed several complaints
and an administrative law appeal, which was dismissed by the Federal Court.
On 26 June 2001,
the Court of Human Rights held that the refusal to broadcast the commercial had
been a violation of Article 10 of the European Convention of Human Rights
(right of freedom of expression), as the measure in issue could not be
considered "necessary in a democratic society".
This judgement is
particularly interesting for several reasons:
Concept of political advertising: The Court observed that the
commercial could be regarded as "political", as it reflected
controversial opinions pertaining to modern society in general, lying at the
heart of various political debates - rather than inciting the public to
purchase a particular product.
Impact of the different regulatory treatment of political advertising for
broadcasting and the press
Further to Art. 10
(2), the exercise of the right to freedom of expression may be subject to
restrictions if several conditions are met. In particular, the interference to
the rights must be prescribed by law and necessary in a democratic society.
This implies that the existence of a “pressing social need” is necessary to
refuse to broadcast the commercial. The Court found that a prohibition of
political advertising, which applied only to certain media (i.e. broadcasting
but not the press), did not appear to be a particularly pressing need.
The Court did not exclude that a prohibition of “political advertising”
may be compatible with the requirements of art. 10 in certain situations.
Nevertheless, the interference in the freedom of expression must be justified
in a “relevant and sufficient manner”
In the Court’s opinion, the domestic authorities had not justified the
interference in VgT’s freedom of expression in a "relevant and
sufficient" manner. It had not been argued that VgT itself constituted a
powerful financial group which, with its proposed commercial, sought to
endanger the independence of the broadcaster, to unduly influence public
opinion, or to endanger the equality of opportunity between the different
forces of society. The Court considered that, rather than abusing a competitive
advantage, the association intended only to participate in an ongoing general
debate on animal protection.
[1]http://www.coe.int/t/e/human_rights/media/4_documentary_resources/CM/Rec%281999%29015&ExpMem_en.asp#TopOfPage
[2] Political Debate
and the Role of the Media, The Fragility of Free Speech, Iris Special, European
Audiovisual Observatory, 2004.
[4] Press release: http://www.echr.coe.int/Eng/Press/2001/June/VgtVereinGegenTierfabriken2001judepress.htm
For the judgement, see http://hudoc.echr.coe.int/,(no direct
link to the case)
[5] Council of Europe ’s Recommendation No. (99)15 on measures concerning
media coverage of election campaigns.
[6] Political
Debate and the Role of the Media, The Fragility of Free Speech, Iris Special,
European Audiovisual Observatory, 2004
http://www.epra.org/comasystem/view/presse/view_presse.pl?datensatz=preRR6EbyjVXElAQgkT0AdJKws2QPVRPsNtk8AOFAoIax09v2JPyc1116832989
[9] Press release: http://www.echr.coe.int/Eng/Press/2001/June/VgtVereinGegenTierfabriken2001judepress.htm
For the judgement, see http://hudoc.echr.coe.int/,(no direct
link to the case)
