Star China Media Limited, R v The Office of Communications

The Court of Appeal considered whether Ofcom lawfully imposed a £125,000 financial penalty on Star China for five breaches of the Broadcasting Code relating to the requirement of due impartiality, in light of article 10 of the European Convention on Human Rights. The court treated the penalty as an interference with article 10 rights but concluded it was "prescribed by law" and proportionate under article 10(2). Key statutory provisions and regulatory instruments considered were the due impartiality requirements in the Communications Act 2003 (notably sections 319 and 320), Ofcom's power to impose penalties under section 237, and Ofcom's Penalty Guidelines and Sanctions Procedures. The central legal question was whether the subsequent revocation of Star China’s licence made the originally proposed penalty disproportionate. The court upheld the decision below, accepting that Ofcom could lawfully impose the same penalty to achieve general deterrence to other broadcasters and that the regulator was entitled to an appropriate margin of appreciation in balancing article 10 rights against the public interest in due impartiality.

Background and parties: Star China Media Limited (the appellant) challenged Ofcom's imposition of a £125,000 penalty for five news programmes broadcast in 2019 on the China Global Television Network, which Ofcom found breached the Code's due impartiality requirements. Ofcom had earlier revoked Star China’s licence for separate reasons and nonetheless proceeded to impose the statutory penalty.

Nature of the claim / relief sought: The appellant sought to overturn the sanction on the ground that the penalty was a disproportionate interference with its article 10 rights and that Ofcom should have reduced or explained a reduction of the penalty in light of the licence revocation.

Procedural posture: This was an appeal to the Court of Appeal from a decision of Swift J in the Administrative Court ([2022] EWHC 3136 (Admin)) which had rejected Star China’s challenge.

Issues framed by the court: (i) Whether the imposition of the financial penalty constituted a justified and proportionate interference under article 10(2); (ii) whether the revocation of Star China’s licence after the Preliminary View but before the Sanction Decision required Ofcom to reduce or abrogate the proposed financial penalty; and (iii) the extent to which the court should defer to Ofcom’s assessment as specialist regulator.

Court’s reasoning: The court applied an exacting proportionality analysis drawing on Bank Mellat (the four-stage test) and precedent on broadcasting and impartiality (notably Animal Defenders and Novosti). It acknowledged the need for close and penetrating scrutiny when article 10 is engaged but also gave appropriate weight to Ofcom as a specialist regulator. The court held that (a) Ofcom had properly taken into account the statutory framework (including the Penalty Guidelines and Sanctions Procedures), (b) Ofcom was entitled to consider general deterrence to the broadcasting industry when setting the level of penalty, and (c) the revocation of the licence did not render the previously proposed penalty disproportionate because the same amount remained capable of achieving the legitimate objective of deterring other broadcasters. The court therefore concluded the penalty struck a fair balance between the appellant’s article 10 rights and the public interest in due impartiality and was within Ofcom’s margin of appreciation.

Wider comment: The court reiterated that while the justification standard is high in article 10 cases, deference is due to Ofcom's expertise and the regulator's assessments should only be displaced where they are "obviously wrong".

Appeal dismissed. The Court of Appeal held that Ofcom’s imposition of the £125,000 penalty was prescribed by law and proportionate under article 10(2). The court reasoned that Ofcom was entitled to consider general deterrence to other broadcasters when determining sanction and that the licence revocation did not render the financial penalty disproportionate. The decision below ([2022] EWHC 3136 (Admin)) was therefore affirmed.

This is an appeal to the Court of Appeal from the Administrative Court (King's Bench Division) where Swift J dismissed Star China’s challenge: R (on the application of Star China Media Limited) v Ofcom [2022] EWHC 3136 (Admin). The Court of Appeal determined the appeal in Star China Media Limited v The Office of Communications [2023] EWCA Civ 843.