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Cite as: about Abortions, Elvin, R v British Broadcasting Corporation ex parte ProLife Alliance: The Right to Free Speech, Standards of Taste and Decency, and the “, Truth”
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R v British Broadcasting Corporation ex parte ProLife Alliance: The Right to Free Speech, Standards of Taste and Decency, and the “Truth” about Abortions
Jesse Elvin,
Graduate Teaching AssistantLaw Department,
London School of Economics.
Copyright © Jesse Elvin, 2004
First published in Web Journal of Current Legal Issues
Summary
This note criticises the decision of the House of Lords in R v British Broadcasting Corporation ex parte ProLife Alliance [2003] UKHL 23. A majority of the Lords decided that the BBC had been entitled to refuse to televise a party political broadcast featuring “shocking” images of abortions because the images would have been offensive to the public. However, as Lord Scott said in a minority speech, the shock and disgust that the programme might have caused should not have outweighed the party’s right to express its political message in its chosen form.
Contents
Introduction
Introduction
Article 10 of the European Convention on Human Rights guarantees “the right to freedom of expression”, which includes “freedom … to … impart information and ideas without interference by public authority”. However, what exactly is the right protected by Article 10? Is it primarily a right of every citizen not to be prevented from expressing his opinions? Is there a human right to use a television channel? Is there a right not to have one’s access to public media denied on discriminatory, arbitrary or unreasonable grounds? If a political party’s election broadcast is factually accurate, not sensationalised, and is relevant to a lawful policy on which its candidates are standing for election, can it properly be rejected by broadcasters as being “offensive to public feeling”? All these issues were dealt with in R v British Broadcasting Corporation ex parte Prolife Alliance [2003] UKHL 23, where the House of Lords had to determine whether the BBC had been entitled to refuse to televise a party election broadcast containing “shocking” images of abortions on the ground that it would be offensive to public feeling. By a four to one majority ruling (Lords Nicholls, Hoffman, Millett and Walker in the majority, Lord Scott dissenting), it decided that the broadcasters had not done anything wrong. While some people may agree with the outcome of the case on the grounds that the broadcast would have been offensive to a large number of viewers, it is submitted that the decision is wrong. As Lord Scott said in the minority, if a political party’s election broadcast is factually accurate, not portrayed in a sensational manner, and is relevant to a lawful policy on which is candidates are standing for election, then the shock and disgust that the programme might cause ought not to outweigh that party’s right to express its political message in its chosen form.
The facts
The ProLife Alliance campaigns for the prohibition of abortion. It fielded enough candidates for the 2001 general election to entitle it to make one party election broadcast in Wales. It submitted a video to the BBC that contained prolonged and graphic images of aborted foetuses. Citing a non-statutory obligation under its agreement with the Secretary of State for National Heritage not to show offensive material, the BBC refused to screen these pictures, although it did not raise any objection regarding the rest of the video and later screened a revised version of it without the offending pictures. The ProLife Alliance commenced judicial review proceedings against the BBC, claiming that the BBC had acted unlawfully in rejecting the original version of the video.
The majority speeches
According to Lord Nicholls, the foundation of ProLife Alliance’s case was Article 10. Although this Article does not entitle anyone to make free television broadcasts, it does require that access to an important public medium of communication should not be refused on or granted subject to discriminatory, arbitrary or unreasonable grounds or conditions. Since the Alliance accepted that the offensive material restriction is not in itself an infringement of its convention right under Article 10, the only issue was whether the House of Lords, in the exercise of its supervisory role, should interfere with the BBC’s decision that the offensive material restriction precluded it from transmitting the programme proposed by the Alliance. He concluded that it should not. The pictures were distressing, and “the extent to which distressing scenes may be shown must be strictly limited, so long as the broadcasters remain subject to their existing obligation not to transmit offensive material. Parliament has imposed this restriction on broadcasters and has chosen to apply this restriction as much to party broadcasts as to other programmes” (para 12). Lord Millett agreed with this speech.
