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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> GB News Ltd, R (On the Application Of) v The Office of Communications (OFCOM) [2025] EWHC 460 (Admin) (28 February 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/460.html Cite as: [2025] EWHC 460 (Admin), [2025] WLR(D) 129 |
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ADMINISTRATIVE
COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The King on the application of GB NEWS LIMITED |
Claimant |
|
– and – |
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THE OFFICE OF COMMUNICATIONS ('OFCOM') |
Defendant |
____________________
Miss Jessica Boyd KC, Mr David Glen & Mr Rowan Stennett (instructed by OFCOM) for the Defendant
Hearing dates: 29th & 30th January 2025
____________________
Crown Copyright ©
Mrs Justice Collins Rice :
Introduction
We are pioneers – leading the charge for a new kind of journalism. One that refuses to bow to convention or be swayed by those who shout loudest. We are here for everyone, not the establishment, nor just for popular opinion. We believe in elevating the unheard, giving them a platform, and creating a space where every voice is respected, valued, and heard. This is journalism for the people, by the people.
One of its points of distinctiveness has been hiring prominent politicians still active on the national stage to host their own topical discussion programmes. Current Reform UK Party leader Nigel Farage was given a prime-time show shortly after the launch, and Dehenna Davison, Lee Anderson, Esther McVey and Philip Davies have all had presenting roles while sitting as Conservative MPs. Former Conservative Cabinet Minister Jacob Rees-Mogg (now Sir Jacob) joined the broadcaster in 2023, on return to the backbenches, to present a regular topical discussion show, Jacob Rees-Mogg's State of the Nation, airing four times a week for an hour.
Legal framework
(a) Article 10 ECHR
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
… the rules need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them. Their application, including the manner in which any discretion will be exercised, should be reasonably predictable, if necessary with the assistance of expert advice. But except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise. It is enough that it lays down principles which are capable of being predictably applied to any situation.
As regards the requirement of foreseeability, the Court has repeatedly held that a norm cannot be regarded as a "law" within the meaning of art.10(2) unless it is formulated with sufficient precision to enable a person to regulate his or her conduct. That person must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice.
Again, at [145], regarding the standard as applied to professionals:
The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails.
However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.
Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen… Even when a point is ruled upon for the first time in an applicant's case, a violation of Article 7 of the Convention will not arise if the meaning given is both foreseeable and consistent with the essence of the offence…
Even in cases in which the interference with the applicants' right to freedom of expression had taken the form of a criminal "penalty", the Court has recognised the impossibility of attaining absolute precision in the framing of laws, especially in fields in which the situation changes according to the prevailing views of society, and has accepted that the need to avoid rigidity and keep pace with changing circumstances means that many laws are couched in terms which are to some extent vague and whose interpretation and application are questions of practice.
(b) The Communications Act 2003
319. OFCOM's standards code
(1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.
…
(3) The standards set by OFCOM under this section must be contained in one or more codes.
(2) The standards objectives are—
…
(c) that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with;
(d) that news included in television and radio services is reported with due accuracy;
…
Subsection (8) adds that for these purposes 'news' means 'news in whatever form it is included in a service'. 'Due impartiality' is not defined in the Act.
(4) In setting or revising any standards under this section, OFCOM must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of the following matters—
(a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
(c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of a programme's content can be brought to the attention of potential members of the audience;
(d) the likelihood of persons who are unaware of the nature of a programme's content being unintentionally exposed, by their own actions, to that content;
(e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section; and
(f) the desirability of maintaining the independence of editorial control over programme content.
That last consideration is notable. It is mindful of the Art.10 rights of broadcasters and their audiences, and indicates that there is inevitably a degree of balance looked for in the code-setting exercise.
(5) OFCOM must ensure that the standards from time to time in force under this section include—
(a) minimum standards applicable to all programmes included in television and radio services; and
(b) such other standards applicable to particular descriptions of programmes, or of television and radio services, as appear to them appropriate for securing the standards objectives.
279. News and current affairs programmes
(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing—
(a) that the programmes included in the channel include news programmes and current affairs programmes;
(b) that the news programmes and current affairs programmes included in the service are of high quality and deal with both national and international matters; and
(c) that the news programmes so included are broadcast for viewing at intervals throughout the period for which the channel is provided.
