R (Autonomous Non-Profit Organisation TV-Novosti) v The Office of Communications

The claimant (Novosti) was the broadcaster of a television service, RT, operated under licence from Ofcom.  Novosti was funded by the Russian Government.  Ofcom had found breaches of its Broadcasting Code in seven programmes broadcast by Novosti.  These breaches were all in respect of the requirement to maintain “due impartiality” in matters of political or industrial controversy and matters relating to current public policy.  This requirement is provided for in the Communications Act 2003 and reflected in Ofcom’s code and code guidance.

The seven programmes dealt with the subjects of the Salisbury poisonings, the role of the US government in Syria, and the Ukrainian Government’s position on Roma gypsies and Nazism.

Ofcom considered the breaches sufficiently serious that it imposed a financial penalty on Novosti of £200,000.

Novosti sought judicial review of Ofcom’s breach adjudications and of the sanction imposed, asking the Court to quash the decisions on the basis that they were unlawful on a number of grounds.

Whether, as alleged by Novosti:

(1) as a matter of statutory interpretation, the “dominant media narrative” or other broadcasts on the RT service were to be taken into account by Ofcom when assessing whether there had been a breach of the due impartiality provisions of the 2003 Act and the code;

(2) the due impartiality provisions of the 2003 Act and code, if interpreted without reference to the “dominant media narrative” or other broadcasts on the RT service, infringed Novosti’s rights guaranteed by Article 10 of the ECHR;

(3) the sanction was disproportionate.

Dismissing the application:

(1)  There was no requirement for Ofcom to consider any “dominant media narrative” or other programmes included within the broadcast service concerned when adjudicating on matters of due impartiality. On a proper construction the 2003 Act requires due balance in each programme (or linked programmes – about which there are specific provisions made and published by Ofcom) within a broadcaster’s schedule.

(2) Meeting the due impartiality requirements without consideration of such matters is not incompatible with Article 10.

The law recognises the special power and immediacy of broadcasting, such that broadcasters can lawfully be required to maintain due impartiality without reference to other media or to other of their own (unlinked) output.  The three-part scheme by which broadcasting is regulated under the 2003 Act to enhance democratic debate – due impartiality in programmes, a ban on political advertising, and the provision of free party political and party election broadcasts – reflects the importance of broadcasting as a medium for the propagation of information and opinion, perhaps even more than in the past given current concerns about the effect on the democratic process of news manipulation and of fake news.

(3) The sanction was not disproportionate given the actual and potential harm caused to democratic debate by politically partial broadcast programmes, and taking account of Novosti’s compliance record and turnover.

In respect of turnover, although the 2003 Act caps the penalty that can be applied to breaches of Novosti’s type of licence to the greater of 5% of “qualifying revenue” (essentially income derived by the licensee from advertising and subscription) or £250,000, Ofcom can consider turnover more generally in its assessment of what level within the cap should be imposed.

This is the most significant judicial review judgment yet in respect of Ofcom’s powers to interfere with political speech.  It will be of great comfort to the regulator.  Some questions remain, however, including the lawfulness of any consideration by Ofcom of the deterrent effect on other licensees of the sanctions it imposes, as is written into Ofcom’s Penalty Guidelines as a relevant factor, in view of the potential chilling effect.