Autonomous Non-Profit Organisation TV-Novosti, R (On the Application Of) v The Office of Communications

The statutory requirement of due impartiality is assessed by reference to the relevant broadcast and, where permitted, clearly linked and timely programmes from the same broadcaster. It does not require Ofcom to consider a supposed dominant media narrative or unrelated programmes by other broadcasters. The requirement is compatible with article 10 because it pursues the important aim of ensuring that viewers receive competing viewpoints and allows editorial freedom as to how balance is achieved. A broadcaster’s repeated breaches may aggravate harm and justify a deterrent penalty. Ofcom may consider the regulated body’s wider financial support when assessing an appropriate penalty, provided the statutory maximum is respected.

RT, a Russian-funded broadcaster licensed in the United Kingdom, challenged Ofcom decisions finding that seven programmes breached the due-impartiality requirements in the Communications Act 2003 and the Ofcom Broadcasting Code. RT argued that Ofcom should consider the dominant media narrative, other RT programmes, and article 10 of the Convention. It separately challenged the finding concerning a programme about Ukraine and the proportionality of a £200,000 penalty. The central issues were the proper interpretation of due impartiality, its compatibility with article 10, and the lawfulness of Ofcom’s sanction.

1. Statutory interpretation. The due-impartiality obligation is imposed on the person providing the service. The Communications Act 2003 does not require Ofcom to consider broadcasts by other providers or a supposed dominant media narrative. Other programmes by the same broadcaster may be relevant only where they form part of a series of programmes and are clearly linked and timely under the Code. RT’s unrelated programmes therefore could not be relied upon to satisfy the obligation (paras [33]-[38]).
2. Article 10. The regime pursues the legitimate aim of ensuring that viewers receive competing viewpoints and can participate in democratic processes on an informed basis. Applying the proportionality principles identified in R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, the restrictions were sufficiently important, rationally connected to that aim, no more than necessary, and proportionate. The rules apply only to broadcast media and defined categories of content, do not prohibit particular views, leave the means of achieving balance to editorial judgment, and avoid the uncertainty that would result from requiring broadcasters to assess changing external media narratives (paras [41]-[43], [64]-[73]).
3. The fact that Ofcom could not determine the accuracy of claims about the Salisbury poisoning or Syria strengthened, rather than weakened, the importance of exposing viewers to competing views. The reasoning of Animal Defenders International [2008] UKHL 15 was materially relevant to the importance of balanced broadcasting and democratic debate (paras [44]-[63], [68]).
4. Ukraine programme. The programme did not present the Ukrainian Government’s response to allegations that it failed to protect Roma people or glorified Nazism. Ofcom was entitled to find a breach of due impartiality (paras [74]-[78]).
5. Sanction. Permission to challenge the proportionality of the sanction was granted, but the challenge failed. Ofcom was entitled to disregard the dominant media narrative and unrelated RT broadcasts when assessing harm. Seven breaches within six weeks were a relevant aggravating circumstance, even though Ofcom corrected its use of the word systemic. Ofcom properly considered RT’s compliance history, the deterrent purpose of penalties, its wider Russian state funding, and the limited comparability of earlier sanctions. The £200,000 penalty was proportionate (paras [92]-[98]).
6. The judicial review claim challenging the breach and sanction decisions was dismissed (paras [99]-[100]).

First-instance judicial review proceedings in the Divisional Court of the High Court. Permission to challenge the sanction decision had previously been granted by Lewis J on 13 June 2019. The claim was dismissed.