...
The section goes on to make distinct provision about the scheduling of news programmes and of current affairs programmes.
324. Setting and publication of standards
(1) Before setting standards under section 319, OFCOM must publish, in such manner as they think fit, a draft of the proposed code containing those standards.
(2) After publishing the draft code and before setting the standards, OFCOM must consult every person who holds a relevant licence and such of the following as they think fit—
(a) persons appearing to OFCOM to represent the interests of those who watch television programmes;
(b) persons appearing to OFCOM to represent the interests of those who make use of teletext services; and
(c) persons appearing to OFCOM to represent the interests of those who listen to sound programmes.
…
(5) If it appears to OFCOM that a body exists which represents the interests of a number of the persons who hold relevant licences, they may perform their duty under subsection (2) of consulting such persons, so far as it relates to the persons whose interests are so represented, by consulting that body.
(6) OFCOM may set standards under section 319 either—
(a) in the terms proposed in a draft code published under subsection (1); or
(b) with such modifications as OFCOM consider appropriate in the light of the consultation carried out as a result of subsections (2) to (5).
(7) Subsections (1) to (6) apply to a proposal by OFCOM to revise standards set under section 319 as they apply to a proposal to set such standards.
(8) Where OFCOM set standards under section 319, they must publish the code containing the standards in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the standards.
(9) Where OFCOM revise standards set under section 319, they shall so publish the code containing the standards as revised.
(10) Where OFCOM publish a code under subsection (8) or (9), they shall send a copy of it—
(a) to the Secretary of State;
(b) except in the case of a code containing standards for advertising or sponsorship, to the BBC; and
(c) if the code relates to television programme services, to S4C.
…
325. Observance of standards code
(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes conditions for securing—
(a) that standards set under section 319 are observed in the provision of that service; and
(b) that procedures for the handling and resolution of complaints about the observance of those standards are established and maintained.
(2) It shall be the duty of OFCOM themselves to establish procedures for the handling and resolution of complaints about the observance of standards set under section 319.
(3) OFCOM may from time to time make a report to the Secretary of State on any issues with respect to OFCOM's standards code which—
(a) have been identified by them in the course of carrying out their functions; and
(b) appear to them to raise questions of general broadcasting policy.
...
(c) The OFCOM Broadcasting Code
Section five: Due impartiality and due accuracy
This section relates to the concept of "due impartiality" as it applies to news and other programmes.
…
Principles
To ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality.
To ensure that the special impartiality requirements of the Act are complied with.
Rules
Meaning of "due impartiality"
"Due" is an important qualification to the concept of impartiality. Impartiality itself means not favouring one side over another. "Due" means adequate or appropriate to the subject and nature of the programme. So "due impartiality" does not mean an equal division of time has to be given to every view, or that every argument and every facet of every argument has to be represented. The approach to due impartiality may vary according to the nature of the subject, the type of programme and channel, the likely expectation of the audience as to content, and the extent to which the content and approach is signalled to the audience. Context, as defined in Section two: Harm and offence of the Code, is important.
Due impartiality and due accuracy in news
5.1: News, in whatever form, must be reported with due accuracy and presented with due impartiality.
5.2: Significant mistakes in news should normally be acknowledged and corrected on air quickly …
5.3: No politician may be used as a newsreader, interviewer or reporter in any news programmes unless, exceptionally, it is editorially justified. In that case, the political allegiance of that person must be made clear to the audience.
…
Meaning of "context"
Context includes (but is not limited to):
- the editorial content of the programme, programmes or series;
- the service on which the material is broadcast;
- the time of broadcast;
- what other programmes are scheduled before and after the programme or programmes concerned;
- the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally or programmes of a particular description;
- the likely size and composition of the potential audience and likely expectation of the audience;
- the extent to which the nature of the content can be brought to the attention of the potential audience for example by giving information; and
- the effect of the material on viewers or listeners who may come across it unawares.
…
(d) Published OFCOM Guidance on the Broadcasting Code
1.8. In terms of this section of the Code (i.e. the requirement for 'due impartiality' and 'due accuracy'), news in whatever form would include news bulletins, news flashes and daily news magazine programmes. Just because material is broadcast on a 'rolling news' channel does not necessarily mean that the material would be characterised as 'news' content.
and
1.10. Rule 5.1 is potentially applicable to any topic included in news programming, and not just matters of political or industrial controversy and matters relating to current public policy. There is no requirement on broadcasters to provide an alternative viewpoint in all news stories or all issues in the news. However, all news stories must be reported with due accuracy and presented with due impartiality i.e. impartiality adequate or appropriate to the subject.
