Joint Committee On Human Rights Nineteenth Report

Power to require providers to broadcast corrections or apologies

  1. This power, provided by clause 158, engages the right to freedom of expression, since it forces a broadcaster to carry a message which may be unwelcome to him or her, and with which he or she may profoundly disagree. It is a sensitive issue, particularly as the draft Bill envisages that a non-judicial public body, OFCOM, would be able to require people to apologise for, or distance themselves from, opinions which they hold in good faith. Under both Article 10(1) of the ECHR and Article 19(1) of the ICCPR, the right to hold opinions is absolute, and it is in principle objectionable for a public authority to require someone to apologise for an opinion which he or she has an absolute right to hold. The power to force people to express a particular viewpoint is a greater intrusion on their autonomy and freedom of thought than imposing a penalty or a compensation requirement on them when they have expressed views in ways which cause harm. It forces them to act hypocritically. This may be regarded as a disproportionate, and hence unjustifiable, interference with rights under Article 10.[20] Another possible ground of disproportionality is that the Bill as drafted does not appear to provide for an appeal against a decision of OFCOM to require a person to broadcast an apology or correction. Judicial review would be available, but this remedy does not normally allow for examination of the merits (as opposed to the legality, procedural propriety and rationality) of the decision under review, although it might be possible to bring a direct action against OFCOM under section 7 of the Human Rights Act 1998 alleging a violation of the Convention right to freedom of expression, and either in those proceedings or in judicial review proceedings it might be possible for a court to decide on the proportionality of the requirement to make a correction or an apology.
  2. The power would be prescribed by law, and would serve a legitimate aim (protection of the reputation and rights of others). Where someone is aggrieved by unfairness or inaccuracy or invasion of privacy, there may be a pressing need to take some action to vindicate their reputation and rights publicly, and broadcasting a correction or an adjudication of wrong-doing on the part of the broadcaster may be the only effective means of achieving this. Article 8 of the Council of Europe Convention on Transfrontier Television (1989) requires states from which programmes are transmitted to ensure that everyone has the opportunity 'to exercise a right of reply or seek other comparable legal and administrative remedies' relating to programmes, and to ensure that the right can be effectively exercised, as long as that can be done compatibly with rights under ECHR Article 10. The law in the United Kingdom does not currently give a right of reply. Carry such a message is likely to impose relatively little financial cost on the broadcaster directly (although some damage to the broadcaster's reputation may result). In that context, it does not seem disproportionate to require a broadcaster to broadcast the adjudication of a complaint against the broadcaster, although OFCOM would need to consider the effect of ECHR Article 10 in each case in the light of its own facts. However, requiring a broadcaster to make an apology, and in some circumstances a correction, would go a good deal further, demanding that the broadcaster associate himself or herself with OFCOM's assessment of the complaint. We consider that it could violate the broadcaster's rights under Article 10. We draw attention to the need for the Government to reconsider these provisions in the light of that.
  3. Power to impose penalties on, and to revoke licences of, service providers

