Star China Media Limited, R v The Office of Communications

When reviewing a broadcasting penalty that restricts political expression, the court must conduct a close and penetrating examination of its factual justification. The required justification is exacting and the regulator’s margin of appreciation is correspondingly small. The court should nevertheless give weight to the specialist regulator’s assessment of broadcasting standards.

Revocation of the broadcaster’s licence does not necessarily require a financial penalty to be reduced because specific deterrence is no longer needed. A penalty may remain proportionate where its full amount is required for effective general deterrence, falls within the range of least intrusive measures and strikes a fair balance between freedom of expression and the community’s interest in duly impartial news.

Ofcom imposed a £125,000 penalty on Star China Media Limited for five serious breaches of the due impartiality requirements governing news broadcasts about protests in Hong Kong. Before the final sanction decision, Ofcom revoked Star China’s broadcasting licence for separate reasons. Ofcom nevertheless maintained the proposed penalty because enforcement against serious breaches needed to deter broadcasters generally.

Swift J dismissed Star China’s judicial review challenge in [2022] EWHC 3136 (Admin). Star China appealed, contending that the loss of its licence removed the need for specific deterrence and that a lower penalty, accompanied by an explanation of the penalty that would otherwise have been imposed, was a less intrusive means of achieving general deterrence.

The central issue was whether the unreduced penalty was a disproportionate interference with freedom of expression under article 10 of the European Convention on Human Rights.

1. Appeal dismissed. The £125,000 penalty was justified and proportionate to the legitimate aim of securing due impartiality in news broadcasting. It fell within article 10(2) of the European Convention on Human Rights and did not infringe article 10(1).

2. The court was required to undertake a close and penetrating examination of the factual justification for restricting freedom of expression. The importance of political expression required a high standard of justification and a correspondingly small margin of appreciation. That scrutiny was compatible with giving weight to Ofcom’s assessment as an experienced specialist regulator. In this context, the court should second-guess Ofcom’s expertise only where it had obviously gone wrong.

3. The four-stage proportionality analysis in Bank Mellat v HM Treasury (No 2) required consideration of the importance of the objective, rational connection, less intrusive means and fair balance. The fair-balance stage was as important in this case as the less-intrusive-means stage. The latter did not require the court to identify a single permissible penalty. Ofcom retained an appropriate, though confined, area of regulatory judgment.

4. The revocation of Star China’s licence did not make the unreduced penalty disproportionate. A penalty sufficient to deter both the licensee and the wider industry could also be necessary and proportionate for general deterrence alone. Other broadcasters would look to the penalty actually imposed when assessing the consequences of similar misconduct. Reducing the sum would have sent a less impactful signal and could have encouraged the belief that surrendering or losing a licence would avoid or reduce a penalty.

5. Ofcom had considered all the circumstances, including the seriousness of the infringements, Star China’s size and turnover, and the absence of any continuing risk of non-compliance by Star China. A statement describing a higher hypothetical penalty was not a proper substitute for an actual penalty capable of deterring the wider industry.

6. The penalty struck an acceptable balance between Star China’s rights and the community’s interests. It was within the range of least intrusive measures capable of achieving due impartiality. Simler LJ and Warby LJ agreed with the judgment of the Master of the Rolls.

1. Court of Appeal (Civil Division): The court dismissed Star China’s appeal in [2023] EWCA Civ 843 and upheld the conclusion that Ofcom’s £125,000 penalty was a proportionate restriction of article 10 rights.

2. High Court, Administrative Court: Swift J dismissed the judicial review claim in [2022] EWHC 3136 (Admin) . He held that the revocation of Star China’s broadcasting licence did not make the penalty disproportionate and that Ofcom was entitled to regard the full penalty as necessary for general deterrence.