Lord Hoffman said that the thrust of the Alliance’s submissions was that provisions requiring broadcasters not to show offensive material were incompatible with its rights under Article 10, although the Alliance had never explicitly made this argument (para 52). For him, this ultimately amounted to determining “whether the requirements of taste and decency are a discriminatory, arbitrary or unreasonable condition for allowing a political party free access at election time to a particular medium, namely television” (para 62). Bringing some necessary “degree of practicality and common sense to this question” (para 69), he concluded that the standards are reasonable because they are “not particularly exacting”, are “part of the country’s cultural life and have created expectations on the part of the viewers as to what they will and will not be shown on the screens in their homes” (para 70). Since the BBC was entitled to apply standards of taste and decency, it was not possible for a court to say that it had erred in applying these standards to the proposed broadcast. In deciding whether members of the public would be likely to find the images offensive, the BBC, headed by women in principal decision-making roles in relation to this case, was better-placed to make a correct decision than the House of Lords: “[g]enerally accepted standards on these questions are not really a matter of intuition on the part of elderly male judges. The researches into public opinion by the BSC [the Broadcasting Standards Commission, a statutory body that, at the time of the ProLife decision, had a duty to draw up a code giving guidance to broadcasting bodies on standards of taste and decency(1) and the broadcasters would be superfluous if this were the case” (para 80). The BBC had plausibly decided that women who have had abortions constitute a significant number of viewers and that they would be likely to find the images offensive.
Lord Walker stated that public authorities should be left with room to make legitimate choices. The BBC had had to strike a balance between the Alliance’s right to freedom of expression and the right of the citizen “not to be shocked or affronted by inappropriate material transmitted into the privacy of his home” (para 123). It was not for the court to substitute its own view for that of the BBC, since it had not been shown that the BBC’s decision was wrong. The restriction on offensive material was not arbitrary or discriminatory in any relevant sense. “Images such as those in the Alliance’s video, transmitted into hundreds of thousands of homes, would indeed have extraordinary power to stir emotions and to influence opinions. But that is the justification for imposing on the broadcasters responsibility for excluding offensive material” (para 140).
The minority speech
Lord Scott decided that the BBC’s refusal to transmit the video in its original form engaged Article 10. While the Alliance did not have a right under this Article to make a broadcast, it was entitled to say that the criteria applied to its desired party election programme by the broadcasters in deciding whether to accept the programme should be no more severe than are necessary in a democratic society for certain specified reasons, such as for the protection of rights of others (Article 10(2)). He concluded that “[i]f, as here, a political party’s desired election broadcast is factually accurate, not sensationalised, and is relevant to a lawful policy on which its candidates are standing for election … [it is] difficult to understand on what possible basis it could properly be rejected as being ‘offensive to public feeling’” (para 98). He added that “voters in a mature democracy may strongly disagree with a policy being promoted by a televised party political broadcast but ought not to be offended by the fact that the policy is being promoted nor, if the promotion is factually accurate and not sensationalised, by the content of the programme. Indeed … the public in a mature democracy are not entitled to be offended by the broadcasting of such a programme” (ibid).
Commentary
It is easy to feel sympathy for the BBC. The Court of Appeal had found that it had acted unlawfully by allowing the shock and disgust that the Alliance’s programme might cause to viewers to outweigh that party’s right to express its political message in its chosen form. The BBC should have carried out a “proportionality” review in order to determine whether the social evil to be avoided justified the extent of the infringement on the Alliance’s rights. According to Andrew Geddis (Geddis 2002, p 621), the problem with the Court of Appeal’s analysis is that it is not clear how, in a legal sense, the BBC was really at fault. It “had to abide by the overarching legal instructions laid down for [it]” via its agreement with the Secretary of State for National Heritage (ibid). As Geddis says, these instructions are clear: the BBC has to decide if a programme meets its taste and decency obligations, and, if a programme does not, then the BBC must not screen it.
Perhaps the most important issue raised by ProLife is whether the requirements of taste and decency are an unreasonable condition under Article 10 for allowing a political party free access at election time to television. As Lord Hoffman noted, a condition concerning standards of taste and decency is neutral in the sense that it applies across the board to all political parties wishing to make political broadcasts, but it discriminates against a party that feels the need to breach the standards in order to get its message across (para 65). The issue then is whether it can be objectively justified.
According to Lord Hoffman, in deciding whether a condition as to the content of a party election broadcast (PEB) is unreasonable or discriminatory, it is relevant to consider whether it has any impact upon the particular democratic interest that offering the PEB was intended to advance. “For example, if political parties are given PEBs in connection with a referendum on whether we should join the Euro, it would be unreasonable to attach much weight to an objection by the Alliance that standards of taste and decency prevented them from using their PEB to best effect in advocating the case against abortion. The subject is unrelated to the democratic interest in providing a PEB” (para 67).