  4. These powers, under clauses 159-161, engage the rights of broadcasters under ECHR Articles 6 (due process) and 10 (freedom of expression), and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). For the reasons which follow, we consider that there is a serious risk that they would be used in ways which would violate all these rights.
  5. Article 6 of the ECHR: due process. Clause 159 would allow OFCOM to impose huge penalties, running into hundreds of thousands (if not millions) of pounds. Article 160 would allow OFCOM to revoke a licence, with catastrophic effects on the broadcaster's activities. In our view, the scale of the penalties and consequences of revocation of licences take the procedure into the field of a 'criminal charge'. Even if this turns out to be wrong, a decision to impose a penalty clearly determines civil rights, including the right to property. Either way, the right to a fair hearing before an independent and impartial tribunal would be engaged.[21] OFCOM cannot be regarded as impartial for this purpose: it combines an investigative role with an adjudicative one. The procedural protections are minimal: all that is required, apparently, is that the person who may be subject to a penalty is to be give 'a reasonable opportunity of making representations' (clauses 159(9) and 160(7)). A penalty notice could then be issued even if there was no evidence which would meet the standard of proof in civil, let alone criminal, proceedings: the requirement that OFCOM should be satisfied (see, e.g., clause 159(1)) is subjective rather than objective. Judicial review is unlikely to provide an effective remedy for improper decision-making by OFCOM, because the subjective nature of OFCOM's judgment would make it difficult to assess the quality of the decision, beyond taking a view as to whether it was wholly irrational (the Wednesbury ground of judicial review). We do not consider that the procedural safeguards would meet Article 6 standards.
  6. Article 10 of the ECHR: freedom of expression. The revocation of a licence under clause 160 would self-evidently interfere with this right, and the considerations noted above in relation to due process would make it difficult to establish that the interference was proportionate to any pressing social need so as to be 'necessary in a democratic society' for a legitimate purpose under ECHR Article 10(2).
  7. Article 1 of Protocol No. 1: enjoyment of possessions. The factors outlined above make it unlikely that OFCOM would be able to show that the revocation provisions in clause 160 would strike a fair balance between the general interest and the rights of licence holders so as to be justifiable under Article 1 of Protocol No. 1.
  8.  We consider that the draft Bill should be amended so as to provide significantly improved procedural safeguards to address the concerns expressed in the three preceding paragraphs on human rights grounds.

    Issues arising from the Regulatory Provisions relating to Broadcasting in General

    Requirements of the public service remit

  10. The requirements of the draft Bill in relation to holders of broadcasting licences with a public service remit impose obligations on broadcasters which are capable of engaging the right to freedom of expression under ECHR Article 10 and the right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR. The detailed requirements, set out in clause 181(5),[22] seem to serve legitimate purposes under Article 10(2) and advance the general interest within the meaning of Article 1.
  11. -  First, they advance the right of people generally to receive information and ideas under Article 10(1).

    -  Second, the requirements to reflect the lives and concerns of different communities and cultural interests and traditions in the United Kingdom and particular localities, and to provide a suitable quantity and range of educational, special-interest, religious and social-issue programmes, advance rights under the ICESC (particularly the right to education under Article 13 and the right to participate in cultural life under Article 15).

    -  Third, the provisions requiring children's programmes to be provided would help to advance children's rights to receive and impart information and ideas of all kinds regardless of frontiers, to enjoy freedom of thought, conscience and religion, and the right to have access to information and material, via the mass media, from a diversity of national and international sources, particularly those aimed at the promotion of the child's social, spiritual and moral well-being, having particular regard to the linguistic needs of minority groups (CRC, Articles 13, 14 and 17 respectively).

    Furthermore, the procedures for ensuring that public service broadcasters discharge their responsibilities provide for OFCOM to adopt a relatively light touch unless things are clearly going seriously wrong. That being so, we consider that the proposed arrangements would not be inherently incompatible with human rights, although they would have to be applied in ways that were demonstrably proportionate, non-arbitrary and non-discriminatory in each case, satisfying the requirements outlined in paragraph 37 above.

    Enforcement powers in relation to the public service remit

  12.  The enforcement mechanism essentially involves substituting directions to the broadcaster for self-regulation (clause 181). This would engage rights under ECHR Article 10 and under Article 1 of Protocol No. 1 to the ECHR, but, for the reasons outlined in the preceding paragraph, we consider that it would serve a legitimate aim. As it would not directly lead to a penalty, but only to an enhancement in the rigour of regulation, the response does not appear to us to be in danger of being disproportionate to the legitimate aim. So long as the directions themselves are properly related to the objective to be achieved, and do not impose greater burdens than necessary for that purpose, we consider that the provisions and their implementation would meet the 'necessary in a democratic society' standard. The interference with Article 10 rights would therefore be justifiable. In our view, an interference which was held to be justified under Article 10(2) would be virtually certain also to be justifiable also under Article 1 of Protocol No. 1, and would be capable of being implemented in a way which would avoid unlawful discrimination contrary to ECHR Article 14 taken together with Article 10 and with Article 1 of Protocol No. 1.
  13. Power to require OFCOM to direct licence holders to broadcast announcements

