Insights Court of Appeal rules on due impartiality provisions under the Communications Act 2003 and Ofcom’s Broadcasting Code.



In December 2018, Ofcom determined that seven programmes broadcast by the Russian broadcaster Autonomous Non-Profit Organisation TV-Novosti, better known as RT, had breached the requirement of due impartiality under the Communications Act 2003 and the Ofcom Broadcasting Code. The programmes relevant to this appeal were: (i) two editions of “Sputnik” broadcast in March 2018 and April 2018, which concerned the poisoning of Sergei and Yulia Skripal in Salisbury on 4 March 2018, and (ii) a news programme broadcast in March 2018, and three editions of “Crosstalk” broadcast during April 2018, concerning the role of the US Government in Syria.

In July 2019, Ofcom fined RT £200,000 for its breaches. RT applied for judicial review of Ofcom’s infringement decisions and in March 2020 the Divisional Court dismissed RT’s case. RT appealed, arguing that the Divisional Court had been wrong to hold that: (i) the 2003 Act precluded Ofcom from taking into account other programmes broadcast on RT that were not explicitly linked to the Programmes over the same period addressing different viewpoints on the subjects in question; and (ii) the breach decisions did not infringe RT’s rights under Article 10 of the European Convention on Human Rights.


Due impartiality

Giving the lead judgment, with which the two other Justices agreed, Sir Geoffrey Vos, Master of the Rolls, noted that under s 319(2)(c) of the 2003 Act Ofcom is obliged to secure that news included in television services is presented with due impartiality and that the “[s]pecial impartiality requirements” of s 320, which deal with “matters of political or industrial controversy” and “matters relating to current public policy” and which the parties agreed were applicable to the programmes in question in this case, are complied with.

Whilst the 2003 Act does not refer to linked TV programmes, Sir Geoffrey said, Rule 5.6 of the Code implies that editorially linked programmes dealing with the same subject matter, which are part of a series, may be used by a broadcaster to achieve due impartiality. There is, however, no express legislative or Code requirement that Ofcom consider other, unlinked, programming.

Sir Geoffrey said that the definition of “due impartiality” in s 5 of the Code states expressly that “context” “is important”. The word “context” is defined in s 2 of the Code in relation to the rule that “[i]n applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”. The meaning of context is then said to include eight factors, including “what other programmes are scheduled before and after the programme or programmes concerned.

Ofcom had placed some weight on RT’s programming “before or after” the programmes in question but had placed less weight on it than on other contextual factors.

In Sir Geoffrey’s view, the Divisional Court had overstated the position when it found that other content broadcast by RT was relevant “if but only if that other content forms part of a series of programmes and the programmes are clearly linked”. As sections 2 and 5 of the Code make clear, programmes shown before or after the programmes in question are undoubtedly relevant context. Further, while Rule 5.11 provides, in addition to the other rules, that due impartiality should “be preserved on matters of major political … controversy” either in “each programme or in clearly linked and timely programmes”, it neither expressly nor impliedly excludes relevant context. The same was true of Rule 5.5, which provides that “impartiality may be achieved within a programme or over a series of programmes taken as a whole”.

In Sir Geoffrey’s view, “before or after” programmes need to be close in time to the programmes in question, i.e. adjacent, although the Code does not actually state that.

Sir Geoffrey agreed with the Divisional Court that unlinked and non-adjacent content is not relevant context. The thrust of the Code is that due impartiality must be met by each programme or by a linked series of programmes, he said. Further, Ofcom had been right to attach lesser weight to adjacent programming as compared to a linked series of programmes, as Ofcom was required by s 320(5) of the 2003 Act to provide rules in relation to what constitutes a series of programmes, which indicated that Parliament thought a series to be the best way to provide due impartiality outside the programme itself.

Sir Geoffrey concluded that RT was right to submit that the Divisional Court had been wrong to exclude altogether consideration of adjacent programmes as relevant context, but that Ofcom had correctly considered them and had applied an appropriate relative weighting to them. Unlinked and non-adjacent content was not relevant context either under the 2003 Act or the Code.

Article 10

RT submitted that when considering whether interference with RT’s Article 10 rights was necessary in a democratic society to protect a legitimate aim, which in this case was “the rights of others” under Article 10(2), the Divisional Court had erred by failing to consider certain contextual factors. These included the audience’s likely expectations, the dominant media narrative on other news platforms and in the press, and the low level of likely harm to RT’s viewers. RT said that the viewers knew what everyone else thought and got what they wanted and expected from the RT programmes in question, i.e., the Russian perspective.

Sir Geoffrey said that although the dominant media narrative was not mentioned in the legislation or the Code, Ofcom had referred to it, declining to consider it on the basis that attempting to provide due impartiality only by implicit means would not be appropriate and would not be giving” due weight to the “appropriately wide range of significant views” required under Rule 5.12.

As for the “others”, whose rights Ofcom had been seeking to protect, these were members of democratic society in general and the viewers of RT in particular. These viewers, likely to have been in the low thousands, had the right to receive duly impartial news programmes, particularly on subjects of political controversy. Further, Sir Geoffrey said, they would not all perceive the dominant media narrative in the same way.

In any event, the fact that there was a dominant media narrative that was different from the views expressed in RT’s programmes did not, by itself, override the special impartiality requirements that apply to programmes dealing with matters of political controversy and current public policy under s 320 of the 2003 Act.

Whilst it was true that Ofcom’s decisions did not analyse the harm that might be caused to viewers by the failure to present opposing views, it did analyse how the issues were treated in each of the programmes. It was Ofcom’s job to undertake that exercise and to evaluate whether action was needed in the interests of democratic society to protect the rights of others in the light of the degree of partiality in each programme. Further, the analysis was not limited to the harm caused to RT viewers but extended to the harm indirectly caused to members of society generally by the provision of news and current affairs that lacked due impartiality. The programmes were significantly partial: whilst they referred to opposing views, those references were either sarcastic or ridiculing. In any event, Sir Geoffrey said, the courts should give weight to Ofcom’s assessment and only second guess its expertise where it had obviously gone wrong.

In Sir Geoffrey’s view, even if it could be assumed that RT viewers might, in some or even most cases, be aware of the contrary views expressed in mainstream media, that was not sufficient to outweigh the requirement for due impartiality in programming on matters of political controversy. The number of viewers affected by the partial broadcasting was not the point, as Parliament had determined that such broadcasting must be duly impartial. The regulatory action taken by Ofcom was, therefore, appropriate and proportionate, as permitting a broadcaster to avoid the due impartiality requirement, even for one programme, would severely harm the quality of political discourse thereby harming the rights of others in Article 10(2) (Animal Defenders v UK [2013] 57 EHRR 21).

Accordingly, Ofcom’s enforcement actions against RT were necessary in a democratic society in the interests of the protection of the rights of members of that democratic society in general and the viewers of RT in particular. Ofcom had not infringed Article 10 because the legitimate objective of due impartiality pursued by the 2003 Act and the Code was sufficiently important to justify limiting RT’s freedom to broadcast the programmes, which did not themselves satisfy the due impartiality provisions.

The appeal was dismissed. (Autonomous non-profit organisation TV-Novosti v Ofcom [2021] EWCA Civ 1534 (26 October 2021) — to read the judgment in full, click here).