Mark Steyn, R (on the application of) v Office of Communications

Freedom of expression protects robust, polemical and unpopular broadcasting, but it does not create a right to mislead audiences. Under the Ofcom Broadcasting Code, statistical analysis and definitive claims about causation may constitute portrayals of factual matters even when expressed within an opinion-driven programme. A regulator may find material misleadingness where raw health data are presented through an unjustified comparison and without material caveats. Actual harm need not have occurred: potential harm to informed health decisions is sufficient. In assessing proportionality, the court makes its own assessment but gives considerable weight to the specialist regulator operating within a statutory scheme that already incorporates proportionality. Health claims presented with authority may require adequate challenge or contextualisation, especially where they concern serious illness, vulnerable viewers and high-certainty claims.

The claimant sought judicial review of two Ofcom decisions concerning The Mark Steyn Show on GB News. The first decision found that a monologue about Covid-19 vaccination statistics materially misled viewers, contrary to Rule 2.2 of the Ofcom Broadcasting Code. The second found that an interview with Naomi Wolf included potentially harmful material without adequate audience protection, contrary to Rule 2.1.

The claimant argued that the broadcasts expressed opinion rather than fact, that Ofcom had not established actual or potential harm, and that the decisions unjustifiably interfered with freedom of expression under article 10 of the European Convention on Human Rights. Both claims were heard together.

1. Both claims dismissed. Ofcom imposed no sanction, but its findings that the Code had been breached were lawful.
2. Parliament had struck a proportionality balance in the statutory scheme governing licensed broadcasting. The court had to assess proportionality for itself, but considerable weight was due to Ofcom as the specialist constitutional decision-maker. Intervention was warranted only if Ofcom had obviously gone wrong: [2021] EWCA Civ 1543.
3. Rule 2.2 was not confined by importing the fact-opinion principles developed in defamation law. In context, the direct comparison of vaccinated and unvaccinated groups, assertions that vaccination caused increased infection, hospitalisation and death, and the claim that only one conclusion could be drawn from the data were portrayals of factual matters.
4. Ofcom was entitled to find that the presentation was materially misleading because it ignored the UKHSA caveat on effectiveness and contextual statement concerning inherent differences between the groups. Ofcom did not need to decide whether the vaccines were in fact safe or effective. Potential harm, including impairment of properly informed health choices or alarm among vaccinated viewers, was sufficient.
5. In relation to Rule 2.1, Ofcom was entitled to regard claims that vaccination involved premeditated mass murder and sterilisation as serious, alarming and potentially harmful health claims. The absence of scientific scrutiny, opposing views or contextualisation, together with the presenter’s apparent endorsement and the guest’s presentation as authoritative, justified the conclusion that adequate audience protection had not been provided.
6. The decisions gave adequate reasons and struck a proportionate balance under article 10. Journalistic freedom protects provocation and exaggeration, but does not protect misleading statistical presentations or unchallenged health claims capable of affecting important medical decisions.

First-instance judicial review claims heard together in the Administrative Court. Both claims were dismissed.