  14. This power, given to Ministers under clause 223, would engage the right to freedom of expression under ECHR Article 10 and the right to enjoyment of property under Article 1 of Protocol No. 1 to the ECHR. On the face of the draft Bill, it would be a very wide power. A Minister could act if it appeared to him or her to be appropriate to do so in connection with any of his or her functions: clause 223(1). The proposed power is thus subjectively formulated and is not delimited by reference to topic, purpose or attendant circumstances. This makes it difficult to be confident that it would comply with the requirement that any interference with a right must be 'prescribed by law' (ECHR Article 10(2)) or 'subject to conditions provided for by law' (Article 1 of Protocol No. 1 to the ECHR). It also makes it difficult to be confident that the exercise of the power in individual cases would interfere with rights only to the extent necessary to pursue a pressing social need, and in a manner proportionate to the legitimate objective in view, so as to be 'necessary in a democratic society' within the meaning of ECHR Article 10(2). We consider that the Government should introduce provisions into the Bill to make this power more specific in order to provide adequate safeguards for human rights.
  15. Rules relating to the disqualification of particular groups from holding licences

  16. The denial of a licence to a person to broadcast engages the person's right to freedom of expression under ECHR Article 10. Blanket disqualifications of whole groups of people by reason of their membership of the group may be particularly difficult to defend, and may also give rise to accusations that differential treatment amounts to discrimination in relation to the enjoyment of the right under Article 14 taken together with Article 10. Where the denial of the right to hold a licence is based on a prohibition on religious organizations holding licences, it may also engage the right to freedom of thought, conscience and religion under Article 9(1), which includes 'freedom ... to manifest his religion or belief, in worship, teaching, practice and observance'.
  17. Disqualification of religious groups

  18. The draft Bill would allow religious organisations to hold licences for local, rather than national, radio broadcasting (clause 232), but would retain the existing disqualification in respect of licences for national radio or television broadcasting. The European Court of Human Rights has, in the past, upheld the compatibility with ECHR Article 10 of a total disqualification of religious groups from holding broadcasting licences. In United Christian Broadcasters v. United Kingdom,[23] the applicant (hereafter 'UCB') complained that it was ineligible to apply for a national radio broadcasting licence, because the Broadcasting Act 1990, Sch. 2, Part II, para. 2(1) disqualified any body whose objects are wholly or mainly of a religious nature. The Court (Third Section) decided that the complaint was inadmissible, on the ground that it was manifestly unfounded. The Court held that the disqualification was justified because—
  19. -  spectrum limitations meant that the capacity for national radio service is very limited;

    -  the ban on religious groups is intended to promote the efficient use of scarce resources, and thereby to safeguard pluralism in the media, to cater for a variety of tastes and interests, and to avoid discrimination between the many different religions practised in the UK.

  20. The Court accepted that the ban interfered with UCB's freedom of expression (ECHR Art. 10), but pointed out that states are permitted (under the last sentence of Art. 10(1)) to regulate broadcasting by reference to such criteria as the nature and objectives of the proposed station and its potential audience. The restriction in that case was said to serve a legitimate aim under Art. 10(2): it aimed to ensure 'that the limited spectrum available for national radio broadcasting is distributed in such a way as to satisfy as many radio listeners as possible. The restriction can, therefore, be said to pursue the aim of protecting the rights of others, within the meaning of Article 10 2...'[24]
  21. The Court considered the issue of proportionality, bearing in mind that the state's margin of appreciation under Art. 10(2) was subject to strict supervision because of the importance of the right to freedom of expression. Licensing applications must not be rejected on manifestly arbitrary or discriminatory grounds, and the necessity for any restriction must be convincingly established. The Court was influenced by—
  22. -  the fact that the ban applied to all religious faiths,

    -  the fact that a similar disqualification applies to political parties,

    -  the fact that a society in which many faiths co-exist may find it necessary to restrict the freedom to manifest one religion's beliefs in order to reconcile the interests and respect the beliefs of different groups, and

    -  the fact that (as it thought) there was no restriction on applying for local radio broadcasting licences.

