Christian radio station to appeal over banned advert

A Christian radio station has promised to appeal after the High Court upheld a ban on an advertisement asking listeners to take part in research on the marginalisation of Christians at work.

Mr Justice Silber, who rejected the application for judicial review, said the advert was rightly refused clearance by the Radio Advertising Clearance Centre (RACC) on the grounds that it amounted to political advertising.

London Christian Radio (LCR), owner of Premier Radio, wanted to broadcast a statement saying: 'Surveys have shown that over 60 per cent of active Christians consider that Christians are being increasingly marginalised in the workplace.

'We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society.'

Peter Kerridge, chief executive of LCR, said in his witness statement that the purpose of the advert was to gather accurate information from Christians to verify an initial survey on the extent of discrimination.

Kerridge said the information obtained would be raised with the Equality and Human Rights Commission and the government to make the point that 'there is not the same level of respect and tolerance towards Christians and Christian values and belief as there is for other groups, which, in a pluralistic society, is not acceptable, fair or democratic'.

The RACC refused clearance, on the grounds that advertisements were unacceptable if they sought to influence government policy in any way. LCR argued that, even if its advert fell within the statutory ban, this was incompatible with the radio station's right to freedom of expression under article 10 of the ECHR.

Ruling in R (on the application of London Christian Radio) v Radio Advertising Clearance Centre [2012] EWHC 1043 (Admin), Silber J said it was not in dispute that article 10 was engaged.

He referred to the judgment of the House of Lords in the Animal Defenders case, [2008] UKHL 15, in which the claimant charity campaigned against the use of animals 'to achieve changes in law and public policy'.

The law lords decided that the ban on political advertising in sections 319 and 321 of the Communications Act 2003 was necessary in a democratic society and compatible with article 10.

Mr Justice Silber said that Lord Bingham had explained in the ruling that there is 'a substantial margin of appreciation or deference' owed to the government in such matters.

'So if, which is not the case, I had been in any doubt about whether there had been an infringement on the claimant's article 10 rights, I would have come to the conclusion that such deference would have led to a conclusion that the claimant's article 10 rights had not been infringed,' Silber J said.

He said the culture secretary, who intervened in the LCR case, argued that the proposed advert fell 'fairly and squarely' within section 321 of the Act because it was 'directed towards a political end'.

Silber J said the question had to be looked at objectively, without considering the view of the advertiser.

He said the purpose of the ban on political advertising was to ensure that the public were protected from this form of advertising 'irrespective of the views or motives of the advertiser'.

Silber J said that if the motive of the advertiser was of decisive or of crucial importance, 'the mere fact that an advertiser could show that he did not intend to bring about one of the consequences set out in section 321(3) of the 2003 Act' meant that the advertisement might have to be cleared.

He added that there was 'nothing in the wording of the legislation which shows that the intent of the advertiser has any relevance'.

Silber J said that even after applying the 'anxious scrutiny' test, the advertisement was seeking to obtain information and it stated that such information would be used 'to inform the public debate' and 'to help make a fairer society'.

He said these activities fell 'well within' section 321 and rejected the application for judicial review.

On its website, Premier said it would appeal against the decision. Tom Ellis, partner at Aughton Ainsworth, who acted for the radio station, was quoted as saying the decision had 'wide implications, not just for Christians, but for freedom of speech generally'.