In a recent case1, the Court of Appeal of England and Wales has set out nine principles derived from decisions of the European Court of Human Rights which should be applied when considering the possible infringement of a party’s right to freedom of expression under Article 10 of the European Convention on Human Rights (the “Convention”).

Background

Mr Jon Gaunt, a former presenter on the radio station Talksport, brought an appeal against the dismissal by the Divisional Court of his application to judicially review and overturn the finding of the broadcasting industry regulator, the Office of Communications (“Ofcom”) that the broadcast of an interview by him was in breach of the Broadcasting Code because it caused significant and unnecessary offence. He argued that the Ofcom finding was a disproportionate interference with his right to freedom of expression under Article 10 of the Convention.

The interview

Mr Gaunt was a regular presenter on the radio station. In November 2008, he interviewed the Cabinet Member of a London council in respect of the council’s proposed new policy to ban smokers from becoming foster parents on health grounds. Mr Gaunt had foster parents as a child and he was strongly opposed to the policy.  

The first part of the interview was reasonably controlled and Mr Gaunt gave the councillor a reasonable opportunity to explain the council’s policy. The Court found, however, that the interview then degenerated into a slanging match. During the interview, Mr Gaunt called the councillor a “Nazi” on more than one occasion, a “health Nazi” an “ignorant pig” and an “ignorant idiot”. The Divisional Court stated the interview as a whole could be described as a rant.  

Within ten minutes of the interview ending Mr Gaunt broadcast an apology to the audience. About an hour later he broadcast a further apology (albeit somewhat begrudging) for calling the councillor a Nazi. Mr Gaunt was suspended from his programme later that day and Talksport terminated his contract without notice ten days later and subsequently broadcast its own apology.  

There were 53 complaints to Ofcom from listeners after the interview, although the councillor himself did not complain to Ofcom.

The legislative and regulatory framework

Broadcasting standards in the United Kingdom are principally governed by the Communications Act 2003. The Act obliges Ofcom to set up a standards code – the Broadcasting Code – for radio and television services (impartiality, accuracy or bias complaints in respect of BBC radio and television programmes are considered by the BBC Trust rather than Ofcom).  

Paragraph 2.1 of the Code provides that generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive materials.

Paragraph 2.3 of the Code states that in applying generally accepted standards, broadcasters must ensure that material which may cause offence, such as offensive language, humiliation, distress and violation of human dignity is justified by the context.  

Any legislation, code or decision which has the aim or effect of limiting any person’s freedom of expression must be considered and assessed by reference to Article 10 of the Convention.

  1. “Everyone has the right to freedom of expression. This right shall include freedom to …. receive and impart information and ideas without interference by public authority…. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.  
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society …. for the protection of the reputation or rights of others ….”.  

The Broadcasting Code states that it has been drafted in particular in the light of the right to freedom of expression under Article 10 of the Convention which encompasses a broadcaster’s right to disseminate, and an audience’s right to receive, creative material, information and ideas without interference, but subject to restrictions as prescribed by law in a democratic society.  

The Ofcom decision

Ofcom noted in its decision the steps which the radio station said it took before and during the interview to prevent any breaches of the Code and noted the apologies which had been broadcast, but expressed concern that the station’s procedures were not robust enough to deal with problematic material being broadcast live.

Ofcom concluded that the language used by Mr Gaunt and the manner in which he treated his interviewee had the potential to cause offence to many listeners.  

Even taking into account the context of the programme, such as the nature of the service, the audience expectations and the editorial content, Ofcom found that there was not sufficient justification for the offensive material. The broadcaster therefore was found to have breached rules 2.1 and 2.3 of the Code.

Ofcom’s finding was against Talksport which accepted that the interview breached the Code. No sanction other than the publication of the finding was imposed. Mr Gaunt challenged the finding by judicial review on the ground that it fell foul of his right to freedom of expression under Article 10.  

