Office of Communications v Star China Media Limited

A regulator may impose a financial penalty for serious broadcasting-code breaches to achieve wider deterrence, even where the licensee’s licence has been revoked and specific deterrence is no longer possible. Standards, fairness and privacy breaches are governed by companion statutory provisions and the same penalty power. Article 10 requires close and penetrating proportionality review, but the court must give appropriate weight to the specialist regulator’s assessment. Repeated serious breaches may justify separate penalties, particularly where they concern different complainants and programmes. A public-law challenge may ordinarily be raised defensively in civil debt proceedings unless the statutory scheme excludes that course by necessary implication.

Ofcom sought recovery of £300,000 in statutory debts arising from three financial penalties imposed on Star China for serious and repeated breaches of the fairness and privacy provisions of the Broadcasting Code. Star China had previously held a broadcasting licence, but that licence was revoked before the penalties were imposed.

Star China defended the claim by challenging the penalties on public-law and Article 10 grounds. It argued that wider deterrence could not justify substantial penalties in fairness and privacy cases, that the penalties should have been reduced after revocation, and that separate penalties were irrational and disproportionate. It also argued that the defence was not an abuse of process merely because judicial review proceedings had not been brought.

1. The claim succeeded. Ofcom was entitled to recover £300,000 as a statutory debt.
2. The procedural exclusivity principle did not prevent Star China from raising ultra vires and public-law arguments defensively. The general rule from Wandsworth LBC v Winder and Boddington v British Transport Police remained applicable. The statutory scheme considered in Beadle v Revenue and Customs Commissioners was materially different and did not exclude a defensive challenge by necessary implication.
3. The standards code and fairness code were companion provisions. Sections 325 and 326 of the Communications Act 2003, together with s. 237, did not establish a fundamental distinction between standards breaches and fairness or privacy breaches. Differences in drafting, guidance and fact-sensitivity were matters of degree, style and emphasis.
4. The penalties interfered with Article 10 rights, but the relevant question was whether the interference was justified and proportionate in the individual circumstances. The court undertook close and penetrating review while recognising Ofcom’s specialist expertise and the weight which should be given to its assessment.
5. Revocation did not require automatic reduction of the penalties. Wider deterrence could justify a penalty assessed by reference to the penalty that would have been appropriate had the licence continued. Serious and repeated breaches could properly attract separate penalties, especially where they concerned different complainants, unconnected programmes and repeated conduct.
6. The Broadcasting Code was sufficiently clear and foreseeable to satisfy the requirement that an interference be prescribed by law. The sanctions decisions gave convincing justification for the penalties. The asserted chilling effect did not make them disproportionate, since serious breaches properly warranted deterrence.

First-instance claim in the High Court seeking recovery of statutory debts. The judgment also considered the earlier judicial review proceedings concerning a separate impartiality sanction: Swift J dismissed that challenge in [2022] EWHC 3136 (Admin), and the Court of Appeal affirmed in [2023] EWCA Civ 843; [2024] 1 WLR 248. Those decisions were treated as highly persuasive but concerned separate litigation.