Hong Kong/Amnesty. Deafened by the sound of silence

Stephen Grosz is a partner at Bindman & Partners, which acted for Amnesty International

“Listen. Can you hear it? It's the sound of the hillsides and fields of Rwanda, where in their hundreds and thousands the dead lie silent.”

This is a quote from the beginning of the advert which the British Section of Amnesty International wanted to broadcast on commercial radio.

The Broadcasting Act 1980 prohibits adverts by bodies “whose objects are wholly or mainly of a political nature”. The Radio Authority's code stipulates that this includes “issue campaigning for the purpose of influencing legislation or executive action by local or national government”.

Amnesty contended that they pursue humanitarian concerns and the respect for human dignity, which could not be political. The authority disagreed, ruling that Amnesty fell foul of the prohibition.

On 4 July, the Divisional Court (Lord Justice Kennedy and Mr Justice McCullough) dismissed Amnesty's application for judicial review and upheld the ban.

Amnesty argued that the ban on advertising by political bodies interfered with free speech, contrary to common law and Article 10 of the European Human Rights Convention.

Mr Justice McCullough held, and Lord Justice Kennedy agreed with him, that because the meaning of 'political' is uncertain the authority has a wide measure of discretion to decide what is unacceptable. He went on to say, however, that since the statute was not ambiguous, the convention had no part to play in its interpretation.

Lord Justice Kennedy considered that since the advertising ban is a part of a licensing system, which Article 10 specifically allows, the convention was “unlikely to have any significant part to play” in construing the statute. Both judges held that the ban had an important part to play in protecting the rights of listeners.

Mr Justice McCullough doubted “whether there is, or should be, any right to subject an unwilling listener to opinions he does not want to hear, least of all perhaps through the medium of political advertising”. This begs the very question which he was called on to consider. In argument, he had painted the picture of a poor listener in his bath, forced to listen to tales of atrocities in Rwanda and unable to reach the dial to turn off the radio.

Amnesty also submitted that the authority had failed to give proper weight to its charitable objectives, had concentrated too much on its methods as opposed to its objectives and had reached a perverse decision.

The court held that the authority was entitled to come to the conclusion it reached, and Mr Justice McCullough added that it was often not possible to separate objects from methods. He also rejected the suggestion that certain humanitarian concerns should be considered as being beyond the scope of political controversy.

In his view: “Once a matter has become the subject of government policy, or once the need for legislation about it is advocated, particularly if the matter has become contentious, then, as it seems to me, it is open to [the Radio Authority] to treat it as 'political'.”

The judgments leave the authority with a virtually free hand to ban a wide range of advertisements, with minimal supervision by the courts.

The European Convention's guarantee of free speech plays little or no part in the process, apart from allowing the Radio Authority to preserve the delicate ears of sensitive listeners from anything which might disturb their composure.

Yet freedom of speech is nothing if it does not entail the freedom to offend or to express views which others might find distasteful or disturbing. And other bodies, such as Index on Censorship, have also been hit by the ruling.

While recognising that this is an important case, the court refused leave to appeal. The issue may yet end up finding its way to Strasbourg, where the Government may have difficulty explaining why the UK law prevents Amnesty from drawing public attention to human rights violations.

Meanwhile we may listen only to “the silence of ordinary, decent people who think that these things have nothing to do with them and they can do nothing to help”.