The news that the controversial Russian international broadcaster RT is challenging in court all seven of Ofcom’s recent breach findings against it is a bold move – and important for all UK broadcasters and media lawyers. It was just before Christmas that Ofcom published its decisions, and said that as a result it was minded to sanction RT (which might include stopping it broadcasting).
It is a bold move because in a judicial review (JR) it is normally difficult for anyone challenging the decision of a specialist regulator like Ofcom to win. RT has not yet made public the arguments it will put before the court. But from reading the published decisions one can make an educated guess: Ofcom did not take sufficient account of RT’s and the audience’s right to freedom of expression (especially since the programmes found in breach – like Peter Lavelle’s Crosstalk –contained ‘political speech’), or of the various contextual factors (eg audience expectations of this channel).
It will be a very important case for UK broadcasters and media lawyers. This is the first time Ofcom’s notoriously flexible due impartiality rules (Section Five of the Broadcasting Code) have ever been reviewed by the courts. Whatever the outcome, the judgement will contain crucial guidance to Ofcom and all UK broadcasters on the way Ofcom should apply these rules.
The due impartiality rules bite on some of the most important programming UK television and radio transmit: on the political controversies and current public policy issues of our time. They necessarily restrict freedom of expression. So Ofcom must apply the rules sparingly and provide sufficient reasoning whenever it finds a TV or radio station breached them – however controversial or unpopular the broadcaster is in some quarters.
We will find out whether the regulator did so in these cases later this year. By challenging Ofcom in this way, I think RT is doing all UK broadcasters a favour in the long run. For the first time the due impartiality rules and the way Ofcom applies them will be subject to independent judicial review.