Gaunt, R (on the application of) v The Office of Communications

Restrictions on broadcast speech must be interpreted and applied compatibly with Article 10. Offensive language is not automatically impermissible: justification depends on the programme as a whole, its context, content, audience expectations and competing rights.

A live interview may breach broadcasting standards where insults, bullying manner, persistent interruption and loss of substantive discussion make the material gratuitously offensive. The regulator’s specialist assessment merits due regard, although proportionality is ultimately for the court. Publication of a reasoned adverse finding, without a financial penalty or other sanction, was proportionate.

Jon Gaunt appealed against the Divisional Court’s dismissal of his application to quash an Ofcom finding. Ofcom concluded that an interview broadcast on Talksport breached rules 2.1 and 2.3 of the Broadcasting Code because its aggressive, insulting and bullying treatment of a local authority councillor was not justified by the context.

The challenge relied on Article 10 of the Convention. The Divisional Court held that the later part of the interview was gratuitously abusive, contained no real content and did not materially interfere with freedom of expression. It also noted that no sanction had been imposed beyond publication of the finding. The issues were whether the finding was a disproportionate interference with Article 10 and whether Ofcom’s response was proportionate.

1. Appeal dismissed. Publication of Ofcom’s finding did not unlawfully or disproportionately interfere with Mr Gaunt’s Article 10 rights.
2. The court had to decide for itself whether the finding disproportionately interfered with freedom of expression, while having due regard to Ofcom’s judgment as the statutory regulator. The Broadcasting Code had to be interpreted and applied consistently with Article 10. The requirement that offensive material be justified by context recognised that offensive speech will often be permissible.
3. The interview concerned a matter of public interest and was live. Mr Gaunt was a known hard-hitting interviewer and the interviewee was a politician. Those matters were relevant but did not confer immunity from the Code. The interview had to be assessed as a whole and in context, rather than by focusing on any individual insult, tone or interruption.
4. The decisive combination was the extremely aggressive tone, persistent interruptions, insults, ranting, failure to allow the interviewee to develop or answer arguments, and the decision to let the interview continue after it had plainly become uncontrolled. The interview conveyed little substantive content and became an exercise in insulting and berating the interviewee. Ofcom was therefore entitled to find breaches of rules 2.1 and 2.3.
5. Apologies were relevant to mitigation but did not amount to admissions of breach. The absence of a complaint by the interviewee was of limited weight because the finding concerned offence to the audience.
6. The sanction was proportionate. Ofcom had rational grounds for publishing an adverse finding rather than merely recording the matter as resolved, including the broadcaster’s decision to continue the interview and previous findings concerning loss of control. Publication of the careful and balanced finding, without a fine or other sanction, was not disproportionate.

• Court of Appeal (Civil Division) — Appeal dismissed. The court upheld Ofcom’s finding and the Divisional Court’s dismissal of the application.
• Divisional Court, Queen’s Bench Division — Application dismissed: [2010] EWHC 1756 (QB).