Mark Steyn, R (on the application of) v Office of Communications
[2024] EWHC 2028 (Admin)
GB News Limited, R (on the application of) v Office of Communications
4 October 2024
[2024] EWHC 2658 (Admin)
High Court
GB News had its show criticized by Ofcom for being biased. The court said GB News could challenge Ofcom, but wouldn't stop Ofcom from finishing its investigation and releasing its findings. The court thought it was important for Ofcom to be able to do its job and for the public to know about the findings.
Key Facts
- •GB News Limited challenged Ofcom's decision that a GB News programme breached impartiality rules.
- •Ofcom found the programme breached rules 5.11 and 5.12 of the Broadcasting Code by giving a platform to the Prime Minister without including sufficient views from the Labour Party.
- •GB News argued Ofcom's decision was unreasonable, disproportionate, unfair, involved a mistaken interpretation of the Code, and prematurely classified the breach as 'serious and repeated'.
- •Ofcom's sanctions process was nearly complete when GB News applied for interim relief (a stay or injunction).
- •The court considered the appropriate test for granting interim relief in this context, balancing the claimant's interests against the public interest in Ofcom's regulatory function and the public's right to information.
Legal Principles
Due impartiality must be preserved on matters of major political controversy (Broadcasting Code rules 5.11 and 5.12).
Communications Act 2003 and Broadcasting Code
Test for granting interim relief in judicial review: Balance of convenience (American Cyanamid v Ethicon), but not automatic with permission granted.
American Cyanamid v Ethicon [1975] AC 396; R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923; R (Governing Body of X) v Ofsted [2020] EWCA Civ 594; R (Barking and Dagenham College) v Office for Students [2019] EWCA 2667 (Admin)
In cases involving preventing publication, a high hurdle must be met, showing 'pressing grounds', 'most compelling reasons', or 'exceptional circumstances'.
R (Barking and Dagenham College) v Office for Students [2019] EWCA 2667 (Admin); R (Governing Body of X) v Ofsted [2020] EWCA Civ 594
Public interest in allowing a public authority to perform its function, including the public's right to information under Article 10 ECHR, is a key factor in interim relief decisions.
Governing Body of X case, paragraphs 63-66; Human Rights Act 1998, section 12(3)
Under section 12(3) of the Human Rights Act 1998, interim relief requires showing the claimant is 'likely to establish' the decision shouldn't be published.
Human Rights Act 1998, section 12(3); Banerjee v Cream Holdings Ltd [2004] UKHL 44
Outcomes
Permission granted for judicial review on grounds 1 and 2 (unreasonableness/disproportionality and misinterpretation of the Code).
The court found these grounds reasonably arguable and raised matters of public importance.
Ground 3 (premature 'serious and repeated breach' finding) was withdrawn after Ofcom agreed to clarify the provisional nature of the finding on its website.
The clarification addressed GB News' concerns.
Application for a stay or injunction was refused.
The court found the claimant did not meet the high threshold for interim relief, considering the advanced stage of the sanctions process, the public interest in Ofcom's decision publication, and the limited incremental harm from publication given the existing publicity.
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