Free Speech Union & Anor v Office of Communications (OFCOM)

At the permission stage of judicial review, a claim is properly arguable only where it has a realistic prospect of success. Ofcom may regulate broadcast material as harmful where, in its context, it has a sufficient nexus to risk of harm to the public, including public health harm. Material does not fall outside that concept merely because it questions public policy, undermines public-health advice or mainstream information, or reduces trust in public institutions. Guidance requiring care, challenge and context does not prohibit criticism or create a general censorship power. The statutory scheme must be read consistently with Article 10, but freedom of expression does not prevent proportionate regulation directed to potentially harmful communications. A claim based on a mischaracterisation of the guidance and an untenable construction of the statutory scheme is not properly arguable.

The claimants sought permission to bring judicial review proceedings challenging two Ofcom guidance notes issued in March 2020 concerning coronavirus-related broadcast content. They contended that the Communications Act 2003 did not permit Ofcom to regulate material merely because it questioned public policy, undermined public-health advice or mainstream information, or reduced trust in public institutions. They also relied on Article 10 of the European Convention on Human Rights. Permission had previously been refused on the papers by May J on 20 October 2020. The present hearing considered the arguability of the claim, an application for a costs-capping order, and the claimants’ challenge to the earlier costs order.

1. Permission refused. The claim was not properly arguable because it had no realistic prospect of success. The court reached the same conclusion as May J, but considered the matter afresh rather than exercising a review function.
2. The statutory scheme did not support the proposed narrow construction of “harmful”. Section 3(2)(e) of the Communications Act 2003 requires adequate protection from offensive and harmful material. Section 3(4)(g) requires regard to an appropriate level of freedom of expression. Section 319(2)(f) contains a corresponding standards objective. The references in section 319(2)(d) to accuracy in news and section 319(2)(h) to misleading advertising did not make accuracy, misleadingness and harmfulness wholly separate and non-overlapping concepts.
3. Section 368E had a distinct function concerning on-demand programme services and did not define “harmful” for the purposes of the broadcasting code. Section 329 likewise concerned proscription orders and unacceptable foreign services. Neither provision, nor Articles 3(2), 4a, 6 and 6a of EU Directive 2018/1808, supplied the proposed definition.
4. Ofcom’s guidance was concerned with coronavirus-related content and potential harm, not criticism as such. It allowed challenging views to be broadcast, subject to appropriate protection, including sufficiently strong challenge and context where comments might be inaccurate or harmful. The guidance therefore addressed communications having a contextual nexus to harm and remained within Ofcom’s vires.
5. The guidance was compatible with Article 10. Freedom of expression protected discussion and criticism of public authorities, but did not preclude proportionate regulation of potentially harmful health claims, medical advice or misleading coronavirus material.
6. The costs order was varied. The claimants were ordered to pay Ofcom’s costs of preparing the acknowledgement of service and summary grounds, with liberty to apply promptly for assessment if the costs were not agreed.

• High Court (Administrative Court): May J refused permission for judicial review on the papers on 20 October 2020 and ordered the claimants to pay Ofcom’s costs. At the present hearing, Mr Justice Fordham considered permission afresh, refused it, and varied the costs order.