    In the light of these considerations, the Court decided that the object of the ban, to avoid discrimination, could not be said to be arbitrary or to fall outside the state's margin of appreciation.

  23. However, the decision is of questionable persuasive force, because first, digital broadcasting would significantly reduce the importance of spectrum limitation considerations, and second, the disqualification in force at the time related to all radio broadcasting, not only national licences. The decision might therefore be reviewed in a later case if—
  24. -  the ban were to apply more widely than the Court was led to believe, eg to local as well as national broadcasting licences; or

    -  the shortage of spectrum were to cease to be a problem, so that discrimination between religious groups could be avoided by allowing them all to broadcast; or, perhaps,

    -  the disqualification of political groups were to be held to violate Article 10.

  25. Insofar as the draft Bill would permit religious groups to hold local radio broadcasting licences, it would help to maintain the authority of the decision. However, it would present problems of its own. By accepting that it was not necessary to restrict freedom of expression and freedom to manifest beliefs on local radio in order to reconcile the interests and respect the beliefs of different groups, the draft Bill would make it harder to argue that such a restriction was necessary for those purposes on national radio and television. In addition, the advent of digital broadcasting would remove spectrum scarcity as a justification for denying access to the medium: if there is room for any group to broadcast, it should no longer be necessary to grant licences to only some groups in a discriminatory way. We are therefore concerned that the disqualification of religious groups from holding national radio and television broadcasting licences might be held to be incompatible with ECHR Articles 9 and 10.
  26. Removing the disqualification of religious groups would relieve OFCOM of the need to make difficult judgments about whether or not particular groups or beliefs were religious. On the other hand, there is likely to be considerable public concern about the risk that certain groups, purporting to act in furtherance of religion, would use programmes to exploit the weaknesses of vulnerable or suggestible people. We recognise the force of this. However, we would draw attention to the powers in the Broadcasting Acts 1990 and 1996, which would pass to OFCOM under the draft Bill, to protect viewers and listeners. A group seeking a licence would have to satisfy OFCOM that it was a 'fit and proper person' to hold one, and OFCOM would have power to attach (and enforce) conditions to any licence to secure compliance with programme standards to prevent the broadcast of offensive or harmful material or the use of exploitative techniques (clauses 212(2)(f) and (j), and 218). In the light of that, we suggest that the Government should give further thought to the need and justification for maintaining the disqualification of religious groups from holding national radio and television licences.
  27. Political advertising

