Editorial: Can money outdo democracy?

Some fear that we might legalise the indirect political TV campaigns of America

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One thing upon which most Europeans would agree is that we do not want politics like that in America, where money dominates everything. That is the ghastly prospect held out by alarmists if, as expected, the European Court of Human Rights rules tomorrow in favour of the chimpanzee.

As we report today, the Grand Chamber, the appeal court of the European Court, is likely to rule in favour of Animal Defenders, which wanted to show an advertisement for its My Mate's a Primate campaign on British television. The 20-second commercial showed a young girl in a cage, with a caption saying: "A chimp has the mental and emotional age of a four-year-old child." It went on to show a chimpanzee with a voiceover saying: "Although they share 98 per cent of our genetic make-up they are still caged and abused to entertain."

It is against the law in Britain to show such "political" advertising on television. The definition of "political" in the Communications Act 2003 is wide, covering not just attempts to influence the outcome of elections but also to bring about a change in the law or the policies of governments or public officials anywhere in the world.

Animal Defenders argues that the British law is contrary to the right to freedom of expression, protected by article 10 of the European Convention on Human Rights. So it is. The question is whether the public interest is served by the British system of a blanket ban on political advertising on television balanced by free party political broadcasts and, at the last election, the televised leaders' debates.

Our view is that this arrangement has served us well enough, but technology is changing and the restriction of free expression in the 2003 Act goes too far. That has not been a particularly burdensome restriction, but one of the great virtues of the European Convention is that it does eventually force us to consider such fundamental questions from first principles. And the principle here is that organisations such as Animal Defenders, which last week succeeded in its campaign to ban wild animals from British circuses, should have the right to advertise on television.

If that is what the Grand Chamber decides tomorrow, that does not mean that British law will have to be changed to allow all political advertising. It may be that a simple amendment of the definition of "political" is all that is required, so that it applies only to elections. The Charity Commission recently allowed a similar relaxation in its definition of the political activities in which charities were permitted to engage.

Naturally, we should consider, in addition to human rights law and British statute law, the law of unintended consequences. Some people will fear that, by allowing charities and cuddly animal campaigners on to television, we would legalise the kind of indirect political campaigns that channel so much money in America. But the notorious political action committees, or PACs, in the States are those that seek to influence elections or referendums, and the crucial point about the American system is that parties are so much weaker, forcing candidates to raise money for their personal campaigns.

If the European Court of Human Rights asks Britain to respect the right of freedom of expression tomorrow, we have nothing to fear.

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