Gaunt v. Ofcom [2010] EWHC 1756 (QB)

The decision in Gaunt’s judicial review of Ofcom’s decision to find an infringement of the Broadcasting Code in respect of one of Gaunt’s programmes was handed down on 13th July 2010. The Court found in favour of Ofcom.

The facts relating to the case can be summarised as follows. Gaunt was a presenter on a Talksport radio who was well known for having a confrontational if not aggressive style in his interviews. The complaint concern his interview of a local politician who had authored the policy that people who smoked should in future not be allowed to be foster carers. Gaunt in the course of his interview called the interviewee repeatedly a Nazi, as well as calling him a health Nazi and an ignorant pig. According to the Ofcom investigation, the interview degenerated into a slanging match. Talksport claimed that Gaunt had been given instructions to moderate his approach during the programme; he apologised to the audience shortly after the programme but was suspended from work and his contract was subsequently terminated. Ofcom received complaints and found a violation of the Broadcasting Code as against Talksport; the company’s procedures were not robust enough to deal with the live broadcast of this sort of interview; according to Ofcom the broadcaster should retain control so as to ensure that no violation of the code occurred. Having said this, the finding was the total of the penalty; no fine was imposed.

Gaunt brought an action based on his right to freedom of expression. Although he was not the person Ofcom censured, his standing was not questioned. Those arguing his case were at pains to make the point that it was the decision in this particular case that was being challenged, not the Communications Act 2003, or the Broadcasting Code. The Court reiterated that in a case such as this, the question to be addressed is not whether Ofcom’s decision was reasonable but whether Gaunt’s rights have been infringed. The argument put forward (and supported by Liberty as interveners) was that political speech is particularly protected by Article 10 ECHR, even if it is strident or abusive. Ofcom argued that the statutory framework and code were applied in a proposer manner and that freedom of expression does not given individuals the right to bully and to insult, that there is a distinction between a value judgment and a gratuitous personal attack.

The Court accepted Ofcom’s arguments and rejected Gaunt’s claim, focussing on the question of whether Ofom’s finding fulfilled a pressing social need and constituted a proportionate interference with the claimant’s freedom of expression.The Court noted that this was political speech and that the interviewee was a politician who could expect to ‘receive and tolerate a rough ride’; indeed the complaints originate from the audience not the interviewee. Further, the statements were expressions of opinion, not facts. Taking this together the Court agreed that Gaunt’s epxression attracted a high degree of protection but then held ‘His freedom of expression may not however extend to gratuitous offensive insult or abuse, nor, we think, to repeated abusive shouting which serves to express no real content.’ (para 47) The Court then analysed the use of insulting language, taking account of the repetition and tone. The Court had previously noted Ofcom’s finding that the concern was not the initial use of the word Nazi but more the fact that the itnerview gave little chance for the guest to express his opinion and that to the extent that the guest was able to air those views, these were dismissed and that the interview degenerated into personal insults and bullying. The Court then concluded, ‘In the result, we accept Mr Anderson’s submission that the Amended Finding constituted no material interference with the claimant’s freedom of expression at all. An inhibition from broadcasting shouted abuse which expresses no content does not inhibit, and should not deter, heated and even offensive dialogue which retains a degree of relevant content.’ (para 50)

This case is worthy of note for several reasons.

  • it is Gaunt bring the action, not Talksport. His standing to do so is not really questioned or considered although he did in fact express himself and was not censured by Ofcom for doing so. There are questions here about the relationship between the journalist and employer, the company with the broadcasting licence and the body subject to the regulatory regime (which was not challenged). Is the concern the risk that broadcasters might censure their employees to avoid risk of penalty? What then does this say about the rights of presenters in terms of access to airtime? Are they, in fact, a privileged class who have the right of access to airtime to say whatever they like; the population in general does not have a right of access. The relationship between the various people involved in the professional media is complex in this regard.
  • It is also interesting to note that the Court did not really address the question of whether the question of whether the broadcast media’s special responsibilities (due to reach and impact of programming as well as audience expectations) justify greater restrictions on speech. It is interesting to note that Ofcom will normally take into account audience expectations in assessing whether there has been a violation of the Broadcasting Code, as can be seen for example in the Dancing on Ice determination.
  • The boundary between political comment and abuse or insult is sometimes fine and has repeatedly caused problems for the courts in trying to find an appropriate boundary. Cases such as Oberschlick and Cumpana are sometimes cited as the proposition that abuse is protected speech. It strikes me that the Court and Ofcom in this case probably got it right. There is a difference between perhaps insulting terms in the context of political satire (as in the cartoon in Cumpana) and the repeated use of terms as a form of aggression, with no particular point to make. Some comentators have expressed concern about ‘tone’ being a criterion to determine the scope of a fundamental human right. Certainly, this is capable of being interpreted to fit many circumstances. In this case, however, Ofcom certainly tried to identify which aspects were being found objectionable. In general terms, Ofcom has stated that mere abuse will not automatically constitute a violation of the Broadcasting Code, as can be seen in the Dancing on Ice determination.
  • Perhaps the final point of concern here is the reasoning the Court. Having accepted that Gaunt’s expression deserved a high level of protection as political speech, the Court concluded that there had been no material interference with his rights. Surely by this stage, what we should be seeing is the statement that the interference is justified? In any event, the reasoning here is not as detailed as could be hoped for. For comment to similar effect, see here.
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