  28. The draft Bill would pass to OFCOM the duty currently laid on the ITC and the Radio Authority to 'do all that they can to secure' the prohibition of 'any advertisement which is inserted by or on behalf of any body whose objects are wholly or mainly of a political nature' and of 'any advertisement which is directed towards any political end'.[25] This provision will need to be considered in the light of a recent decision of the European Court of Human Rights. In Vgt Verein Gegeng Tierfabriken v. Switzerland,[26] the Court held that a ban on nationally broadcasting political advertising in Switzerland violated Article 10. That case related to an advertisement encouraging people to eat less meat and urging protection for animals. (The Swiss authorities regarded this as political. It would probably be regarded in this light in the United Kingdom only if the advertisement, or the organisation, was campaigning for a change in the law, for example to improve the treatment of animals.)
  29. The Court accepted that the ban advanced the protection of the rights of others, within Article 10(2), by preventing financially strong groups from obtaining a political advantage, and securing the independence of the broadcaster, as well as preventing undue commercial influence over politics and providing for 'a certain equality of opportunity between the different forces of society', and also to support the press, which remained free to carry political advertisements.[27] However, the Court decided that the ban had not be shown to be 'necessary in a democratic society' within the meaning of Art. 10(2).
  30. Although the Swiss ban applied only to national broadcasting, not to local broadcasting (the United Kingdom ban extends to both), the Court held that the ban was disproportionate to the legitimate aim, arguing that where expression is political, the State's margin of appreciation in justifying an interference with it is reduced,[28] and the fact that the ban did not extend to political advertising in the press suggested that the need for the ban was not particularly pressing.[29] The judgement also argued that the group in question (an animal rights group) was not particularly powerful economically or politically, so (even if the ban could be justified in respect of some potential advertisers) it was not justifiable in relation to the particular advertiser.[30] That being so, the Court was of the view that the ban had not been shown to be justified, either generally or in the particular case.
  31. The Court would appear to suggest by this judgement that: States are unlikely to be able to justify controls on political broadcasting as easily as controls on other kinds of broadcasting; that a general justification for having a regulatory regime for political advertising on television will no longer necessarily justify a ban on all political advertising on radio and television, unless it can be justified by reference to the 'necessity in a democratic society' test; and that, even if the regulatory regime as a whole can be justified in general, States must now be able to justify each application of the ban to individual advertisers by showing that banning that advertiser, or that advertisement, is proportionate to the overall need to regulate political advertising in general.
  32. On this interpretation, the obligation of OFCOM under the draft Bill to do all it can to secure the prohibition of political advertising could well be found to be incompatible with rights under ECHR Article 10.[31] This does not mean that there can be no controls over political advertising on television and radio, but that any control must be shown to be justified by reference to the criteria set out in ECHR Article 10(2).
  33. In the cases discussed above, the European Court of Human Rights has recognised the value of avoiding discrimination against less favoured or less well-funded viewpoints. The acceptance of that aim as a legitimate objective under Article 10(2) is implicit in the judgment of the Court in the two cases discussed above. The question, in each case, is whether the restriction goes further than can be shown to be necessary to achieve the goal. The same approach can be seen to have influenced the Canadian Supreme Court under the Canadian Charter of Rights and Freedoms in Libman v. Attorney General of Quebec.[32] There is a different tradition in the USA[33] and Australia[34] which gives greater weight to the interest in fostering as much political expression as possible. But the European tradition seems to us to be preferable, in that it gives what we consider to be appropriate weight to the legitimate objective of securing equality of opportunity for political expression, at any rate in the broadcast media. In our view, this justifies restrictions on the freedom to buy advertising time for political purposes. While such restrictions should be proportionate to the legitimate aim of preserving balance in debate, there are wider considerations which we believe urge the utmost caution in moving from the current statutory position in the UK (where television and radio access to those seeking to advance political causes is restricted almost entirely to the highly regulated system of party political broadcasts). These wider considerations include the fear of the annexation of the democratic process by the rich and powerful, to which the Court alluded in its judgment in Vgt Verein Gegeng Tierfabriken v. Switzerland.[35] The risks of this will be intensified where it proves impossible to prevent concentration of cross-media ownership in one country. We are also conscious that the compromise hinted at by the Court—a more circumscribed ban applied more discriminatingly—presents a formidable challenge to put in statutory form. In particular, it is difficult to conceive of how to devise ways of allocating air time or capping expenditure in relation to a "political viewpoint" (as opposed to a political party, however that might be defined in statute).[36] Finally, while acknowledging that the judgment of the Court raised wider issues, we also note that the specific nature of the case at issue would seem not to provide an exact parallel with the nature of the ban operated in the United Kingdom. We consider that there is therefore some room to doubt its general applicability, and we see merit in waiting for the jurisprudence in this area to mature further before deciding on the appropriate legislative response.
  34. In the light of the decision of the Court in Vgt Verein Gegeng Tierfabriken v. Switzerland,[37] maintaining a total ban on political advertising on television and radio is, however, likely to be held to be incompatible with ECHR Article 10.[38] The Government itself recognised a risk that this may be so in the Explanatory Notes to the draft Bill.[39] On the other hand, it is equally clear that restrictions short of an outright ban may be justifiable if they can be shown to advance one of the legitimate aims in Article 10(2), and to be a proportionate and non-discriminatory way of pursuing that aim as required by Article 10(2) both alone and taken together with Article 14. We recommend that the Government examine ways in which workable and Convention-compatible restrictions of this kind could be included in the Bill.