Lord Hoffman concluded that the Alliance PEB was unrelated to the specific policy of encouraging an informed choice at the ballot box. “Their views were of electoral concern, at any rate theoretically, to the voters in only six of the Welsh constituencies [the Alliance fielded six candidates in Wales for the 2001 general election]” (para 68). Furthermore, “abortion is not in this country a party political issue. It has for many years been the practice to allow members of Parliament a free vote on such issues” (ibid). Thus, “the Alliance broadcast had virtually nothing to do with the fact that a general election was taking place. The election merely gave it an opportunity to publicise its views in a way which would have been no more or less effective at any other time” (ibid).
The problem with this analysis is that the Alliance arguably was trying to encourage an informed choice at the ballot box, particularly in those constituencies where it had fielded candidates. All questions of social and economic policy are open to discussion in a general election, as his Lordship noted (ibid). Although the main political parties allow members of Parliament a free vote on abortion, voters can make a choice about this issue at a general election even in those constituencies where there are no anti-abortion parties fielding candidates: since they can see which candidates are standing for election, they can vote for one who publicly opposes the right to choose abortion or, conversely, refuse to vote for one who publicly supports this right. It seems to have escaped Lord Hoffman’s attention that voters at a general election can vote for individuals, rather than political parties. If a broadcast convinces a voter that the abortion law should be reformed so as either to ban abortions altogether or, at least, to impose much stricter controls than at present pertain, then this may affect his behaviour at the ballot box (he may not vote at all if all the candidates in his constituency publicly support the present regime).
Lord Hoffman sought to take a common sense approach, noting that it is in practice easy for a political party to comply with the standards, and observing that the standards have created expectations on the part of the viewers. However, standards are not justifiable simply because they are of long-standing existence, or “part of the country’s cultural life” (para 70). Nor are they justifiable simply because they have “created expectations on the part of the viewers” as to what they will be shown on television (ibid). As Lord Nicholls said, a central part of the ProLife Alliance’s claim “is that if people only knew what abortion actually involves, and could see the reality for themselves, they would think again about the desirability of abortion” (para 11, summarising the Alliance’s argument). Thus, “[t]he disturbing nature of the pictures of mangled foetuses is a fundamental part of ProLife Alliance’s message. Conveying the message without the visual images significantly diminishes the impact of the message”(ibid). A rule forbidding the transmission of a factually accurate PEB that is not sensationalised, and is relevant to a lawful policy on which the relevant party’s candidates are standing for election, on the grounds that it would be offensive to large number of viewers is “positively inimical to the vales of a democratic society” (Lord Scott, para 98). As Lord Scott put it, a “mind-set that rejects a party election television programme, dealing with an issue of undeniable public importance such as abortion, on the ground that large numbers of the voting public would find the programme ‘offensive’ denigrates the voting public, treats them like children who need to be protected from the unpleasant realities of life, [and] seriously undervalues their political maturity” (para 99).
Since Lord Hoffman sought to bring some necessary “degree of practicality and common sense” to the question at hand, it is surprising that he did not consider the possibility that any offended viewers could have switched off their television sets or changed the channel. Some of Lord Walker’s reasoning is even more surprising. He seems to believe that the justification for making broadcasters responsible for excluding offensive material is that such material might have the power to influence opinions. However, there is nothing wrong with seeking to influence opinions per se. All PEBs seek to influence opinions: are broadcasters only to allow those that do not have “extraordinary power to stir emotions and to influence opinions”?
Does the citizen have “a right not to be shocked or affronted by inappropriate material transmitted into the privacy of his home”, as Lord Walker claimed? Counsel for the BBC, Mr Pannick, made a brief reference to Article 8 (the right to respect for private and family life, home and correspondence), but did not seek to develop the point. According to Lord Walker, it was “not necessary to consider whether … [the right not to be shocked] is a Convention right. Whether or not it is classified as a Convention right, it is in my view to be regarded as an ‘indisputable imperative’ in the language of the European Court of Human Rights in Chassagnou v France (1999) 29 EHRR 615, para 113. Neither the existence of the ‘watershed’ nor any specific warning broadcast before a programme can be relied on to provide protection, as the BBC and the independents recognise in their published codes” (para 123). Perhaps one day Lord Walker will explain how he reached this conclusion; in the meantime, it will remain a mystery.
