Human rights: Regulating news broadcast impartiality

In R (on the application of Star China Media) v Office of Communications) [2023] EWCA Civ 843 (14 July 2023), the Court of Appeal (Civil Division) considered the lawfulness in Ofcom fining Star China Ltd for broadcasting news programmes which, in its assessment, infringed the requirement of due impartiality.

Ofcom imposed a penalty of £125,000 for five breaches of the requirement, contained in the Communications Act 2003, through the broadcast of five news programmes between August and November 2019 on the Ofcom-licensed China Global Television Network channel.

Legal framework

Article 10 of the ECHR provides that everyone has the right to freedom of expression. It is a qualified right and is subject to conditions and restrictions that are, inter alia, prescribed by law and necessary in a democratic society.

Section 319 of the 2003 Act provides for Ofcom to produce standards through codes. Objectives include that news be presented with due impartiality (s 319(2)(c)) and in compliance with s 320, which contains “special impartiality requirements”.

The requirements include the preservation of due impartiality as respects all matters of political or industrial controversy, and matters relating to current public policy.

The Ofcom Broadcasting Code was drafted considering the Human Rights Act 1998 and the ECHR, in particular article 10. Section 5, rule 5.1 of the code provides that its objectives are to ensure news is reported with due accuracy and presented with due impartiality.

Section 1.4 of Ofcom’s Penalty Guidelines provides inter alia that the central objective of imposing a penalty is deterrence, and the level of the penalty must be sufficient to deter the business from contravening regulatory requirements, and to deter the wider industry from doing so.

Essential facts

The first four news programmes were broadcast within a 22-day period. All five focused on the protests in Hong Kong relative to the Government’s Extradition Law Amendment Bill, which would have allowed criminal suspects in Hong Kong to be sent to mainland China for trial. The protests were organised by the Anti-Extradition Law Amendment Bill Movement.

On 26 May 2020, Ofcom concluded the programmes were in breach of Section 5, rules 5.1, 5.11 and 5.12 of its Broadcasting Code. Ofcom assessed the programmes as one-sided and associating those protesting with sole responsibility for the violence that had occurred. It also highlighted its purpose to achieve effective general deterrence when imposing a penalty.

On 3 November 2020, Ofcom issued its 21-page preliminary view stating it was minded to impose a financial penalty of £125,000. On 4 February 2021, Ofcom terminated Star China’s broadcasting licence with immediate effect, for reasons connected with control of Star China. On 8 March 2021, Ofcom’s sanction decision confirmed the £125,000 penalty. Star China resisted the imposition of a penalty throughout, and challenged the legality of Ofcom’s decision in the High Court: [2022] EWHC 3136 (Admin). Its case laid particular emphasis on the importance of the article 10 right to impart information without interference.

Swift J required to scrutinise the reasons for Ofcom’s interference with article 10 rights, under reference to Ofcom’s role under ss 319-320. The above considerations were articulated in R (TV-Novosti) v OFCOM [2022] 1 WLR 481 as whether Ofcom had “obviously gone wrong” in its assessment.

The judge considered that the penalty was a justified interference: Star China’s submission did not come close to demonstrating an unjustified interference with article 10 rights. Star China appealed.

Court of Appeal decision

Star China advanced that Ofcom could have lawfully imposed half the indicated penalty, saying that had the licence not been revoked, it would have imposed the full amount. The penalty was not the least restrictive means of achieving the legitimate objective of due impartiality. Ofcom had ignored the revocation of Star China’s licence, since which there could be no continuing deterrent effect on the licensee.

Sir Geoffrey Vos MR, who also sat in Novosti, confirmed that the approach adopted by Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] 1 AC 1312 at para 28, and the Court of Appeal in Novosti at paras 61-62, should be followed. Explaining the fundamental rationale of the democratic process, in the context of a ban on political advertising, Lord Bingham stated: “it is highly desirable that the playing field of debate should be so far as practicable level… it is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated”.

Novosti involved a challenge to Ofcom’s decision to sanction Russia Today. There, the court rejected the argument that the dominant media narrative justified a one-sided approach, stating that “the dominant media narrative… does not, by itself, override the special impartiality requirements that apply to programmes dealing with matters of political controversy and current public policy”.

Affirming Swift J, the court in Star China held that Ofcom’s decision was justified and proportionate to the legitimate aim of ensuring that news reporting satisfied the due impartiality requirements. It was within the margin of appreciation accorded to Ofcom as the expert and experienced broadcasting regulator (para 5).

Commentary

This judgment emphasises the importance of Ofcom in ensuring a viewer’s right to receive news without interference, caveated by that news being impartial and in the interests of a democratic society. It reaffirms Ofcom’s role as a regulator and the exercise conducted by the judiciary when assessing whether (a) a broadcaster has acted contrary to article 10 of the ECHR, and (b) Ofcom has complied with its statutory duty.