the times | Monday January 3 2022 43
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When considering whether a tele-
vision current affairs programme had
breached the requirement of due
impartiality Ofcom was entitled to
take into account, as part of the
relevant context, other programmes
broadcast immediately before or
after the programme in issue but was
not required to give the same weight
to the content of those programmes
as it would to programmes which
formed part of a series linked with the
programme in issue.
The fact that there was a dominant
media narrative different from the
views expressed in the programme in
issue did not override the special
impartiality requirements which
applied to programmes dealing with
matters of political controversy and
current public policy.
The Court of Appeal so held in
dismissing the appeal of the claimant,
Autonomous Non-Profit Organisa-
tion TV-Novosti, broadcaster of the
television channel RT, against the
dismissal by the Queen’s Bench Divi-
sional Court (Dame Victoria Sharp,
President and Lord Justice Dinge-
mans) ([2020] 1 WLR 3130) of its
application for judicial review of the
decision of Ofcom that RT had
infringed the requirement of due
impartiality in section 320(1)(b) of the
Communications Act 2003 in seven
programmes and the imposition of a
penalty of £200,000 for the breaches.
Sam Grodzinski QC and Jason
Pobjoy for RT; Brian Kennelly QC,
David Glen and Jessica Boyd for
Ofcom.
The Master of the Rolls said that
the appeal raised two questions. The
first concerned the proper interpreta-
tion of the provisions of the Commu-
nications Act 2003 and the Ofcom
Broadcasting Code that required
television programme services to be
presented with due impartiality.
The second concerned the matters
that ought to be taken into account in
determining whether, when Ofcom
took action against a broadcaster in
respect of programmes that were
alleged not to be presented with due
impartiality, it had justified that action
as a necessary interference with the
broadcaster’s rights of freedom of ex-
pression under article 10 of the Euro-
pean Convention on Human Rights.
Article 10(2) of the convention
allowed such an interference with a
broadcaster’s right of freedom of ex-
pression if it was “prescribed by law”
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Factors to be taken into account when
considering whether a television programme
breached the requirement of impartiality
and, amongst other things: “necessa-
ry in a democratic society... for the
protection of the... rights of others.”
RT was licensed by Ofcom to
broadcast in the UK. It was incorpo-
rated in Russia and funded by the
Russian government. It aimed to
provide a non-mainstream, mostly
Russian, perspective on global news
and current affairs.
On December 20, 2018, Ofcom
determined that seven programmes
broadcast by RT had breached the re-
quirement of due impartiality. The six
programmes relevant to the appeal
concerned either the poisoning of
Sergei and Yulia Skripal in Salisbury
on March 18, 2018, or the role of the
United States government in Syria.
On the first issue one of Ofcom’s
standard objectives under section
319(2)(c) of the 2003 Act was to
secure that news included in tele-
vision services was presented with
due impartiality as required by
section 320(1)(b).
Even though there was nothing
about linked television programmes
in the 2003 Act, such a concept was
introduced in rule 5.6 of the code
which implied that editorially linked
programmes dealing with the same
subject matter, which were part of a
series, could be used by a broadcaster
to achieve due impartiality. The
question was whether Ofcom had
been precluded from considering
other non-linked RT programmes
(whether close in time, or not, to
those complained about) as a matter
of context.
First, it was to be noted that “con-
text”, as defined in section 2 of the
code, was introduced into section 5 of
the code by the definition of due
impartiality, which said expressly
that context was important in
relation to the approach to due
impartiality. In the present case,
Ofcom had placed some weight, as
part of the relevant context, on RT’s
programming “before or after” the
programmes, but placed less weight
on it than on other contextual factors.
Second, whilst section 320(1)(b) of
the Act imposed due impartiality on
“every television programme
service”, section 320(4)(a) made it
clear that that requirement could be
satisfied in relation to a series of
programmes taken as a whole. There
was no express legislative or code
requirement that Ofcom consider
other unlinked RT programming.
However, the matter did not end
there. Section 2 of the code provided
for context to include other
programmes scheduled before and
after the programme concerned. The
definition in section 2 was expressly
applied to the due impartiality
requirements.
