Keighley, R (On the Application Of) v The Office Of Communications [2025] EWHC 416 (Admin)

Thomas Roe KC and Adam Riley (instructed by McCarthy Denning) for the Claimant

FORDHAM J:

Introduction

• This case is about how to measure for “due impartiality” under Ofcom’s Broadcasting Code rules. Is due impartiality to be measured by looking at a programme in its context, extended in some circumstances to looking at a relevant linked series of programmes? Or is due impartiality also measured by looking more widely, across the programmes within a broadcasting service as a whole?

• The previous case of R (Autonomous Non-Profit Organisation TV-Novosti) v Ofcom [2021] EWCA Civ 1534 [2022] 1 WLR 481 also involved questions about measuring due impartiality under the Code rules. But the orientation of the case was different. There, individual programmes faced condemnation, as a breach of the Code rules, for a lack of due impartiality. There, the claimant broadcaster was arguing that the virtue of due impartiality should be demonstrable by taking into account other, unlinked, programmes broadcast on the same service (§§6, 8). The Court of Appeal disagreed. Reliance could be placed, under the Code rules and its definitions, on a series of programmes and on linked and adjacent programme content (§§38-44). But the virtue of due impartiality could not be demonstrated more widely, to defend a claimed lack of due impartiality within an individual programme.

• Here, the orientation is different. In this case, the Claimant made complaints inviting condemnation of a broadcaster (the BBC) for a lack of due impartiality. The Claimant wanted to demonstrate that vice across the service as a whole, without showing it in relation to any individual programme or series of programmes, with linked and adjacent programme content. Ofcom and the BBC say that this wider approach is not a measure of a lack of due impartiality under the Code rules, properly interpreted. The Claimant says they have both got the law wrong. That issue about interpreting the Scheme rules is the first of two issues in the case. There is a second issue about the reasonableness of a decision, but it only arises if the Claimant is right about the rules.

“Due Impartiality” [D1]

• Section 5 of Ofcom’s Broadcasting Code contains 13 rules (rules 5.1 to 5.13). There are also eight definitions (which I am labelling [D1] to [D8]). Seven of the definitions are within Section 5 and one (namely [D2]) is “introduced into Section 5” from Section 2 (TV-Novosti §39). The rules and remaining definitions are set out in full at §§22-26 below. Section 5 includes rules about “due impartiality” in presenting broadcast news (rules 5.1 and 5.3); rules about preserving “due impartiality” on particular matters of controversy or policy (rules 5.5 to 5.10); and rules about preserving “due impartiality” on “major” such matters of controversy or policy (rules 5.11 and 5.12). This is the Code definition [D1] of “due impartiality”.

[D1] Meaning of “due impartiality”. “Due” is an important qualification to the concept of impartiality. Impartiality itself means not favouring one side over another. “Due” means adequate or appropriate to the subject and nature of the programme. So “due impartiality” does not mean an equal division of time has to be given to every view, or that every argument and every facet of every argument has to be represented. The approach to due impartiality may vary according to the nature of the subject, the type of programme and channel, the likely expectation of the audience as to content, and the extent to which the content and approach is signalled to the audience. Context, as defined in Section 2: Harm and offence of the Code, is important.

• Content from Ofcom’s non-statutory guidance on due impartiality was set out in TV-Novosti at §21. Mr Roe KC and Mr Riley for the Claimant invited the Court’s attention to a March 1977 Report of the Committee on the Future of Broadcasting (Cmnd 6753), §17.10 of which said that due impartiality was different from “balance” and “neutrality”; that it should allow “the widest possible range of views and opinions to be expressed”; that broadcasters must also “take account … of the weight of opinion”; and that broadcasters have to “recognise” that the range and weight of opinion are “constantly changing”. They also emphasised Lord Bingham’s “fundamental rationale of the democratic process” (quoted in TV-Novosti at §32) about “competing views, opinions and policies” being “publicly debated and exposed to public scrutiny”; with “differing views … expressed, contradicted, answered and debated”; it being a “duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated”.

