So, after investigations lasting nine months, Ofcom finally pronounced. It has published its long-awaited decisions in the GB News cases on the vexed question of when (or if) politicians can present news or current affairs programmes.

Ofcom found that five GB News broadcasts fronted by three sitting Tory MPs, including Jacob Rees-Mogg (pictured above), breached due impartiality rules because politicians acted as newsreaders, interviewers or reporters in news programmes. The regulator put the controversial station on notice that it would consider imposing a sanction if there were further similar Code breaches. See: https://www.ofcom.org.uk/__data/assets/pdf_file/0029/280838/GB-News-Decisions-Five-Broadcast-Standards-Decisions.pdf

Since GB News starting using sitting Tory MPs as presenters of programmes dealing with current and controversial issues, many broadcasters and commentators have been outraged, complaining that this undermined impartiality in TV news and needed to be stopped. Ofcom’s decisions have now confirmed that GB News’ use of politicians as presenters did breach the impartiality rules in some instances – but not all. And the regulator has not, as yet, sanctioned the channel, as many of its critics wish.

Now the dust has settled, in this blog I want to explain why I think Ofcom acted as it did, and what these latest decisions mean for GB News, other broadcasters and media lawyers concerning due impartiality.

The five GB News cases concerned two editions of Jacob Rees-Mogg’s State of the Nation, and three programmes fronted by sitting Conservative MPs, Philip Davies and Esther McVey (pictured below), in May and June 2023. Each programme presented by the politicians was a mixture of discussion and comment on topical issues with news summaries read by a different presenter who was not a politician.

In each case, Ofcom started investigating under Rule 5.3. This states that in ‘news programmes’ no politician can be used as a newsreader, interviewer or reporter, unless ‘exceptionally, it is editorially justified.’ Ofcom (having drafted Preliminary Views finding GB News in breach of this rule alone and read the broadcaster’s robust replies, making some arguable points, in particular about the definition of ‘news programmes’) decided to investigate also under rule 5.1. This is the general rule (echoing the legislation) that ‘News, in whatever form, must be…presented with due impartiality.’

When the Code was published back in 2005, Rule 5.3 was inserted to make clear that as a matter of principle and public policy the due impartiality of broadcast news would be perceived to be undermined if politicians were able to act as newsreaders, interviewers or reporters in ‘news programmes’. ‘News programmes’ were (deliberately) not defined in the Code but Guidance on Rule 5.1 states (para 1.8) that ‘news, in whatever form’ includes ‘daily news magazine programmes.’

There was a consensus among broadcasters not to employ active ‘politicians’ (see Guidance on Rule 5.3, para 1.20) and especially sitting MPs as newsreaders, interviewers or reporters in ‘news programmes’, which mainstream broadcasters chose to interpret broadly to include almost all current affairs programmes. This consensus was challenged by GB News. When this GB News controversy started to bubble, Ofcom was forced to issue guidance in March 2023 making clear that politicians can present current affairs programmes but not news programmes. The guidance added, rather vaguely, that ‘what matters here is the format of the particular show’. (See: https://www.ofcom.org.uk/news-centre/2023/can-politicians-present-tv-and-radio-shows-how-our-rules-apply)

Takeaway 1: these GB News decisions for the first time give concrete examples for Ofcom regulatory purposes of when content embedded in what would otherwise be regarded as a current affairs programmes becomes ‘news’. In its decisions, Ofcom sets out various (non-exhaustive) factors the regulator would take into account in making this decision. Essentially it comes down to ‘feel’ and common sense: is the presenter presenting ‘news’ in some form to the viewer or listener? Rees-Mogg for example in the middle of one programme started to report the result of a civil trial of Donald Trump, while McVey and Davies read news headlines and gave factual details about UK railway strikes. Once content becomes ‘news’ of course, it cannot be presented by a ‘politician’. If GB News continues to use Rees-Mogg as a presenter in future, they must police this area carefully to ensure none of his contributions can reasonably be interpreted as ‘news’ content.