In those circumstances it could not
be said that other content broadcastby RT was relevant to the assessment
of due impartiality only if it formed
part of a series of programmes which
were clearly linked. Those pro-
grammes shown before or after the
programmes in question were
undoubtedly relevant context as the
definitions of context in section 2 of
the code and of due impartiality in
section 5 of the code made clear.
It was not clear from the code
whether programmes “before or
after” the programmes needed actu-
ally to be adjacent to them in order to
be relevant context. It seemed that
they would at least need to be close in
time to the programmes themselves
for there to be any real likelihood that
any specific viewer would see them.
In considering other programming
on RT, programmes “before or after”
the programmes in issue would be
referred to as “adjacent” and other
programmes as “non-adjacent”.
The last question in the present
connection was whether unlinked
and non-adjacent content was rele-
vant context. It was not. The thrust of
the code was that due impartiality
had to be met by each programme or
by a linked series of programmes.
Whilst adjacent programming
could be relevant context, unlinked
non-adjacent programming was
unlikely to be of any relevance for a
number of reasons: (i) neither the
statutory regime nor the code
mentioned it, (ii) it would be a matter
of chance whether a viewer knew of
or viewed such other content, and (iii)
Ofcom was required by section
320(5) of the Act to provide rules in
relation to what constituted a series
of programmes, which indicated that
parliament thought such a series to
be the most relevant way that due
impartiality could be provided out-
side the programme itself.
That last point supported the point
made by Ofcom as to the lesser
weight to be attached to adjacent
programming as compared to a
linked series of programmes.
On the second issue, RT essential-
ly attacked Ofcom’s failure to pay
sufficient regard to the dominant me-
dia narrative on other platforms and
in the press, to the audience’s likely
expectation, and the suggested low
levels of likely harm to RT’s viewers.
Ofcom declined to have regard to
the dominant media narrative on the
basis that attempting to provide due
impartiality only by implicit means
would not be appropriate and would
not give due weight to the appropri-
ately wide range of significant views
required by rule 5.12 of the code
where special impartiality provisions
applied.
Keeping closely in mind the
question that the court had to answer
under article 10(2), namely whether
the enforcement action taken byOfcom against RT was necessary in a
democratic society in the interests of
the protection of the rights of others,
the first question was: who were the
“others” in question?
They were, obviously, members of
that democratic society in general
but also the viewers of RT in
particular. The precise number of
viewers was not clear, but it would
have been in the low thousands at
most. The main right of those viewers
that regulatory action might be
necessary to protect would be the
right to receive duly impartial news
programmes, particularly on subjects
of political controversy.
RT argued that its viewers knew
what everyone else thought and got
what they wanted and expected,
which was the Russian perspective.
However, the dominant media
narrative might be perceived differ-
ently by different people. A regular
viewer of RT might be expected to be
interested in a Russian government
perspective, even to support it. That
class of persons might consume news
and current affairs from other
sources differently from the average
UK citizen.
Thus, the dominant media narra-
tive, even on a subject like the Skripal
poisoning, could not be assumed to
be a constant to all the “others” whose
rights might be protected under arti-
cle 10(2). That factor would make it all
the more difficult for a broadcaster
accurately to identify the appropriate
dominant media narrative reaching
its body of viewers.
Further, the fact that there was a
dominant media narrative that was
different from the views expressed in
RT’s programmes did not, by itself,
override the special impartiality
requirements that applied to
programmes dealing with matters of
political controversy and current
public policy.
Finally, the programmes them-
selves were significantly partial.
Whilst reference was made to oppos-
ing views in the programmes, those
references were either sarcastic or
ridiculing. In those circumstances,
even if one made the assumption that
RT viewers might, in some or even
most cases, be aware of the contrary
views expressed in mainstream
media, that was not sufficient to
outweigh the requirement for due
impartiality in programming on
matters of political controversy.
The regulatory action taken by
Ofcom had, therefore, been appro-
priate and proportionate.
Lord Justice Baker and Lord
Justice Warby agreed.
Solicitors: Reed Smith LLP;
Ofcom Legal Department.Court of Appeal
Published January 3, 2022
Regina (Autonomous Non-Profit
Organisation TV-Novosti) v Office
of Communications
Before Sir Geoffrey Vos, Master of
the Rolls, Lord Justice Baker and Lord
Justice Warby
[2021] EWCA Civ 1534
Judgment October 26, 2021
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