Airing the Truth

The television networks have already made public their first decisions to censor, on grounds of decency, pictures emanating from the war in Iraq.

On Sunday Channel 5 announced that it had pictures of action "too disturbing to show here". Other UK broadcasters are doubtless under pressure to sanitise their pictures due to the legal prohibition on offending against good taste and decency.

By contrast, Al-Jazeera, the Arab-language satellite station, broadcast throughout the Arab world pictures described in a leading Sunday newspaper as "grisly and explicit images of the dead and wounded" in bombing assaults on Basra. These were reported to include "a child with the back of its skull blown off and bloodstained people being treated on the floor of a hospital."

The war in Iraq is an event of the most acute political significance. It precipitated the largest political protest in British history and will remain an issue on which hinge the political futures of some of the world's most powerful individuals. On what grounds, then, may the gatekeepers of images from Iraq assemble a sanitised collage which leaves most insidious consequences of war on the cutting-room floor?

The gruesome nature of such images, in and of itself, may no longer amount to sufficient legal justification. The 1998 Human Rights Act may have tipped towards the latter the balance between the networks' duty to refrain from offending standards of decency on one hand, and their (sometimes competing) obligation not impede free political speech. This may carry important ramifications for war reporting, and stretch the limits of the range of images transmittable for public broadcast.

In January 2002, the Court of Appeal heard the ProLife Alliance argue that its right to free political expression, protected by the Human Rights Act, bound the BBC, ITV, Channel 4, and Channel 5 to transmit a Pro Life party election broadcast (PEB). The advertisement showed graphic images of mangled foetuses that had been aborted. The footage included dismembered limbs and a separated head.

The ProLife Alliance argued that the networks' refusal to air the advertisement was not justified either by the duty on the private broadcasters, contained in the 1990 Broadcasting Act, not to include anything in their programmes which offended against good taste and decency or by the equivalent obligation in an agreement between the BBC and the UK government.

The alliance argued that it had a right to freedom of political expression and that this was violated by the decision to block transmission.

The Court of Appeal accepted these arguments. Lord Justice Laws ruled that "there is nothing gratuitous or sensational or untrue in the appellant's intended PEB. It is certainly graphic; and, as I have said, disturbing. But if we are to take political free speech seriously, those characteristics cannot begin to justify the censorship that was done in this case. Here the image is the message, or at least an important part of it. . . . They show what actually happens. . . . The appellant is entitled to show - not just tell - what happens."

By the same token, all broadcasters are bound by a legal duty to present news with "accuracy and impartiality". To what extent, then, does removal from the airwaves of the most terrible consequences of war do undue violence to debate and discussion that is central to the right to free political expression?

If the free expression rights of the ProLife Alliance are violated by refusal to broadcast gruesome but factual footage of dismembered foetuses, could it be argued that a breach of political expression, and distortion of the political debate, result from refusal to transmit the gruesome but truthful consequences of a war to which many are opposed?

The legal pendulum, at least, appears to be swinging in favour of honest and accurate depiction of the human consequences of political decision-making. This may, perhaps, be extendable to the human results of the decision to wage war.

Angela Ward is a barrister specialising in European Union and human rights law at 17 Bedford Row, London. She is also reader in the law faculty at the University of Essex, and a member of the Human Rights Centre.