Free Speech Union & Anor v Office of Communications (OFCOM)

Factual and Procedural Background

This opinion concerns an application for permission for judicial review, initially refused on the papers by Judge May on 20 October 2020, who also ordered the Claimants to pay the Defendant's costs. The Claimants subsequently sought a costs capping order if permission were granted and challenged the costs order if permission were refused. The hearing was conducted remotely via Microsoft Teams, with agreement from counsel that this did not prejudice the parties and preserved open justice. The judicial review claim challenges two Guidance Notes issued by the Defendant in March 2020, relating to broadcast content in the context of the Covid-19 pandemic. The Claimants seek declarations at a substantive hearing to impugn these Guidance Notes.

Legal Issues Presented

1. Whether the Defendant's Guidance Notes, which regulate broadcast material that may question public policy, undermine advice of public health bodies or mainstream sources of information, or reduce trust in government or public institutions, exceed the Defendant's statutory powers under the Communications Act 2003.
2. Whether the interpretation of "harmful" material under the 2003 Act should be narrowly construed to exclude broadcast content whose "only fault" is to question or undermine official narratives.
3. Whether the Defendant's actions comply with the protections for freedom of expression guaranteed by Article 10 of the European Convention on Human Rights as incorporated by the Human Rights Act 1998.
4. The appropriate application of the threshold for permission for judicial review, specifically whether the claim is properly arguable with a realistic prospect of success.

Arguments of the Parties

Appellant's Arguments

• The Claimants argue that broadcast material which merely questions public policy, undermines public health advice or mainstream information, or reduces trust in public institutions cannot be lawfully regarded as "harmful" under the 2003 Act and so cannot be regulated by the Defendant.
• They submit that the Defendant's interpretation of "harmful" is unbounded and includes speculative harm, exceeding statutory powers.
• The Claimants rely on a narrow interpretation of the statutory provisions, emphasizing the distinct and non-interchangeable nature of concepts such as "accuracy," "misleading," and "harmful" in the legislation.
• They invoke Article 10 rights to freedom of expression, arguing that the Defendant's Guidance Notes have chilling effects on broadcasters and improperly restrict speech that challenges official narratives.
• The Claimants contend that regulation of broadcast content should primarily be a matter of broadcaster autonomy rather than statutory regulation by the Defendant.
• They refer to various statutory provisions and international directives to support their narrow reading of "harmful," including sections 3(2)(e), 319, 368E, and 329 of the 2003 Act, as well as EU Directive 2018/1808.

Appellee's Arguments

• The Defendant submits that the Guidance Notes properly focus on broadcast content in the context of the Covid-19 pandemic that could cause harm, such as misleading or inaccurate information about the virus, harmful health claims, or advice that discourages compliance with official guidance.
• The Defendant emphasizes that the Guidance Notes do not prohibit criticism or questioning of public policy or advice but require broadcasters to exercise care and provide adequate protection to audiences by challenging or contextualizing potentially harmful content.
• The Defendant argues that the concept of "harmful" material is appropriately broad and includes content with a sufficient nexus to public harm, particularly in a public health emergency.
• The Defendant maintains that its regulatory approach is compatible with Article 10 rights, balancing freedom of expression with the need to protect public health and safety.
• It highlights examples of adjudications under the Guidance Notes illustrating that broadcasters are free to hold public authorities to account but must ensure compliance with broadcasting standards.
• The Defendant asserts that the Guidance Notes promote clarity and proportionality in regulation and are consistent with international human rights standards, including guidance from the UN Special Rapporteur on freedom of expression during pandemics.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court analysed the statutory framework governing the Defendant's regulatory powers under the Communications Act 2003, including the definitions of "harmful" and "offensive" material, and the requirements to secure adequate protection for the public. It considered the Claimants' narrow interpretation of "harmful" material and rejected the argument that the Defendant's regulatory scope is unlimited or speculative. The Court found that the Guidance Notes are contextually focused on broadcast content related to Covid-19, where there is a nexus to potential harm, such as health risks or public safety concerns.

The Court acknowledged the importance of freedom of expression under Article 10 but concluded that the Defendant's approach appropriately balances this right with public protection. It noted that the Guidance Notes do not prohibit challenging official narratives but require broadcasters to exercise care and provide adequate protections through challenge and context.

The Court rejected the Claimants' reliance on other statutory provisions and international directives as aids to narrowly construe "harmful," finding these arguments untenable and inconsistent with the legislative scheme and practical examples.

Further, the Court found that the Guidance Notes promote clarity and proportionality, addressing concerns about vagueness in regulation. The Court also endorsed the relevance of the UN Special Rapporteur's report, which supports proportionate measures to combat misinformation during pandemics.

Ultimately, the Court determined that the Claimants' challenge is based on a misinterpretation and mischaracterisation of the Defendant's Guidance Notes and that there is no realistic prospect of success on judicial review.

Holding and Implications

The Court REFUSED PERMISSION for judicial review of the Defendant's Guidance Notes.

The direct effect of this decision is that the Defendant's Guidance Notes issued in March 2020 remain valid and enforceable, and the Claimants' challenge to them will not proceed to a substantive hearing. The Court did not establish new precedent but affirmed the existing statutory framework and the Defendant's regulatory discretion in the context of public health emergencies. The Claimants were ordered to pay the Defendant's costs related to the Acknowledgement of Service and Summary Grounds of Resistance, with liberty to apply for assessment if not agreed.