Reputation Update: High Court upholds Ofcom’s decision to fine broadcaster for failure to observe obligations of due impartiality

Posted: April 16, 2020

In the case of R (on the application of Autonomous Non-Profit Organisation TV – Novosti) -v- The Office of Communications, the High Court has confirmed that Ofcom’s prior ruling that a Russian-owned television broadcaster had breached the requirement of “due impartiality” was one that Ofcom was entitled to reach; and that the resulting interference with the broadcaster’s right to freedom of expression was legitimate. The High Court underscored the point that to allow a television service provider to avoid or circumvent the requirement of due impartiality would severely harm the quality of political discourse generally.

The claimant, a state-owned Russian broadcaster, had applied for judicial review of Ofcom’s findings that it had breached the “due impartiality” provisions of The Communications Act 2003 and imposing a fine for those breaches. It also challenged the compatibility of those provisions with the European Convention on Human Rights.

The claimant held a licence to broadcast a television service in the UK and as such is required to uphold “due impartiality” in news and television programmes. Following an Ofcom investigation into news and current affairs programmes broadcast by the claimant in order to assess its fitness to hold a UK broadcast licence, Ofcom ruled that:

  • seven out of ten programmes broadcast by the claimant breached the impartiality requirement;
  • in the circumstances, it was appropriate to impose a fine of £200,000 on the claimant.

The claimant did not dispute the partiality of the programmes in question, but maintained that Ofcom’s decisions represented a disproportionate interference with its right to freedom of expression and that in particular, Ofcom had failed to take proper account of the wider context, such as the “dominant media narrative” in the output from other broadcasters.

The High Court disagreed with this analysis, holding that Ofcom was not required to take account of the output of others, or the “dominant media narrative” that such output might create, when assessing whether a programme was duly impartial. The requirement was simply that due impartiality had to be preserved “on the part of the person providing the service” (i.e. with no reference to the wider context or output of other broadcasters). The fact that a viewer might obtain news from a number of different sources did not undermine the need for undue impartiality.

As to freedom of expression, the court found that the legitimate aim pursued by the law and the Ofcom Code was sufficiently important to justify limiting the claimant’s freedom to broadcast television programmes which did not satisfy the due impartiality provisions. The due impartiality requirement did not go beyond what was necessary to accomplish that aim and struck a fair balance between the claimant’s rights and those of the viewers. The fine imposed, though substantial, took account of the fact that the claimant had committed seven breaches in six weeks. It had also been entitled to have regard to the claimant’s commercial revenue and to the financial support available to it from the Russian state. Therefore, the fine was reasonable and proportionate.

The case is a useful reminder of the obligations faced by broadcasters under the Ofcom Code, and the potentially serious sanctions that await in the event of non-compliance, particularly in situations where there has been a pattern of non-compliance.

Jon Oakley, Partner, Simkins LLP