Advert ban breached union's right, court rules

A court has upheld a constitutional application filed by the General Workers' Union and concluded that the Broadcasting Authority violated the union's fundamental human right to freedom of expression when it banned the union from advertising a notice on television.

The constitutional application was filed by Tony Zarb and James Persall, on behalf of the GWU, against the authority.

The union claimed that its fundamental human right to freedom of expression had been violated following a decision taken by the authority banning the union from advertising a notice on TV.

The ban, claimed the union, was not reasonably justified in a democratic society, and it requested the court to declare that the ban issued by the authority was in violation of its fundamental human rights and to provide it with a remedy.

The authority pleaded that it had not violated the union's rights and that the prohibition was necessary.

Mr Justice Gino Camilleri in the First Hall of the Civil Court heard that on August 17, 2000, the authority had declared that, in terms of the Third Schedule to the Broadcasting Act, advertising could not be of a political nature and that it was only the authority which could organise a scheme of political broadcasts.

The authority had found that the text of the advert faxed in by the union was political in nature and could not be broadcast.

According to the authority, in order for a political notice to be broadcast, the authority had to organise a schedule of political broadcasts and the union could apply to the authority for inclusion.

The authority's chief executive had told the court that when comments, whether in favour of against the workings of the government, were made these were considered to be of a political nature.

Mr Gino Camilleri declared that he was in no doubt that the advert in question was of a political nature.

The advert referred to social justice and indicated that there were some persons who were living comfortably while others were carrying all the burden alone.

The advert reflected on the workings of the government of the day. It had been broadcast a few times on two private television stations and had then been prohibited by the authority.

It was not reasonable, said the court, that for a political advert to be aired, the advertiser had first to request the authority to organise a schedule of political programmes.

In effect the authority could always refuse to organise such a schedule.

The authority, said the court, was bound to ensure balance in controversial matters of a political or industrial nature.

However this balance was not to be ensured by banning the broadcasting of adverts such as the one in issue. The individual's right to freedom of expression had also to be respected, and there ought to be regulations to ensure such a balance was maintained.

One wondered what the significance of the laws quoted by the authority was, when nowadays there was liberalisation in broadcasting. The major political parties had their own television and radio stations and broadcast their own news programmes. These programmes certainly contained political content.

It could be the case that the political parties' stations were balancing each other.

The GWU, said the court, was entitled to express its opinions even where these contained political elements.

The union was therefore entitled to broadcast adverts and to provide information of its opinions without interference from a public authority. The authority was therefore not justified in prohibiting the advert in issue, for there was nothing in the advert that was unjustifiable in a democratic society.

The court therefore upheld the union's application and declared that the GWU's fundamental human right to freedom of expression had been violated.