21 July 2003
Party election broadcasts (PEBs) are carried by all the major broadcasters in the run-up to UK elections. They are the only opportunity for political parties to broadcast a TV item that they themselves produce and control. As such, although many viewers may simply regard them as a chance to make a cup of tea, considerable stock is placed on them by the parties.
A long-running campaign by the ProLife Alliance to include footage of abortions and aborted foetuses in its party election broadcasts was defeated in the House of Lords on 19 May.
The Lords found in favour of the BBC, overturning a Court of Appeal decision that would have required broadcasters to show "prolonged and graphic images of the product of suction abortionâ€¦ aborted foetuses in a mangled and mutilated state, tiny limbs, a separated head", footage that "many people would find distressing, even harrowing" (Lord Nicholls). The Lords effectively decided that the UK would not follow a model of political broadcasting where freedom of political speech was paramount and questions of taste and decency did not in reality arise. It also affirmed the role of the broadcasters in deciding what should reach the viewer, rather than the courts.
The restrictions on the broadcasts include a requirement that they must be lawful (for example, they must not contain defamatory material and not incite racial hatred) and that they must not "offend against good taste or decency" or be likely to "be offensive to public feeling". This last obligation - the form of this case - is imposed on the BBC by its charter and on the independent broadcasters by the Broadcasting Act 1990.
The broadcasters viewed the footage and refused to transmit it. The BBC and the other broadcasters explained that some images of aborted foetuses could be acceptable depending on the context, but "what is unacceptable is the cumulative effect of several minutes primarily devoted to such images". None of the broadcasters regarded the case as at the margin.
ProLife applied for a judicial review. It failed at first instance, but after the initial hearing it submitted two more versions of its broadcast, both of which were rejected by the broadcasters for the same reasons. Finally, it put forward a soundtrack that went out without any images other than the word 'censored'.
After the election ProLife renewed its application to the Court of Appeal to review the broadcasters' decision, and this time the court found in its favour. The court considered whether the refusal to transmit the broadcasts was an unwarranted restriction on the Article 10 right to freedom of expression. The Court of Appeal said that the real question was whether the considerations of taste and offensiveness were "a legal justification for the act of censorship" involved in banning the proposed election broadcast. Lord Justice Laws, in the leading judgment, thought that considerations of taste and decency would "very rarely" be adequate grounds for interfering with free political speech at election time, if the images were true.
This meant that if the points being made in a PEB by a party were accurate and relevant to the political agenda, the broadcasters would almost invariably be required to let it go ahead - issues of taste and decency would become all but redundant.
This means viewers could turn on the TV and come across images that the broadcasters would never dream of including in their own output. The judgment also required the BBC (and others) to take decisions about whether a PEB was truthful or not - an invidious position for a public broadcaster to be placed in. The decision was a charter for pressure groups to field candidates in order to obtain air time for sensational and headline-grabbing material. This was a concern that was particularly emphasised by the Electoral Commission in its 2003 report.
Against this background, the BBC appealed. The Lords took a different approach and found in favour of the BBC by four to one. It found that Parliament had imposed the same requirements (ie to ensure that material was not offensive) on election broadcasts as on any other material. It pointed out that ProLife did not argue that this restriction by Parliament was unlawful in principle, and therefore the question was whether the broadcasters had applied the right standard in this case. Parliament had entrusted this task to the broadcasters, and in this particular case their judgement could not be faulted.
ProLife has said it will take the case to the European Court of Human Rights.