1.20. The use of politicians as reporters or presenters in news programmes could be problematic in the context of the requirement for due impartiality. A politician is likely to include an elected representative e.g. an MP or councillor, a candidate, an applicant to be a candidate or a prospective candidate (that is a candidate for election who knows they have been chosen to represent a party at an election), an employee of a political party or an activist.
1.21. A previous Ofcom decision in this area is London Greek Radio.
Can politicians present TV and radio shows? How our rules apply
Kevin Bakhurst, Group Director for Broadcasting and Online Content, explains the rules for politicians presenting and appearing on television programmes.
There has been a lot of recent discussion about politicians presenting, and appearing on, television and radio programmes.
So this is a good opportunity to clarify our rules in this area.
In general, serving politicians cannot be a newsreader, interviewer or reporter in any news programme. They are allowed to present other kinds of shows, however, including current affairs. Sometimes those programmes may be on channels that also broadcast news; what matters here is the format of the particular show.
The right to freedom of expression is a really important factor here. Broadcasters should be free to make editorial and creative choices. As the viewer or listener, you have the right to receive a range of information and ideas.
But generally speaking, if it's a news programme, a politician cannot present. This includes a ban on candidates doing so during an election period.
What exactly is a news programme?
Every programme is different, but here are some typical factors that could lead us to classify content as a news programme:
- a newsreader presenting directly to the audience;
- a running order or list of stories, often in short form;
- the use of reporters or correspondents to deliver packages or live reports; and/or
- a mix of video and reporter items.
Factors that could lead us to classify content as current affairs (in other words, not 'news'), include:
- a more long-form programme;
- extensive discussion, analysis or interviews with guests, often live; and
- long-form video reports.
(e) OFCOM's investigatory procedures
GB News's present challenge
(a) The OFCOM decisions challenged
Politicians acted as a newsreader, news interviewer or news reporter in sequences which constituted news for the purposes of Section Five of the Code, without exceptional justification, and news was therefore not presented with due impartiality.
Ofcom considered that the programmes in question were both news and current affairs programmes. Programmes can feature a mix of news and non-news content and move between the two. However, if a licensee chooses to use a politician as a presenter, it must take steps to ensure they do not act as a newsreader, news interviewer or news reporter.
…
The rationale for the restriction on politicians acting as newsreaders, news interviewers or news reporters is clear – politicians represent a political party or position and are therefore inherently partial on topical issues. …
(b) Grounds of challenge
(1) OFCOM erred in law in its interpretation of Rules 5.1 and 5.3.
a. In relation to Rule 5.3, it erred in considering it applicable to news content in any or all programmes, rather than being restricted to 'news programmes'.
b. In relation to Rule 5.1, it erred in considering it to prohibit any politician ever delivering news content (otherwise than by reference to exceptional editorial justification) irrespective of individual context, circumstances or facts.
(2) OFCOM's interpretation is incompatible with Article 10. Its quasi-legislative approach to making new interpretations of the Code in these decisions was not reasonably foreseeable and was not prescribed by law.
(3) OFCOM erred in law in its application of its own procedural rules in the investigations which led to the first of these decisions. It impermissibly widened the original scope of its investigation into a breach of Rule 5.3, after issuing its Preliminary View, by extending it to include an alleged breach of Rule 5.1 also, and proceeding to issue a second Preliminary View and claiming impermissibly that that amounted to compliance with its Procedures rather than a departure from its Procedures which required advance notice and an explanation (neither of which occurred). GB News does not complain, however, of substantive procedural unfairness.
Consideration
(a) The interpretative questions
(b) Interpreting Rule 5.3
(c) The relationship between Rule 5.3 and Rule 5.1
(d) OFCOM's competing analysis
(e) Section 324 of the 2003 Act: OFCOM's statutory duties in relation to the Code
(f) Conclusions on the interpretation of Rule 5
(g) Article 10
(h) The procedural challenge
Decision and next steps