    The powers of OFCOM in relation to changes of control of Channel 3 services

  36. Clauses 234 and 235 give to OFCOM a power to intervene where a body corporate providing a Channel 3 service may be taken over by another body and it appears to OFCOM that the change may prejudice the quality or range of programmes. The power would be capable of engaging rights under ECHR Article 10 and Article 1 of Protocol No. 1. However, the steps which OFCOM are limited to making appropriate changes to the licence under which the service would operate in order to safeguard the quality and range of programmes. OFCOM could not stop the transaction or require anyone to divest themselves of property. In our view, the measures serve a legitimate aim and are proportionate to the aim in response to a pressing social need, and are therefore likely to be justifiable both under ECHR Article 10 and under Article 1 of Protocol No. 1.

    Issues arising from the Licensing of Receivers

    Powers of entry to premises under warrant, etc.

  38.  These powers, under clause 243 of the draft Bill, would engage the right to respect for private and family life and the home under ECHR Article 8. A person (not necessarily a police officer) may be authorised to enter premises, using reasonable force if necessary, to search for an unlicensed television receiver which, it is reasonably suspected, is on premises (including a dwelling). It is noteworthy that the power to issue a warrant would not seem to be regulated by the provisions of the Police and Criminal Evidence Act 1984, Part II, because the warrant would not be issued to a constable; and the powers to issue and execute the warrant would not be delimited by the terms of clause 243 in such a way as to ensure that any interference with rights under Article 8(1) would be justifiable under Article 8(2) as being in accordance with the law, and necessary in a democratic society (i.e. a proportionate response to a pressing social need) for (in this case) the prevention of crime or the economic well-being of the country (which could include the collection of the licence fee). We consider that this provision needs to be amended by including, on the face of the legislation, conditions for issuing and executing warrants which would secure compliance with ECHR Article 8.


See Thoma v. Luxembourg, Eur. Ct. HR, judgment of 29 March 2001: disproportionate to require journalist who had quoted someone else's comment to say formally that he did not hold that view Back

21   The European Court of Human Rights will shortly be giving two judgments concerning the applicability of Art. 6(1) to administrative processes in relation to tax matters in Västberga Taxi Aktiebolag and Vulic v. Sweden (App. No. 36985/97; admissibility decision of 3 April 2001) and Allard v. Sweden (App. No. 35179/97, admissibility decision of 22 May 2001). These judgments may be relevant to the applicability of Art. 6 to OFCOM's powers under clause 159 of the draft Bill Back

