Margarita Simonyan, editor-in-chief of RT television news network

Margarita Simonyan, the feisty Editor-in-chief of RT (formerly Russia Today), may increasingly be having second thoughts about starting a legal challenge to Ofcom over its application of the due impartiality rules. In the first ever ruling by the Court of Appeal (CA) on these rules, RT has lost yet again and the legal costs must be mounting up. All media lawyers and compliance people interested in due impartiality should give the CA decision at least a quick read because it holds several lessons. (See https://www.judiciary.uk/judgments/novosti-v-ofcom/ )

The background dates back to the end of 2018 when Ofcom held that seven RT programmes (chiefly about the Skripal poisoning in Salisbury and Western intervention in the Syrian civil war) breached the due impartiality rules. The regulator imposed a swingeing fine of £200,000 on RT. Understandably in my view RT were shocked by the size of the fine, but they also took issue with the way Ofcom was applying the due impartiality rules.

In particular they believed: the fine was disproportionate; Ofcom should take account of the “dominant media narrative” about a story being broadcast on other channels when deciding whether its treatment on RT breached the due impartiality rules; and Ofcom’s application of the rules breached the right to freedom of expression because the regulator did not set out clearly what the harm was caused by the breaches of due impartiality.

Ofcom won on all points in the judicial review before the Divisional Court (DC) and there has now been the same result (with one interesting variation) before the CA.

So what are the lessons?

Lesson One. Think VERY carefully before starting a judicial review against the regulator. It is well known that the courts are reluctant to interfere with decisions of expert regulators, especially in areas where they are given (as with due impartiality) considerable latitude. This point has been underlined yet again by the Court of Appeal decision in this case.

Lesson Two. Make sure programmes which potentially raise impartiality issues are complied by people who are experienced in this area. As I regularly told broadcasters when at Ofcom, impartiality compliance is complex and is as much an art as a science. Experience, good judgement, and training are crucial. It is interesting that when the lead judge in the CA, Sir Geoffrey Vos, watched the seven RT broadcasts his immediate response was: “the Programmes were each partial and unbalanced. They were seemingly deliberately so.” When RT transmitted these programmes their compliance team must have taken their eye off the ball. Clearly RT have learnt this (expensive) lesson because there is no evidence since the end of 2018 of any Code breaches recorded by Ofcom against the station – despite the continuing bad relations between the United Kingdom and Russia.

Lesson Three. The due impartiality rules will continue to be applied by Ofcom for the foreseeable future as they have been in recent years. Despite the revolution in the way news and current affairs are consumed, there is no legal basis for broadcasters to argue that when assessing a particular programme against the impartiality rules, Ofcom should take account of programmes transmitted on other channels. Due impartiality legal and compliance experts should however note one important clarification by the CA. When a programme deals with a “major political controversy” (see Code Rules 5.11 and 5.12) Ofcom can (and should) take account of any programmes broadcast immediately before the broadcast being investigated by Ofcom – even if they are not explicitly linked to that broadcast.

Tim Davie, BBC Director-General

Lesson Four. None of this affects the current debate about impartiality in BBC news and current affairs. The present Director-General, Tim Davie, has now been in post for just over a year and seems to understand that in various (especially pro-government) quarters there is genuine concern that BBC news is not perceived as impartial – not only in the way stories are presented but their prominence and in the choice of stories to be covered. It will be interesting to see how Davie proposes to deal with this issue in the year ahead.

Paul Dacre, former editor of The Daily Mail

Lesson Five. Nor does this affect who will be appointed the new chair of Ofcom. There are still rumours that Boris Johnson is trying to force through the appointment of Paul Dacre, well-known for his critical views of the BBC and BIg Tech. Some left wing commentators in particular have expressed deep concern at the prospect. Having been rejected as “unappointable” by one independent panel, there is good reason to think Dacre will not be appointed the second time around. But even if he is appointed, Dacre would have have much less power to influence events at Ofcom than many believe. Ofcom’s current powers to regulate the BBC (and in future to regulate social media) are limited. Tim Davie and the BBC Board have – rightly – much more influence over affairs at the Corporation than any chair of Ofcom.