Close-Up: Live Issue - Political ad ban threatened by judicial review

As it stands, the ban may contravene the Convention on Human Rights' protection of free speech, Brinsley Dresden writes.

The ban on political advertising on television in the UK could soon be relaxed if an animal rights charity, Animal Defenders International, is successful in its application for a judicial review. The charity contests that the ban is incompatible with the right to free speech under Article 10 of the European Convention on Human Rights.

The charity brought its case after the BACC refused clearance for its "my mate's a primate" campaign because it infringed rule four of the Broadcast Committee for Advertising Practice's TV Advertising Standards Code. That rule prohibits commercials by bodies whose objectives are "wholly or mainly of a political nature", or may be "directed towards any political end".

In doing so, the BCAP Code implements the Communications Act 2003, which contains broad definitions of what defines political objectives. This explains why the ban is so problematic - objectives of a "political nature" include influencing government policy or public opinion on matters of public controversy in the UK.

It is no coincidence that in early September, Ofcom decided that recent television commercials for Make Poverty History infringed rule four. The organisation had persuaded the BACC that although it has some political objectives, its primary function is to raise awareness of global poverty and related issues, thereby getting its commercials on the air in the first place.

The matter was resolved by Ofcom, rather than the Advertising Standards Authority, because the responsibility for enforcing the rules on political advertising remains with the regulator, despite the fact that, for the most part, advertising regulation has been contracted out to the ASA. Good for the ASA: it has clearly learned its lesson from the furore over the Conservative Party's "demon eyes" poster in its 1997 general election campaign.

Three things become clear from the Ofcom report about Make Poverty History.

First, Ofcom was sympathetic to the cause espoused by Make Poverty History.

Second, Ofcom rightly concluded that it had no discretion to differentiate between good and bad politics, or to opine on the merits of any particular campaign. And, finally, while Ofcom could consider whether the Make Poverty History campaign breached rule four, it could not address the more fundamental question: does the ban on political ad breach the right to free speech enshrined in the Convention, and now incorporated into English law by the Human Rights Act 1998?

The judicial review application will be heard in the new year and while it seems unlikely that the ban will survive its existing form, the bar on advertising by political parties may survive. The fear that a rich party could subvert the democratic process by buying up the airways is one that may pass the test for acceptable restrictions on free speech under the Convention.

That will unleash huge opportunities for "advocacy advertising" by campaigning organisations, as well as their advertising agencies.

In fields such as global poverty and the environment, this may not prove too controversial. But advertising for and against vivisection, abortion or legalising drugs will present a huge challenge to the regulators, who will be forced to decide what is acceptable, without being able to hide behind a blanket ban.

- Brinsley Dresden is a partner and the head of media, brands and technology at Lewis Silkin.