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15 April 2020

The importance of impartiality: R. (on the application of Autonomous Non-Profit Organisation TV- Novosti) v Office of Communications

The High Court has dismissed a claim for judicial review by Autonomous Non-Profit Organisation TV-Novosti (the Russian state-funded broadcaster, known as RT) against a decision by Ofcom that several of RT's programmes breached the requirement for ‘due impartiality’ contained in the Ofcom Broadcasting Code (the Code).

RT’s breaches of the Broadcasting Code

Under sections 319 and 320 of the Communications Act 2003 (the Act), Ofcom are required to set various standards for the contents of programmes, one of which is that “news included in television and radio services is presented with “due impartiality”. Accordingly, broadcasters must comply with the ‘due impartiality’ provisions contained in Rule 5 of the Code. RT held a licence to broadcast a television service in the UK and was subject to the Code.

Under the Code, broadcasters must report news with due accuracy and present news with due impartiality (rule 5.1), preserve due impartiality on matters of major political and current public policy in each programme or clearly linked and timely programmes (rule 5.11), and in dealing with major political and current public policy matters, include an appropriately wide range of significant views and giving such views due weight, again in clearly linked and timely programmes (rule 5.12).
Ofcom decided to open an investigation into a number of news and current affairs programmes broadcast by RT two of which had been broadcast in the wake of the poisoning of Sergei Skripal and his daughter, Yulia Skripal on 4 March 2018 in Salisbury (the Salisbury Poisoning) (the Sputnik Programmes). On 20 December 2018, Ofcom determined that seven television programmes broadcast by RT between 17 March and 26 April 2018 (including the Sputnik Programmes) had infringed the due impartiality provisions contained in rule 5 of the Code. Ofcom imposed a financial penalty of £200,000 on RT for the breaches it had identified.

RT’s challenge

RT accepted it had not met the due impartiality provisions contained in the Code. However, RT argued that Ofcom’s findings, and its interpretation or application of the relevant statutory and regulatory provisions, constituted a disproportionate interference with RT’s rights under Article 10 European Convention on Human Rights (ECHR); or alternatively, that the regulatory scheme was itself inconsistent with Article 10.

In particular, RT argued that Article 10 ECHR requires Ofcom to have regard not only to the particular programmes in dispute, but to the ‘dominant media narrative’, and to the broadcaster’s overall output, when assessing whether a programme has complied with the standard of due impartiality.

At the time of the broadcast of the Sputnik Programmes for example, RT said that the dominant media narrative was the UK Government’s perspective on these events, which was that the Russian state had been involved in the Salisbury Poisoning. RT did not need therefore to reproduce this perspective or alert their viewers to it in the programmes. Further, RT submitted that in its own news programmes broadcast around the time of the Sputnik Programmes it had alerted viewers to the UK Government’s perspective. RT submitted that if these matters had been taken into account the programmes would not be found to have breached the requirements of due impartiality.

The Court’s decision

The Court rejected these submissions, finding that the regulatory scheme does not permit consideration of the output of others, and the so-called dominant media narrative that such output may or may not create, when assessing whether a programme is duly impartial. This is because section 320(1)(b) of the Act, a provision which is reflected by rule 5.5 of the Code, states that due impartiality must be preserved ‘on the part of the person providing the service’.

In relation to other television programmes that RT itself had broadcast, other content may be relevant to the assessment of due impartiality if, and only if that other content forms part of a series of programmes and the programmes are clearly linked. It was found that RT’s other programmes were not clearly linked to those which were sanctioned.

The Judge considered the legitimate objective pursued by the Act and Code of due impartiality to be sufficiently important to justify limiting RT’s freedom under Article 10 ECHR. The Judge emphasised the fact that the scheme did not prevent RT from broadcasting any material, instead the requirement was that RT provided balance to ensure that there was due impartiality. Further, the way in which the balance was provided was a matter for RT to decide. The Act and the Code did no more than necessary to pursue the legitimate objective.

The Court considered the scheme, as well as Ofcom’s application of that scheme, and the sanction imposed in this case, were proportionate for the purposes of Article 10 and accordingly, the application by RT was dismissed.

In handing down her judgment, the Judge noted that the need for accuracy and impartiality is at least as great, if not greater than ever before, given current concerns about the effect on the democratic process of news manipulation and of fake news.

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