Case No. CO-2850-2005

82.Foreseeability is inherent in the requirement that restrictions must be “prescribed by law”. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able, if need be with appropriate advice, to foresee to a degree that is reasonable in the circumstances, the consequences which any given action may entail (Sunday Times v United Kingdom (1979) 2 EHRR 245, ECtHR paragraph 49). 83.There is no express power in the 1999 Act clearly permitting the defendant to make the decision. But Schedule 10, paragraph 1(3) of the 1999 Act provides that:“it shall be within the capacity of Transport for London to do such things and enter into such transactions as are calculated to facilitate, or are conducive or incidental to, the discharge of any of its functions”.84.The defendant’s advertising policy is stated to comply with section 404(2) of the Act, but does not state the provision, if any, under which it is made. 85.The general words in paragraph 1(3) of Schedule 10 to the 1999 Act entitle the defendant to have an advertising policy, but there is no specific power in sections 154-155 or in Schedule 10 to the 1999 Act permitting the defendant to institute a complete ban on advertising in a particular geographic location on the basis that it might cause offence to a section of the public. Such general words should be presumed to have been enacted as subject to fundamental rights and construed as such, pursuant to the principle of legality (R v Home Secretary, ex parte Simms [2000] 2 AC 115, per Lord Steyn at 130C-G).86.Furthermore, it is not possible to foresee, to any reasonable degree, which part of this Advertising Policy, if any, permitted the defendant to find that North Cyprus could not be advertised at all because of the “substantial health warning” allegedly given by the FCO. As I have already stated, this part of the decision does not appear to have been made under any identifiable provision and could not have been anticipated by the claimants in the circumstances of this case.87.For the reasons I have already given, it is not possible to foresee, to any reasonable degree, that paragraphs 7.1d and 7.1k of the Defendant’s advertising policy would lead to the taking of the decision.88.Further, it is impossible to see how the images and words employed in the first claimant’s advertisement could be likely to cause: “widespread or serious offence to members of the public or sections of the public, on account of the product or service being advertised the wording or design of the advertisement or inference contained therein”.89.No offensive product or service was offered by this advertisement, which merely illustrated the cultural and environmental delight of Northern Cyprus. The images and words used could not have caused offence unless the “section of the public” referred to by the defendant was seriously offended by the use of the words “North Cyprus”. The advertisement carried no political message. Reliance has been placed on the content of the website www.go-northcyprus.com as a source of offence sought but the words in the policy:“the nature of the product or service being advertised the wording or design of the advertisement or inference contained therein” do not foreseeably cover the separate content of a website referred to in the advertisement.90.Even if literally construed, the words in paragraph 7.1d may extend as far as contended by the defendant, the principle of legality operates to subordinate those words to the rights of free expression.91.The principle of construction is particular apposite in relation to paragraph 7.1k of the defendant’s advertising policy. The words “images or messages that relate to matters of public controversy and sensitivity” are extremely general.92.Paragraph 7.1k should not be permitted such a broad reading as to render the words “North Cyprus” a statement which relates to matters of public controversy and sensitivity, where the effect is a breach of the fundamental right of the claimants to provide and the public to receive the information provided in the November 2004 advertisement: the relationship, if any, is far too remote.