David John Keighley, R (on the application of) v The Office of Communications

Under Ofcom’s Broadcasting Code, due impartiality is ordinarily assessed by reference to an individual programme viewed in context. For the Preservation Requirement, the defined alternative is an editorially linked series, or, for major prescribed matters, clearly linked and timely programmes. The Code does not require an additional, undefined assessment across all programming on a service. A broadcaster cannot use service-wide patterns or cumulative effects either to establish or to cure a failure measured at the permitted programme or series level. Ofcom retains latitude in deciding whether complaints warrant investigation under its Filtering Test, subject to public law reasonableness.

The claimant sought judicial review of Ofcom’s refusal to investigate complaints alleging a systematic lack of due impartiality in BBC coverage of Brexit across many programmes and services. Ofcom concluded that the Broadcasting Code addressed due impartiality at the level of an individual broadcast or an editorially linked series, and alternatively concluded that the complaints failed its Filtering Test.

The claimant argued that the Communications Act 2003 and the Code required a service-wide assessment, and that Ofcom’s alternative reasoning was irrational. The issues were whether the complaints fell within Ofcom’s enforcement jurisdiction and, if so, whether the decision was unreasonable.

1. Claim dismissed. The claimant was ordered to pay Ofcom’s costs on the standard basis and a second costs order was made in favour of the BBC. Permission to appeal was refused.
2. The statutory scheme identifies Ofcom as the rule-maker. Sections 319 and 320 of the Communications Act 2003 required Ofcom to formulate standards and rules securing due impartiality, but did not mandate a service-wide measurement. The reference to a service provider and to services did not override the statutory focus on programme-content standards or require a “both/and” model.
3. Section 320(4)(a) required the Code to permit compliance with the Preservation Requirement through a relevant series of programmes taken as a whole. It did not impose an additional global measure. The Explanatory Notes did not resolve any ambiguity and could not enlarge the statutory provision.
4. Read as a whole, the Code made the individual programme, viewed in context, the starting point. Rule 5.5 permitted due impartiality to be achieved within the programme or over an editorially linked series. Rules 5.11 and 5.12 required the more exacting standard for major prescribed matters in each programme or in clearly linked and timely programmes. The Code specified wider measures when intended, as in rule 5.13 and definition [D8].
5. The result was not inconsistent with TV-Novosti. That decision concerned a broadcaster’s attempt to rely on unlinked programmes as a defence to an individual programme breach. It did not support a wider service-wide measure for either the presence or absence of due impartiality.
6. Even assuming the claimant’s interpretation was correct, Ofcom’s further reasons under the Filtering Test were lawful. It was rational to consider the temporal scope of the complaints, the scale and systemic character of the allegation, the proportionality and utility of sampling, the earlier assessment of similar material, and the limited prospect of useful further guidance.
7. The applicable unreasonableness test asked whether the decision was outside the range of reasonable decisions or contained a demonstrable flaw in reasoning. The decision’s reasoning was clear and logical, and did not fail the Balchin standard.

The judgment describes an earlier Administrative Court claim by the claimant, which was held unarguable in R (Keighley) v BBC [2019] EWHC 3331 (Admin). That decision was part of the claimant’s background and was not an appeal in the present proceedings.