Research

The BSA and the Bill of Rights: A Practical Guide, 2012


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Date published: May 2012

Author: Steven Price

Scope and Methodology

  • Assess the robustness of the BSA’s freedom of expression analysis and provide practical guidance
  • Review of the Bill of Rights analysis in six BSA decisions in the context of general principles relating to proportionality and guidance from High Court decisions.

Results

  • The Authority generally does a very good job justifying its decisions. That is, its (non-Bill of Rights) general reasoning is rigorous and convincing. One effect of this is that its decisions to uphold complaints will seldom be substantively disproportionate.
  • Some flaws in the BSA’s proportionality methodology (some of which have been addressed in more recent BSA decisions) were identified.
  • Rigorous and principled proportionality reasoning, integrated in the decision, is likely to discourage anyone from challenging BSA decisions.
  • The BSA’s proportionality reasoning is getting better and better. In the 1990s, the Bill of Rights was hardly mentioned at all. For the first years of the new century, the BSA’s Bill of Rights analysis was little more than boilerplate. But the BSA has progressed to raising and addressing proportionality issues routinely, and its latest framework, represented in the Axford case, is its best attempt yet.
  • With a little tweaking the BSA’s approach would display a very sound proportionality methodology. It would require routine assessment of the value of the speech and the level of justification required, closer identification of the purposes of some of the standards and closer attention to the way those purposes are undermined by the broadcasts at issue, and the integration of assessment of penalty into the proportionality framework. This approach would simplify the decisions, as well as rendering them more consistent and better focused on competing principles.