R (on the application of) v The Office of Communications  EWCA Civ 692 (17 June 2011)
This case concerns an appeal against the Divisional Court’s finding that a radio presenter’s right to freedom of expression was not infringed by an adverse ruling of the Broadcasting Code’s statutory regulator (Ofcom). The appellant challenged Ofcom’s finding on the ground that it fell foul of article 10 of the European Convention on Human Rights. Article 10 encompasses the freedom to receive and impart information and ideas without interference, subject to restrictions as prescribed by law and necessary in a democratic society for the protection of the rights of others. The England and Wales Court of Appeal (Civil Division) (EWCA) unanimously dismissed the appeal.
The interview in question was broadcast live on the Talksport radio channel and was on the topic of the local council’s proposal to ban smokers from becoming foster parents. The interviewee was a local politician. The appellant was known to be a robust interviewer who had strong feelings on the issue, having been raised in foster care himself. Following a controlled start, the interview quickly degenerated into a ‘slanging match’ with the appellant calling the interviewee offensive names, including ‘Nazi’, ‘ignorant pig’, ‘health fascist’ and ‘ignorant idiot’.
After the interview both the appellant and the broadcaster issued apologies to their audience.
Ofcom received 53 complaints about the interview from listeners. In due course it issued a finding that the broadcasting of the interview caused significant and unnecessary offence to listeners. As a result, it determined that Talksport had breached rule 2.3 of the Broadcasting Code, which states that broadcasters must ensure that material which may cause offense is justified by the context. Even taking into account the programme’s context, audience expectations and editorial content, Ofcom decided that there was no justification for the offensive broadcast.
Ofcom’s finding was made against the broadcaster (who readily accepted that the interview had breached the Broadcasting Code) and was not accompanied by any sanction other than publication of the finding. The appellant, however, had ‘locus standi’ to apply to the Divisional Court to have the finding quashed. The Court dismissed the application, holding that the broadcast was gratuitously abusive and entirely without factual content or justification.
The EWCA concluded that Ofcom’s finding was correct and its decision to publish its finding was not a disproportionate interference with the appellant’s Article 10 rights.
In his judgment Lord Neuberger MR reiterated the importance of freedom of expression as “the lifeblood of democracy” and cited with approval Sedley LJ’s comment that “[f]reedom only to speak inoffensively is not worth having”. Drawing on the Strasbourg jurisprudence, his Lordship identified the following accepted principles:
- the need for any particular restriction on freedom of expression “must be established convincingly”;
- the relevant question to consider is whether the interference with one’s right to freedom of expression is “proportionate to the legitimate aim pursued”;
- particular regard must be given “to the words used…, the context in which they were made public and the case as a whole”;
- a distinction must be drawn between “harsh words” which constitute “a gratuitous personal attack” and those forming “part of a political debate”;
- someone using insulting words in the context of “an open discussion of matters of public concern” may be given greater latitude;
- the severity of the sanction imposed may be relevant; and
- the inability to retract, perfect or reformulate a statement before publication is relevant.
In determining whether the interview offended the Broadcasting Code, the EWCA agreed with Ofcom and the Divisional Court that the interview must be considered “as a whole and in its context”. In support of the appellant’s case, the Court noted that the interview concerned an issue of general public interest, it was a live broadcast, the interviewer was known to be a hard-hitting interviewer and the interviewee was a politician who made no subsequent complaint.
However, taking into the account the aggressive tone of the interview, the frequent interruptions, the insults, the raving, the absence of any substantive content and the length for which the interview was allowed to run, the EWCA found that Ofcom’s published finding did not represent an interference with the interviewer’s right to freedom of expression. As Lord Neuberger MR observed: “[h]eated exchanges, impertinent questions and opinionated tone in other interviews are one thing, the combination in this interview of bullying manner, interruption, ranting and insults is quite another”.
Relevance to the Victorian Charter
Section 15 of the Victorian Charter protects freedom of expression, including the right to hold an opinion without interference and the right to seek, receive and impart information freely. Relevantly, section 15(3) provides that special responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary: (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.
Radio and television is an area where a degree of control is expected, and recognised broadcasting standards should be interpreted in accordance with section 15. Drawing on this comparative UK jurisprudence, any regulatory obligations to avoid offensive material may be interpreted as being limited to material that is gratuitously shocking or offensive.
The decision is available at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/692.html
Isabel Waters is a Law Graduate with the Human Rights Law Group at Mallesons Stephen Jaques.