“Context” [D2]

• Here is the Code definition [D2] of “context”, referred to in the last sentence of the “due impartiality” definition [D1]. All numbering in square brackets in quotations is mine.

[D2] Meaning of “context”. [1] Context includes (but is not limited to): [i] the editorial content of the programme, programmes or series; [ii] the service on which the material is broadcast; [iii] the time of broadcast; [iv] what other programmes are scheduled before and after the programme or programmes concerned; [v] the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally or programmes of a particular description; [vi] the likely size and composition of the potential audience and likely expectation of the audience; [vii] the extent to which the nature of the content can be brought to the attention of the potential audience for example by giving information; and [viii] the effect of the material on viewers or listeners who may come across it unawares. [2] Time and scheduling of broadcast are not relevant to the provision of programmes on demand but, for programmes made available on BBC ODPS, context also includes (but is not limited to) the nature of access to the content eg. whether there are measures in place that are intended to prevent children from viewing and/or listening to the content.

Ofcom’s “Enforcement Jurisdiction”

• Ofcom has responsibilities in relation to the enforcement of the Code. Like the Code, those responsibilities extend to Code-regulated broadcasters. The parties have spoken in this case about the extent of Ofcom’s “enforcement jurisdiction”. By that, they mean the reach of the Code rules and what can constitute a breach by a broadcaster of those rules. Ofcom has since 22 March 2017 regulated the BBC in respect of the due impartiality requirements under Section 5 of the Code. The applicability of the Code to the BBC has this legal pathway: s.198(2)(a) of the Communications Act 2003; Article 49 of the BBC Charter; and then clause 59c of and Sch 3 §3 to the BBC Framework Agreement. The Charter and Framework Agreement are defined in s.362(1) of the 2003 Act.

The “Filtering Test”

• In considering complaints, Ofcom has a Filtering Test, set out in Ofcom’s Procedures for Investigating Breaches of Content Standards on BBC Broadcasting Services and BBC On Demand Programme Services (3 April 2017) at §1.30:

Ofcom will first consider whether, on its face, a complaint raises potentially substantive issues under the Broadcasting Code that warrant investigation by Ofcom. It will do so by reference to the gravity and/or extent of the matter complained of, including, for example, whether it involves harm to minors or severe financial or physical harm; and whether Ofcom considers the BBC reached an appropriate decision on the matter…

Ofcom also has a “BBC-First Principle” (Procedures §1.14), that complaints should normally be made to the BBC in the first instance, before being pursued with Ofcom.

Three Agreed Points about Due Impartiality under the Code

• Everyone in this case agrees these three things. First, that the Code rules requiring due impartiality can be breached in the case of an individual programme, viewed in context. Secondly, that in some circumstances the Code rules requiring due impartiality are not breached in the case of an individual programme, where due impartiality has been achieved by the broadcaster over the course of a relevant series of programmes. Thirdly, that in no circumstances can a breach of the Code rules requiring due impartiality be avoided – whether in the case of an individual programme in context or a relevant series of programmes – by the fact of achieving due impartiality more widely, across the programmes in the service as a whole. I will explain each of these at §§27-29 below.

This Claim

• This is a claim for judicial review. The “Target Decision” – whose legality is being challenged – is Ofcom’s refusal on 23 March 2022 to proceed with the Claimant’s three linked complaints, put forward by him on 7 July 2020, 19 October 2020 and 10 February 2021. The Target Decision reached two key conclusions. First, that the Code rules on due impartiality are applicable only “at the level of” an “individual broadcast” or an “editorially linked series of programmes”. Second, that even on the assumption that that first conclusion was wrong, the Claimant’s complaints did not warrant investigating applying the Filtering Test. The judicial review claim challenges the first key conclusion as wrong in law; and the second key conclusion as vitiated by public law unreasonableness. Those are the two issues. I have received considerable assistance from everyone in the three legal teams.

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