22   Clause 181(5) provides: "Those detailed requirements are-(a) that the relevant television services provided by the public service broadcasters (taken together) comprise a public service for the dissemination of information and for the provision of education and entertainment; (b) that cultural activity in the United Kingdom, and its diversity, are reflected, supported and stimulated by the representation in those services (taken together) of drama, comedy and music and by the treatment of other visual and performing arts; (c) that those services (taken together) provide, for the purpose of facilitating fair and well-informed debate on news and current affairs, a comprehensive and authoritative coverage of news and current affairs in, and in the different parts of, the United Kingdom and from around the world; (d) that those services (taken together) satisfy a wide range of different sporting and other leisure activities; (e) that those services (taken together) include what appears to OFCOM to be a suitable quantity of high quality and range of programmes on educational matters and dealing with matters of specialist interest, religion and social issues; (f) that those services (taken together) include what appears to OFCOM to be a suitable quantity of high quality and original programmes for children and young people; (g) that those services (taken together) include what appears to OFCOM to be sufficient programmes that reflect the lives and concerns of different communities and cultural interests and traditions within the United Kingdom, and locally in different parts of the United Kingdom; (h) that those services (taken together), so far as they include programmes made in the United Kingdom, include what appears to OFCOM to be an appropriate range and proportion of programmes made outside the M25 area." Back

23   App. No. 44802/98, admissibility decision of 7 Nov. 2000 Back

24   The Court referred in this regard to Brook v. UK, App. No. 38218/97, admissibility decision of 11 July 2000, concerning an application for permission to launch a short-wave radio broadcast service Back

25   See Broadcasting Act 1990, ss. 8 and 92; R. v. Radio Authority, ex parte Bull [1998] QB 294, CA Back

26   App. No. 24699/94, judgment of 28 June 2001 Back

27   see paras. 60-61 of the judgment Back

28   ibid paras. 70-71 of the judgment Back

29   ibid para. 74 Back

30   ibid para. 75 Back

31   On the weight to be given to avoidance of prior restraint of political expression in the media, see Prolife Alliance v. British Broadcasting Corporation [2002] EWCA Civ. 297, CA, where it was held that the BBC had violated the rights of the applicants, a registered political party, under ECHR Art. 10 by refusing to broadcast their party election broadcast because it included disturbing images of aborted foetuses. The respondent has applied for leave to appeal to the House of Lords Back

32   [1997] 3 SCR 569. The Court held that a statutory restriction on spending by third parties on advertising in support of an election candidate or referendum option infringed the right to freedom of expression under section 2 of the Charter. The Court went on to decide that a restriction might be justifiable under section 1, because it advanced substantial and compelling ends. In particular, it helped to guarantee the democratic nature of referendums by securing equality between the options, and preventing the affluent from dominating political discourse and driving out opportunities for others to put their views to the public). However, the restriction in that case was struck down as being more intrusive than necessary to achieve the object in view. Had the restriction been narrowly tailored to achieve the objective, it would have been justifiable. See further Thomson Newspapers Company v. Attorney General of Canada [1998] 1 SCR 577, SC Canada. For discussion of the factual assumptions underlying the Libman decision, and particularly the assumption that restricting advertising enhances free and informed electoral decision-making, see Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, vol. 1 (Ottawa: Ministry of Supply and Services, 1991), p. 324; R. Moon, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000), pp. 96-102 Back

33   See, e.g., Buckley v. Valeo 424 US 1 (1976) Back

34   Australian Capital Television Pty. Co.Ltd. v. Commonwealth (1992) 177 CLR 106  Back

35   App. No. 24699/94, judgment of 28 June 2001 Back

36   See, e.g., Grieve v. Douglas-Home 1965 SC 315. In Bowman v. United Kingdom, Eur. Ct. HR, RJD 1998-I, judgment of 19 February 1998, it was held that a limit of 5 on the amount someone other than a candidate can spend on campaigns to advance or prevent the election of a candidate (Representation of the People Act 1983, s. 75) violated ECHR Art. 10. For the present law, see Political Parties, Elections and Referendums Act 2000, Part VI, allowing more generous spending limits to people or bodies who register with the Electoral Commission as 'recognised third parties' Back

37   App. No. 24699/94, judgment of 28 June 2001 Back

38   See Prolife Alliance v. British Broadcasting Corporation [2002] EWCA Civ. 297, CA. The respondent has applied for leave to appeal to the House of Lords Back

39   See Cm. 5508-II, p. 73, para. 365 Back

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