Takeway 2: the exception to Rule 5.3 (allowing a politician in a news programme to be a newsreader etc) is very narrow indeed. Ofcom provides a real example from a Rees-Mogg programme. There was a security incident at Buckingham Palace, the MP happened to have just been evacuated from the Palace and the GB News studio crossed to the MP to give a live report on this breaking news story. In these exceptional circumstances Ofcom said the MP acting as a reporter was editorially justified. (See: https://www.ofcom.org.uk/news-centre/2023/can-politicians-present-tv-and-radio-shows-how-our-rules-apply)

Takeaway 3: it will be very interesting when Ofcom concludes its outstanding GB News investigation about Nigel Farage under Rules 5.3 and 5.1 (Farage broadcast on 17 January 2024) whether it decides Farage is a ‘politician’ under 5.3 In my opinion he must be. Although not an MP, he is certainly an ‘activist’ (see Ofcom Guidance on 5.3). As a ‘politician’ Farage’s freedom of role as a presenter of topical issue programmes should be circumscribed like sitting Conservative MPs.

Takeaway 4: rule 5.3 is different to most other Code rules about due impartiality. It is a kind of ‘strict liability’ rule. Most rules in Section Five (eg Rules 5.1, 5.5 and 5.12) require Ofcom to explain why in the facts of a particular case due impartiality was not preserved eg an alternative viewpoint was not given sufficient/any weight. With Rule 5.3 a ‘politician’ is regarded as innately partial and therefore (unless there is exceptional editorial justification) automatically breaches 5.3 if he or she acts as newsreader, interviewer or reporter in a news programme. It is worth noting that another reason for Rule 5.3 is to prevent a politician benefitting from extra exposure in the media by being allowed to play these roles in news programmes.

Takeway 5: using ‘politicians’ to present current affairs programmes (or current affairs sections of broadcasts which contain both news and current affairs) has important implications for due impartiality. Since Ofcom will regard politicians as innately partial, it (and viewers) will understandably expect them to aware of alternative viewpoints to their own on controversial issues and take extra care to reflect these viewpoints appropriately in the content they present. Esther McVey (picture below) signally failed to do this when, as a sitting Tory MP, she interviewed the Conservative Chancellor, Jeremy Hunt, largely ignoring the viewpoint of opposition political parties. (See: https://www.ofcom.org.uk/__data/assets/pdf_file/0027/268146/Saturday-Morning-with-Esther-and-Philip,-GB-News,-11-March-2023.pdf).

Takeway 6: there is no need for Ofcom to amend existing rules (or add a new one) in the Broadcasting Code to deal with the issue of politicians as presenters in news programmes. These GB News decisions in my view show how the existing rules can be applied to achieve the desired legislative and public policy outcomes, and fairly balance the requirements of due impartiality against freedom of expression. It is ridiculous for GB News to claim these decisions are disproportionate or “chilling” for freedom of expression. Jacob Rees-Mogg MP can continue presenting programmes discussing controversial, topical issues. But in future he – and GB News – must ensure he does slide into presenting news (as opposed to commentary or discussion). Ofcom clearly took great time and care over drafting these decisions to make them resistant to court challenge. GB News would stand very little chance indeed of winning a judicial review.

Takeway 7: Ofcom must consider imposing a sanction on GB News if it repeatedly or seriously breaches the Code again – and not just breaches of Rules 5.1 and 5.3 specifically (where Ofcom has put the channel on notice about a sanction), but more generally. GB News’ compliance record is now poor in terms of the total number of breaches recorded, especially in the due impartiality area. Ofcom has summoned GB News in for meetings to discuss compliance. One has the inescapable impression that GB News has not taken compliance with the Code as seriously as it should. With a general election a racing certainty later in 2024, Ofcom has a duty to make sure all UK broadcasters – but especially GB News – respect due impartiality.