Traveller Movement v Ofcom & Anor

Ofcom’s Standards complaints procedure was fair and rational even though the broadcaster, but not the complainant, received the preliminary view and could comment on it. Standards complaints determine objectively whether programme content breached the Broadcasting Code; they do not adjudicate an individual complainant’s rights or grievance. Fairness complaints are materially different because they concern a person directly affected by alleged unfair treatment. A representative body does not acquire a right to participate as a party in a Standards investigation merely because it represents affected communities. Ofcom’s power to seek further information does not impose a general duty to investigate afresh whenever the complainant’s evidence is insufficient. A specialist regulator’s assessment of harm, context and freedom of expression will be unlawful for irrationality only in a clear case.

The claimant challenged Ofcom’s rejection of its Standards complaint about Channel 4 programmes concerning Traveller, Gypsy and Romany communities. The complaint alleged harmful, offensive and stereotypical portrayals, including harm to children. Ofcom dealt with the Standards and Fairness aspects under separate procedures. The Fairness procedure allowed the complainant to comment on the preliminary view, whereas the Standards procedure generally allowed that opportunity only to the broadcaster and relevant third parties.

The claimant alleged procedural unfairness, irrational failure to obtain further information, irrational refusal to obtain assistance from the Equality and Human Rights Commission, and irrational assessment of the evidence of harm.

1. Disposition. The claim was dismissed.
2. The requirements of fairness depend on the character of the decision-maker, the decision to be made and the statutory and procedural framework. There is no general entitlement to see or comment on a preliminary view. The fact that one participant is given that opportunity requires justification, but does not itself make the process unfair.
3. The distinction between the two Ofcom procedures was rational. A Fairness complaint concerns the grievance of a person directly affected by alleged unfair treatment. A Standards complaint asks the objective question whether programme content breached standards protecting the public as a class. The complainant initiates the process but is not ordinarily a party to an adversarial adjudication. A representative body has no different procedural entitlement merely because it represents people who might otherwise have complained individually.
4. The published procedure was properly applied. Ofcom was entitled to adhere to it, subject to its power to depart where necessary for fairness or proper consideration of the complaint. That power did not require a departure here. The broadcaster made no representations on the preliminary view, and the claimant had already been able to submit the material on which it relied.
5. The power to seek further information was discretionary. It did not require Ofcom to conduct further investigations whenever a complainant’s evidence did not establish a breach. The burden was not transferred to Ofcom or the broadcaster to disprove the allegation.
6. Ofcom was entitled to decline the Equality and Human Rights Commission’s offer of assistance. Its assessment of the expert evidence, causation, the extent of harm, programme context and the Article 10 rights of broadcaster and audience was rational. The application was nowhere near the clear case required to interfere with the specialist regulator’s judgment.

First-instance judicial review in the Administrative Court. No appellate history was stated in the judgment.