Maltese law regulating political advertising poses a conflicting situation because the same norm is not applied across the board in a uniform, standardised and coherent manner to all media.

...Malta – ...which retain(s) the absolute broadcasting ban on political advertising – is living in a legal dichotomy- Kevin Aquilina

While in the case of the print medium and the internet, political advertising is the norm where it is unhindered from and unimpeded by regulatory control, the same cannot be said for political advertising on the broadcasting media where it is either totally banned outright or, where permitted, is subjected to tight and rigid regulatory supervision and control. Hence, freedom of political expression conveyed through advertising is in an ambivalent situation differing from one medium to another.

While some, though not all, European municipal laws prohibit the broadcasting of political advertising and other European national laws allow it, subject to certain stringent safeguards and regulatory measures, the judgements delivered by the European Court of Human Rights and by the Maltese courts are not in synchronisation with Maltese law of political advertising on the broadcasting media. On the contrary, these judgements are critical of a total and straightforward broadcasting ban of political advertising and, where they do admit such a restriction, they consider the immediacy and powerful effect of the broadcasting media at reaching more voters than other media do and that, in certain well-defined situations, it is in the public interest to allow restrictions on the broadcasting of political advertising.

European state law and practice is divided as to whether political advertising should be allowed or prohibited on the broadcasting media. The European Platform of Regulatory Authorities had surveyed European national law and practice in 2006 and observed that there is no clarity of meaning as to what constitutes “political advertising”. There were countries with no statutory or legal definition of political advertising, which had no such definition on an administrative level, which retained a broadcasting ban on paid political advertising, which allowed paid political advertising and which employed a more restricted scope of the ban.

Insofar as case law on political advertising goes, noteworthy are the following judgements of the European Court of Human Rights: (1) VgT Verein Gegen Tierfabriken v. Switzerland (in all, three judgements were delivered by the European Court on this case) and (2) TV Vest AS & Rogaland Pensjonistparti v. Norway. A relevant Maltese case on political advertising is General Workers’ Union v. Broadcasting Authority.

Various reasons have been adduced to justify a broadcasting ban on political advertising. These comprise the following:

• The government of the day can spend as much as it wants of taxpayers’ money on any cause it decides to promote to the detriment of the opposition political party(ies) or opposing lobby groups. The government has the advantage of levying all those taxes it needs to promote a particular policy through political advertising on the broadcasting media. This would undoubtedly give an unfair advantage to the government of the day.

• If political parties are allowed paid political advertising on the broadcasting media, then it is only the large parties that would benefit from such a concession as they have the finances to put through their message in such political adverts. Smaller parties will end up having little, if any, access to the broadcasting media when compared to the intensive bombarding campaigns of political advertising by the large parties. Such practice is discriminatory in nature and runs against the principle of equality of means and access to the broadcasting media.

• Political advertising sows division, can be negative, especially when, instead of proposing a particular policy, idea or opinion, it tends to denigrate the opponent, bringing about division in a country, unwarrantedly increasing tensions and being the source for the eruption of violence.

• There is an unwarranted increase in court proceedings of libel suits, especially during electoral campaigns leading to elections.

• Editorial independence and the freedom of the press are at stake as influential commercial undertakings can put pressure on editors as what to cover or ignore in their broadcasting media simply because, through the money they pay in political advertising, they can call the shots in terms of the editorial policy of that medium.

• The broadcasting media are considered to be highly influential, enjoy wide audiences when compared to other media and deliver the message promptly and instantaneous.

• Political advertising is one- sided and of low quality, thereby reducing the broadcaster’s reputation for neutrality and impartiality, especially if the broadcaster happens to be the public service broadcaster.

On the other hand, the broadcasting ban on political advertising has been criticised on the following grounds:

• It applies only to the broadcasting media.

• Different treatment is afforded on the broadcasting media to political programmes and political advertising.

• The absolute broadcasting ban on political advertising is discriminatory as broadcasters are losing a source of income.

• Small organisations are the end losers if they are not allowed to have recourse to paid political broadcasting as their voice will never make it to society at large.

• No distinction is made between an announcement and a political advert.

• Such a ban gives considerable power to the regulator to decide what is acceptable to be aired or not.

• Such a ban smacks of political censorship because it is not a system of ex post facto regulation, which is applied but ex ante censorship.

While the European Court of Human Rights has moved on from an absolute ban of political advertising to a qualified ban, not all Council of Europe member states have adopted this position in their laws.

The Maltese courts have followed the European Court’s case of VgT but the Maltese broadcasting regulator continues to follow the absolute ban on political advertising once Parliament has not amended the Broadcasting Act to bring it in line with the European Court and the Maltese courts’ judgements. This means that Malta – like some Council of Europe member states, which retain the absolute broadcasting ban on political advertising – is living in a legal dichotomy. Parliament should, thus, intervene to bring Maltese law on political advertising on the broadcasting media in line with the judgements of the European Courts of Human Rights and Maltese courts applying the judgements of the European Court.

Prof. Aquilina is dean of the Faculty of Laws at the University of Malta.

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.