Is the right not to be shocked by inappropriate material a legal right, the breach of which might sound in damages? The answer to this question is, “probably not”. The courts appear to be reluctant to award damages in tort on the basis of what people see, or do not see, on television. Hunter v Canary Wharf Ltd [1997] 2 All ER 426 suggests that an action will rarely if ever lie in private nuisance for interference with television reception, and the courts have often said that there can be no claim in tort for “mere” grief or anguish in relation to psychiatric harm (McLoughlin v O’Brian [1982] 2 All ER 298, p 311, per Lord Bridge; Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, p 925, per Lord Oliver; White v Chief Constable of South Yorkshire [1998] 3 WLR 1509, p 1518, per Lord Goff). Furthermore, even if an offensive broadcast, such as one depicting images of aborted foetuses, did produce a recognised psychiatric illness, then a court would still probably rule out a claim. After all, the House of Lords deemed the broadcasts of the Hillsborough stadium disaster in Alcock v Chief Constable of the South Yorkshire Police capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush in the stadium, but, amongst other things, ruled out the claims of those viewers who were affected in this way and thereby suffered psychiatric illnesses. According to the Lords in Alcock, the broadcast scenes could not reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system, and therefore failed to meet a requirement for a claim for negligently inflicted “nervous shock”. (The claimants had tried to sue the Chief Constable of the South Yorkshire Police, but, given the outcome of the case, they would presumably also have failed if they had tried to sue the broadcasters in tort.)
It is equally doubtful that a claim for shock produced by an offensive television broadcast could succeed in contract. First, viewers generally do not have contracts with terrestrial broadcasters. Second, a viewer would need to show that broadcasting “outrageous material” constituted a breach of a contractual term, and that it is appropriate to award damages for such a breach (the courts have been reluctant to award damages for non-pecuniary loss in respect of a breach of contract, although they have arguably become more sympathetic to such claims (see Farley v Skinner [2001] 3 WLR 899)).
Lord Scott set out in full the Article 10(2) heads under which restrictions on Article 10 rights can be justified. One of these heads concerns the need to protect the rights of others. He said that “the reference in Article 10(2) to the ‘rights of others’ need not be limited to strictly legal rights the breach of which sound in damages, and is well capable of extending to a recognition of the sense of outrage that might be felt by ordinary members of the public who in the privacy of their homes had switched on the television set and been confronted by gratuitously offensive material” (para 91). Prima facie, the problem with this approach is that once it is conceded that an election broadcast can be legitimately restricted in order to protect viewers from shock or outrage, then it is difficult to accept the conclusion reached by Lord Scott that the public are not entitled to be offended by the broadcasting of a factually accurate, not sensationalised, PEB. However, his point seems to be that viewers have a right not to be confronted by inappropriate offensive material, and that material is not inappropriate simply because it shocks or outrages viewers. Even so, his reading of the Convention is arguably not sufficiently mindful of the liberal caution against any restriction on any person’s conduct or speech unless that conduct or speech can be proved harmful to another.
One of the most interesting aspects of ProLife is Lord Hoffman’s observation about “intuition on the part of elderly male judges” (para 90). It does not seem entirely consistent with Lord Bridge’s complaint in Ruxley Electronics v Forsyth [1996] AC 344, p 354 that “the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75”. Surely the judges in the House of Lords are, as Lord Bridge would have it (ibid), “in the prime of judicial life” and, in the language of Lord Steyn in McFarlane v Tayside Health Board [2000] 2 AC 59, p 82, in touch with the instincts of “the traveller on the Underground”?
Lord Hoffman’s observation was a candid judicial recognition of the fact that, at the time that he delivered his speech in ProLife, women were still entirely absent in a judicial capacity in the highest court in the land. Given Brenda Hale’s appointment to the House of Lords, the court now has its first female judge. Did this absence of women matter? Perhaps if there were more female judges in the House of Lords we would not have a legal system where a defendant charged with murder could successfully plead “provocation” on the ground that it was “reasonable” for him to kill his girlfriend in a fit of jealous rage, since he was unduly jealous and possessive.(2) On the other hand, perhaps we would: according to Kate Malleson (Malleson 2002, p 65, referring to McGlynn 1999), “[i]t is surprisingly difficult to demonstrate that changing the composition of a judiciary, in particular the increase of women or lawyers from ethnic minorities, affects its decision-making”.
Bibliography
Geddis, A (2002) ‘What Future for Political Advertising on the United Kingdom’s Television Screens?’ [2002] Public Law 615
McGlynn, C (1999) ‘Judging Women Differently: Gender, the Judiciary, and Reform’, in S. Mills and N. Whitty (eds), Feminist Perspectives on Public Law (London: Cavendish Publishing Ltd), 100
Malleson, K (2002) ‘Safeguarding Judicial Impartiality’ 22 Legal Studies 53
(1) The Communications Act 2003 subsequently transferred this duty to a new regulator, the Office for Communications.