The Divisional Court rejected Mr Gaunt’s appeal and held that Ofcom was justified in its conclusion. The Court stated that the broadcast was undoubtedly highly offensive to the interviewee and was well capable of offending the broadcast audience. The essential point was that the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification. The Court found that Ofcom’s finding did not constitute any material interference with Mr Gaunt’s freedom of expression rights. Mr Gaunt appealed to the Court of Appeal.  

The Court of Appeal

The Court of Appeal noted that freedom of expression is a fundamental human right; the right to say what one wants and how one wants, and to impart and receive ideas. In the light of the power of language, ideas and information, freedom of expression underpins a free society. It has been described as the “lifeblood of democracy” 2. However, freedom of expression is not a purely cosy right and “freedom only to speak inoffensively is not worth having” 3.

However, like virtually all human rights, freedom of expression carries with it responsibilities which themselves reflect the power of words, whether spoken or written. Hence the need for some restrictions on freedom of expression as recognised by Article 10.2, although this also recognises that any attempt to curtail freedom of expression must be approached with caution.  

The Court noted that paragraph 2 of the Code recognises that offensive material or language will often be justifiable, but justifiability must be assessed by reference to the context of the broadcast.  

The judgments of the European Court of Human Rights demonstrate that the question whether a statement was properly held to be unlawful by a national tribunal is highly fact-sensitive and must be assessed by reference to all the relevant circumstances of the case, but the Court of Appeal extracted certain principles which should be applied when the issue is the potential infringement of Article 10 rights.  

  1. Where a party contends that his Article 10 rights have been infringed by the decision of a national tribunal the need for the restriction on freedom of expression “must be established convincingly” 4.  
  2. The question to be considered is whether the interference with the party’s Article 10 rights was “proportionate to the legitimate aim pursued” 5.  
  3. In deciding that issue, a margin of appreciation is to be afforded to the national authorities 6.
  4. In deciding whether a national tribunal went beyond the margin of appreciation, the severity of the sanction imposed on the party is potentially relevant7.  
  5. In deciding whether any interference with freedom of expression falls foul of Article 10, the court “will have particular regard to the words used… the context in which they were made public and the case as a whole” 8.  
  6. The latitude to be accorded to someone who insults another in public is greater if the insulting words are used in the context of “an open discussion of matters of public concern” or in the context of “freedom of the press”, than if the words are used by a “private individual” 9.  
  7. There is a distinction to be drawn between “harsh words” which constitute a “gratuitous personal attack” and those which form “part of a political debate”10.  
  8. The fact that there is no “possibility of reformulating, perfecting or retracting” the statement before publication is a relevant factor11.  
  9. At least in the context of religious opinions and beliefs, it is legitimate to “include an obligation to avoid as far as possible expressions that are gratuitously offensive to others … and which … do not contribute to any form of public debate capable of furthering progress in human affairs” 12.  

The Court of Appeal endorsed the approach of the Divisional Court in determining, upon an application for judicial review, whether the applicant’s rights had been infringed. The Court’s task is to decide for itself whether the finding disproportionately infringed the applicant’s Article 10 freedom of expression and, in doing so, the court must have “due regard” to the judgment of the statutory regulator who proceeded on correct legal principles.  

The Court noted that (i) the interview was concerned with an issue of general public interest, (ii) it was a live discussion not pre-recorded, (iii) the interviewer was well-known to be hard-hitting and robust, who felt strongly about the issue and (iv) the interviewee was a politician who made no subsequent complaint.  

When considering whether the interview breached the code, the court must consider the interview as a whole and in its context. The Court of Appeal held that when one combines the extremely aggressive tone of the interview, the constant interruptions, the insults, the ranting, the consequent lack of any substantive content and the time which the interview was allowed to run on, the regulator was right to conclude that there had been a breach of the Code.  

As for the question of the proportionality of the Ofcom finding, given that no fine or other sanction, other than the publication of the finding itself, was imposed, it was impossible to contend that the regulator’s reaction even got near being disproportionate.