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EUROPEAN COURT OF HUMAN RIGHTS

907
11.12.2008

Press release issued by the Registrar (source)

CHAMBER JUDGMENT: TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of TV Vest AS & Rogaland Pensjonistparti v. Norway (application no. 21132/05).

The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights concerning a fine imposed on TV Vest for breaching Norway’s prohibition on television broadcasting of political advertisements. (The judgment is available only in English.)

1. Principal facts

The applicants are TV Vest AS Ltd. – a television company in Stavanger, Rogaland, on the west coast of Norway – and the regional branch of a Norwegian political party, the Rogaland Pensioners Party (Rogaland Pensjonistparti).

The case concerned a fine imposed on TV Vest for showing adverts for the Pensioners Party without authorisation prior to the local and regional elections of 2003.

On 12 August 2003 TV Vest notified the State Media Administration (Statens medieforvaltning) of its intention to air three, 15-second adverts seven times a day over an eight-day period for the Pensioners Party.

The broadcasts were shown between 14 August and 13 September 2003 at a cost of 30,000 Norwegian kroner (NOK) (approximately 3,730 euros (EUR)) to the party. The advertisements consisted of a short portrayal of the Pensioners Party and a call to vote for it in the forthcoming elections.

On 27 August 2003 the Media Administration warned TV Vest that they could be fined for breaching the prohibition on political advertising on television, imposed under section 10-3 of the Broadcasting Act 1992 and section 10-2 of the Broadcasting Regulation. TV Vest nevertheless continued with the broadcasts, arguing that it was a question of freedom of expression and that the Pensioners Party would otherwise be denied fair media exposure.

On 10 September 2003 the Media Administration fined TV Vest NOK 35,000 (approximately EUR 4,351) for breaching the prohibition on political advertising. TV Vest appealed against the decision to Oslo City Court, submitting that the relevant provisions were incompatible with the right to freedom of expression guaranteed by Article 100 of the Norwegian Constitution and Article 10 of the European Convention on Human Rights. Its appeal was rejected. By a judgment of 23 February 2004 the City Court upheld the Media Administration’s decision.

TV Vest then appealed unsuccessfully to the Supreme Court (Høyesterett) which found, among other things, that allowing political parties and interest groups to advertise on television would give richer parties and groups more scope for marketing their opinions than their poorer counterparts. The court also maintained that the Pensioners Party had many other means available to put across its message to the public.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 12 May 2005 and declared admissible on 29 November 2007. A hearing took place in public in the Human Rights Building, Strasbourg, on 26 June 2008.

The Governments of the Republic of Ireland and the United Kingdom were granted leave to intervene as third parties in the written procedure.

Judgment was given by a Chamber of seven judges, composed as follows:

• Christos Rozakis (Greece), President,
• Nina Vajić (Croatia),
• Anatoly Kovler (Russia),
• Khanlar Hajiyev (Azerbaijan),
• Dean Spielmann (Luxembourg),
• Sverre Erik Jebens (Norway),
• Giorgio Malinverni (Switzerland), judges,

  and also Søren Nielsen, Section Registrar.

  3. Summary of the judgment

  Complaint

  Relying on Article 10 of the Convention, the applicants complained about the fine imposed on TV Vest.

  Decision of the Court

  Article 10

  The Court observed that TV Vest had been fined on the ground that it had broadcast political adverts for the Pensioners Party in breach of the prohibition on television broadcasting of political advertising laid down in the Broadcasting Act. That prohibition was permanent and absolute and applied only to television, political advertising in other media being permitted.

  The Court noted the absence of European consensus in this area; every country had its history and traditions which gave rise to different views on the necessity of such a ban and whether it was “necessary” for the proper functioning of the “democratic” system in the respective States. The Court accepted that that lack of consensus spoke in favour of granting States greater discretion than would normally be allowed in decisions with regard to restrictions on political debate. Indeed, Norway, supported by the third party intervening Governments, argued that there had been no viable alternative to a blanket ban.

  The rationale for the statutory prohibition on television broadcasting of political advertising had been, as stated by the Supreme Court, the assumption that allowing the use of such a powerful and pervasive form and medium of expression had been likely to reduce the quality of political debate generally. Complex issues could easily be distorted and financially powerful groups would get greater opportunities for marketing their opinions.

  The Court noted, however, that the Pensioners Party did not come under the category of parties or groups that had been the primary targets of the prohibition. The Pensioners Party in fact belonged to a category which the ban in principle had intended to protect. Furthermore, in contrast to the major political parties, which had been given wide edited television coverage, the Pensioners Party had hardly been mentioned. Therefore, paid advertising on television had been the sole means for the Pensioners Party to get its message across to the public through that type of medium. Having been denied this possibility under the law, the Pensioners Party had moreover been put at a disadvantage in comparison to the major parties.

  Finally, the Court considered that the specific advertising at issue, namely a short description of the Pensioners Party and a call to vote, had not contained elements such as to lower the quality of political debate or offend various sensitivities.

  In those circumstances, the Court concluded that the fact that television had a more immediate and powerful effect than other media, could not justify the prohibition and fine imposed on TV Vest.

  In the Court’s view, there had not therefore been a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition and the means deployed to achieve that aim. The restriction which the prohibition and the imposition of the fine had entailed on the applicants’ exercise of their freedom of expression could not therefore be regarded as having been necessary in a democratic society, in violation of Article 10.

  Judge Jebens expressed a concurring opinion, which is annexed to the judgment.

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