Introduction

The case of Autonomous Non-Profit Organisation TV-Novosti, R (On the Application Of) v The Office of Communications ([2021] EWCA Civ 1534) represents a significant judicial examination of broadcast impartiality within the framework of the Communications Act 2003 and the Ofcom Broadcasting Code. The appellant, RT (formerly Russia Today), a UK-licensed broadcaster funded by the Russian government, challenged Ofcom’s determination that certain programmes breached impartiality requirements. The key issues revolved around the proper interpretation of due impartiality provisions and the balance between regulatory actions and broadcasters' rights under Article 10 of the European Convention on Human Rights.

Summary of the Judgment

The Court of Appeal upheld the decisions of the Divisional Court, affirming that Ofcom did not infringe RT’s Article 10 rights when imposing penalties for breaches of due impartiality. The court concluded that:

• **Due Impartiality Requirements:** RT failed to meet the standards of due impartiality in specific programmes dealing with politically sensitive issues such as the Salisbury poisoning and the US involvement in Syria.
• **Contextual Considerations:** While Ofcom considered adjacent programming as part of the context, it appropriately weighed this against the necessity of maintaining impartiality in each affected programme.
• **Article 10 Compliance:** The interference with RT’s freedom of expression was deemed necessary and proportionate to protect the rights of others, aligning with democratic societal interests.
• **Penalty Justification:** The imposed penalties were considered proportionate and necessary to enforce the due impartiality standards set by the 2003 Act and the Broadcasting Code.

Analysis

Precedents Cited

The judgment referenced several key cases to frame its analysis:

• R v. Shayler [2003] 1 AC 247: Emphasized the necessity of a meticulous examination of proportionality in restricting freedom of expression.
• Animal Defenders v. United Kingdom (2013) 57 EHRR 21: Highlighted the high standard of justification required for interfering with political speech under Article 10.
• Gaunt v. United Kingdom (2016) 63 EHRR SE15: Affirmed the need to respect regulatory expertise and give deference to regulatory bodies like Ofcom.

These precedents underscored the balance between freedom of expression and regulatory imperatives to maintain impartiality, informing the court’s approach to assessing proportionality and necessity.

Legal Reasoning

The court focused on interpreting the due impartiality provisions within the Communications Act 2003 and the Broadcasting Code, particularly sections 320 and related rules. Key points in the legal reasoning included:

• Definition of Due Impartiality: “Due” signifies an appropriate level of impartiality tailored to the programme’s subject matter, type, and audience expectations.
• Contextual Factors: The court examined how adjacent programming (programmes broadcast before and after the affected ones) could influence impartiality assessments, albeit giving less weight compared to linked series.
• Article 10 Balancing: The court assessed whether the interference with RT’s freedom of expression was justified under Article 10(2), emphasizing the protection of the rights of others and the maintenance of democratic discourse.
• Proportionality: The penalties imposed by Ofcom were scrutinized for being proportionate to the breaches and necessary to uphold the integrity of impartial broadcasting.

The court concluded that Ofcom's approach was both legally sound and proportionate, adequately balancing regulatory oversight with freedom of expression.

Impact

This judgment sets a significant precedent for broadcast regulation, particularly in contexts involving politically sensitive content. Its implications include:

• Enhanced Clarity on Impartiality: Broadcasters now have clearer guidelines on how due impartiality is assessed, especially regarding the use of linked programming to achieve impartiality.
• Regulatory Authority Affirmed: The decision reinforces the authority of regulatory bodies like Ofcom to enforce impartiality standards without overstepping into broad censorship.
• Balancing Freedoms: It illustrates the judiciary’s role in balancing freedom of expression with the need to protect the rights of others and maintain democratic discourse.
• Future Compliance: Broadcasters are compelled to meticulously design their programming to meet impartiality standards, especially when dealing with controversial topics.

Complex Concepts Simplified

Due Impartiality

Due impartiality in broadcasting means presenting news and current affairs in a manner that does not favor one side over another. It requires an appropriate level of balance and fairness, considering the subject matter, type of programme, and audience expectations. This does not necessarily mean giving equal time to all viewpoints but ensuring that significant perspectives are adequately represented.

Contextual Factors

Contextual factors refer to elements surrounding a programme that influence its impartiality assessment. This includes the programme's editorial content, the channel's overall output, scheduling (what's broadcast before and after), audience size and composition, and how the content is presented. Understanding context helps determine whether a programme maintains due impartiality.

Dominant Media Narrative

The dominant media narrative is the prevailing perspective or interpretation of events as presented by the majority of mainstream media outlets. In this case, it pertains to the mainstream portrayal of events like the Skripal poisoning and US involvement in Syria, which RT’s programmes were countering or challenging.

Article 10 of the European Convention on Human Rights

Article 10 protects the right to freedom of expression, including the freedom to receive and impart information and ideas. However, this right is not absolute and can be subject to restrictions that are prescribed by law and necessary in a democratic society for objectives such as protecting the reputation or rights of others.

Conclusion

The RT v Ofcom [2021] EWCA Civ 1534 judgment reinforces the critical importance of due impartiality in broadcasting, particularly for programmes dealing with significant political and public policy matters. By affirming Ofcom's authority to enforce impartiality standards and upholding the necessity and proportionality of regulatory actions under Article 10, the court has solidified the framework within which broadcasters must operate. This decision ensures that the integrity of democratic discourse is maintained, compelling broadcasters to diligently present balanced and fair content, thereby protecting the rights of viewers and the broader democratic society.