Star China Media Limited, R (on the application of) v The Office of Communications

When reviewing a financial penalty imposed by a broadcasting regulator, the court must closely scrutinise any interference with Article 10 rights, but must not substitute its own assessment for that of the regulator. The margin of judgment is narrow, yet proportionality does not require a single permissible outcome.

General deterrence may justify imposing on a former licence-holder the penalty that would have been appropriate had broadcasting continued. The regulator may assess the penalty by reference to the seriousness of the breaches, the regulated body’s size and turnover, and the treatment required to deter other broadcasters. Termination of the licence preserves liability for a penalty but does not itself require the regulator to maintain, reduce or cancel a proposed penalty.

OFCOM found that Star China Media Limited had breached the Broadcasting Code’s due-impartiality requirements through CGTN news coverage of the 2019 Hong Kong protests. It imposed a financial penalty of £125,000 under the Communications Act 2003.

Before the penalty decision, OFCOM had separately revoked Star China’s licence because Star China did not exercise control over the programmes broadcast. Star China argued that revocation removed any need for specific deterrence and made the penalty disproportionate, having regard also to the seriousness of the breaches, its compliance record and the audience. The central issue was whether OFCOM lawfully and proportionately maintained the proposed penalty after the licence had been revoked.

1. The claim was dismissed. The £125,000 penalty was a justified interference with Star China’s Article 10 rights.
2. Article 10 required close scrutiny of OFCOM’s reasons. The court’s task was not a Wednesbury review, but nor could it substitute its own view. The court had to recognise OFCOM’s statutory responsibility under sections 319 and 320 of the Communications Act 2003 to secure due impartiality in broadcast news. The margin of judgment was narrow, but proportionality did not permit only one answer.
3. OFCOM was entitled to treat the repeated breaches, their subject matter, the potential societal harm from one-sided news coverage, and Star China’s previous breach concerning the same subject matter as serious matters. Actual harm to particular viewers was not required where there was potential for harm.
4. The revocation of the licence removed the need for specific deterrence against Star China, but it did not remove the need for general deterrence. OFCOM was entitled to conclude that the penalty appropriate if CGTN had continued broadcasting would provide an appropriate signal to other broadcasters. That conclusion was consistent with the Penalty Guidelines and was not obviously wrong.
5. The proportionality analysis included both whether a less intrusive measure could achieve the objective and whether a fair balance had been struck. The penalty was not outside the least-restrictive-means requirement and was not disproportionate either in amount or in being imposed on Star China.
6. Section 346(3) of the Communications Act 2003 preserved OFCOM’s power to impose and enforce a penalty after licence termination. It created no free-standing obligation requiring OFCOM to maintain the preliminary penalty and did not itself engage section 6(2)(a) of the Human Rights Act 1998.

Not stated in the judgment.