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    Thursday, 20 May 2010

    Stop whinging, get filming? abortion services ads on tv

    It has been announced that next Monday, Channel 4 is to carry an advertisement for abortion services paid for by Marie Stopes International (although not in N.Ireland). The advert will then be screened a number of further times throughout June. The advert evades the general restriction on such advertising imposed by the Broadcast Committee of Advertising Practice by dint of the non-profit status of its sponsor.

    Anti-abortion groups are said to be outraged and plan to challenge the legality of the decision (1,2,3).

    An alternative for the ProLife Alliance, the Society for the Protection of the Unborn Child, or others might be to produce their own adverts and present them for airing to the broadcasters.

    Any such advertisements would likely be faced with swift rejection on the basis of the ban on the broadcast of 'political' advertising that is now reflected in ss.319 and 321 of the Communications Act. The groups would then be free, however, to test a possible 'loop-hole' in the legislative restrictions previously identified by Lord Scott.

    Such an approach has been tried - and failed - before of course (most recently by the Animal Defenders International). The ProLife Alliance went so far as to register as a political party and to stand a sufficient number of candidates in Wales in the general election of 2001 to warrant a party election broadcast. They were denied the opportunity to broadcast the film as originally produced by a collective decision of UK broadcasters based not on objections to political advertising, but rather on the offensive material restriction. Neverheless, the subsequent majority decision of the House of Lords when the group sought judicial review demonstrated that we enjoy only a simulacrum right to freedom of political speech in the UK.

    When ADI sought a section 4 declaration of incompatibility regarding the ban on political advertising from the House of Lords, the court unanimously refused. The law lords considered that the restriction on freedom of speech was justified by the perceived need to prevent wealthy groups from dominating the public sphere (this conclusion was questionable on a number of bases). Having accepted the Government's (palpably untenable) line that there was no way in which a less restrictive mechanism could be devised, they said the restriction was necessary and not disproportionate. The Strasbourg court has repeatedly disagreed (see for the latest installments).

    Interestingly though, in part responding to elements of Strasbourg rulings, in ADI Lord Scott insisted that the House of Lords should not:

    be taken to be franking sections 319 and 321 against any possible attack made on article 10 grounds. The width of the statutory prohibition is remarkable... a good deal of commercial advertising is likely to be objectionable to the principles of some section of the viewing public. For example, the broadcasting of an advertisement encouraging people to patronise some particular zoo or circus would be likely to offend ADI and its supporters; the broadcasting of an advertisement encouraging people to eat burgers of various sorts would be likely to offend organisations that disagree with the manner in which beef cattle are reared or slaughtered or both; the broadcasting of advertisements encouraging people to buy a turkey for Christmas dinner would be likely to offend organisations who want the intensive rearing of poultry banned; and so on. Why should these organisations not counter the broadcasting of advertisements that offend their principles with the broadcasting of their own advertisements promoting their principles? It was not suggested that the purpose of ADI's "My Mate's a Primate" campaign was to counter the broadcasting of advertisements promoting any zoo or zoos in which primates are kept in cages but if that had been the case the arguments justifying the statutory prohibition might have been difficult...I conclude, therefore, that there may be respects in which sections 319 and 321 are incompatible with article 10 (at [41]-[42]).

    Any takers?


    Anonymous said...

    Simply because this allows an opportunity to highlight one of the most principled defences of free speech in recent times, here is an extract from Lord Scott's speech in ProLife Alliance:

    96 The conclusion to which the broadcasters came could not, in my opinion, have been reached without a significant and fatal undervaluing of two connected features of the case: first, that the programme was to constitute a party election broadcast; second, that the only relevant criterion for a justifiable rejection on offensiveness grounds was that the rejection be necessary for the protection of the right of homeowners not to be subjected to offensive material in their own homes.

    97 The importance of the general election context of the Alliance's proposed programme cannot be overstated. We are fortunate enough to live in what is often described as, and I believe to be, a mature democracy. In a mature democracy political parties are entitled, and expected, to place their policies before the public so that the public can express its opinion on them at the polls. The constitutional importance of this entitlement and expectation is enhanced at election time.

    98 If, 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, I find it difficult to understand on what possible basis it could properly be rejected as being "offensive to public feeling". 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, in my opinion, the public in a mature democracy are not entitled to be offended by the broadcasting of such a programme. A refusal to transmit such a programme based upon the belief that the programme would be "offensive to very large numbers of viewers" (the letter of 17 May 2001) would not, in my opinion, be capable of being described as "necessary in a democratic society …. for the protection of …. rights of others". Such a refusal would, on the contrary, be positively inimical to the values of a democratic society, to which values it must be assumed that the public adhere.

    99 One of the disturbing features of our present democracy is so-called voter-apathy. The percentage of registered voters who vote at general elections is regrettably low. A broadcasters' 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, seriously undervalues their political maturity and can only promote the voter-apathy to which I have referred.

    Anonymous said...

    The number of abortions conducted in the UK was down in the last year in figures released just hours after the first 'abortion advert' was aired on television.

    Figures from the Department of Health (DoH) said that in 2009 the total number of abortions in England and Wales stood at 189,100, compared to 195,296 the year before.

    However, of these, some 40 per cent were for medical reasons, while one per cent were conducted because of a risk the baby would be born handicapped.

    The DoH said the abortion rate was highest at 33 per 1,000 for women aged 19, 20 and 21, while the under-16 abortion rate was four in 1,000 and the under-18 rate 17.6 per 1,000 women, both lower than in 2008.

    Some 91 per cent of abortions carried out were under 13 weeks gestation, the DoH added.

    The figures – which came out this morning – are timely given the debate surrounding last night's 'abortion advert', aired for the first time by Marie Stopes.

    Pro-life charity Life has since written to the Advertising Standards Authority (ASA) to complain about the ad. In a sample letter on its website, the group said: "Whatever one's opinion of abortion, it is incontrovertibly true that it ends the life of an existing human individual and we ought therefore to resist any measure that tends to trivialise abortion, or to make it appear as inconsequential as any other consumer choice.

    "Allowing organisations such as Marie Stopes, for whom abortions are part of their core business, to advertise on television alongside normal businesses carmakers and insurance companies is very likely to have this effect."

    But Marie Stopes says the ad will allow the question of abortion to be more openly discussed. Dana Hovig, Marie Stopes International's chief executive said: "Last year alone we received 350,000 calls to our 24-hour helpline. Clearly there are hundreds of thousands of women who want and need sexual health information and advice, and access to services.

    "Marie Stopes International provides such support in a safe, non-judgemental environment. We hope the new 'Are you late?' [television] campaign will encourage people to talk about abortion more openly and honestly, and empower women to make confident, informed choices about their sexual health."