Gaunt v Ofcom Liberty (Intervener)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 13 July 2010 |
| Neutral Citation | [2010] EWHC 1756 (QB) |
| Court | Queen's Bench Division |
| Date | 13 July 2010 |
| Docket Number | Case No: CO/9919/2009 |
[2010] EWHC 1756 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Blair
Case No: CO/9919/2009
— and —
G Millar QC and M Henderson (instructed by Howe & Co) for the Claimant
D Anderson QC and D Glen (instructed by Ofcom Legal Dept) for the Defendant
Ivan Hare instructed by Liberty for the Intervener
Hearing dates: 15 th and 16 th June 2010
President of the Queen's Bench Division:
This is the judgment of the court
The radio interview
The claimant, Jon Gaunt, claims in these judicial review proceedings that a finding of the defendant, OFCOM, that a broadcast radio interview conducted by him on 7 th November 2008 breached rules 2.1 and 2.3 of the Broadcasting Code is a disproportionate interference with his freedom of expression and an infringement of his rights under Article 10 of the European Convention on Human Rights. His claim is supported by Liberty, the Intervener.
The radio interview was with Michael Stark, the Cabinet Member for Children's Services for Redbridge London Borough Council, who was centrally concerned with his council's controversial proposal to ban smokers from becoming foster parents on the ground that passive smoking has a propensity for harming foster children. The claimant, who had himself been in care as a child and had then had foster parents, strongly opposed this proposal. He wrote a highly critical newspaper article published in the Sun newspaper on 7 th November 2008 on this topic under the headline "Fags didn't stop my foster mum caring for me". The article was expressed in forceful and at times colourful language. It expressed great appreciation for foster parents generally and the claimant's own foster parents in particular and criticised Redbridge as "health and safety Nazis", with reference to a "master race philosophy" and the Social Services who are referred to as the "The SS". This article did not strike us as unduly offensive.
Later that day, at something after 11.00 a.m., the claimant conducted a live interview with Mr Stark on the radio station Talksport. We have been provided with a transcript of the interview and have listened to a recording of it on CD. The first part of the interview was reasonably controlled, giving Mr Stark a reasonable opportunity to explain his council's policy. The claimant then asked him about existing foster parents who only ever smoke in the open air. Mr Stark explained that the council would not drag children away from existing foster parents, but that such smokers would not be used in the future. The trouble was that such people do smoke in the house. Asked by the claimant how he knew this, Mr Stark explained that there were Redbridge councillors who say they never smoke in the building, but in fact do so. To which the claimant said "so you are a Nazi then?". When Mr Stark began to protest, the claimant again said "no you are, you're a Nazi". Mr Stark protested vehemently that this was an offensive and insulting remark, and the interview then degenerated into an unseemly slanging match. When Mr Stark protested that the insult, as he saw it, was probably actionable, the claimant challenged him to "take action if you wish", but then said "you're a health Nazi". The slanging match continued with the claimant asking Mr Stark if he wanted to carry on with the interview, and Mr Stark replying that he would love to if the claimant would just shut up for a minute. It emerged that the claimant had himself been in care. He referred to his column in the Sun that day and again called Mr Stark a "health Nazi" and then "a Nazi". The heated shouting continued with the claimant doing much of the talking. Mr Stark asked him just to shut up for a moment, and said in effect that the conditions of those in care were better than they had been. The claimant regarded this as an offensive insult to his own upbringing and called Mr Stark "you ignorant pig". He later referred to him as a "health fascist" and an "ignorant idiot", and shortly after this he ended an interview that by then had got completely out of control.
It is scarcely possible to convey the general and particular tone of this interview in a short written summary, and the full transcript is in this respect incomplete. You have to hear it for its full impact. As we have said, it degenerated into a shouting match from the point when the claimant first called Mr Stark "a Nazi". That first insult was not said with particular vehemence, but "you ignorant pig" was said with considerable venom and was we think gratuitously offensive. The interview as a whole can fairly be described as a rant.
There is a factual dispute, which we cannot resolve, about whether, and if so to what extent, Talksport's broadcasting editors may have encouraged the claimant during the live broadcast itself to moderate its conduct. Whatever the precise position, within 10 minutes of the end of the interview, the claimant apologised to the listeners (but not to Mr Stark) accepting that he did not hold it together. He had been, he said, unprofessional and lost his rag. It was something very close to his heart. He wished that he had not. About an hour after the end of the broadcast, he broadcast a further apology saying "The councillor wants me to apologise for calling him a Nazi. I'm sorry for calling you a Nazi". The claimant was suspended from his programme by Talksport that day. Talksport terminated his contract without notice by letter dated 17 th November 2008.
The defendant regulator investigated the matter under the Broadcasting Code having received 53 complaints from listeners about the broadcast. On 8 th June 2009, the defendant issued their Amended Finding, which is challenged in these proceedings.
Legislation and the Broadcasting Code:
By section 6(1)(a) of the Broadcasting Act 1990, broadcasters were regulated so as to require them to comply with a requirement that nothing would be included in their programmes which "offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling". This has been replaced by section 3(2)(e) of the Communications Act 2003, which places the duty on OFCOM to secure the application by all television and radio stations of standards that provide adequate protection to members of the public from the inclusion of "offensive and harmful material". By section 3(4)(g), they are required to have regard to the need to do this in the manner that best guarantees an appropriate level of freedom of expression. Section 319 of the 2003 Act obliges OFCOM to set such standards for the content of programmes as appear to them best calculated to secure standard objectives. These objectives include, at section 319(2)(f), that generally accepted standards are applied to the content of broadcast programmes to provide adequate protection for members of the public from the inclusion in such programmes of offensive and harmful material. OFCOM is obliged by the Broadcasting Act 1996 and the 2003 Act to draw up a Code for television and radio covering, among other things, standards in programmes. This is known as the Broadcasting Code, which states explicitly that it has been drafted in particular in the light of the right to freedom of expression as expressed in Article 10 of the European Convention on Human Rights, which encompasses the audiences' right to receive creative material, information and ideas without interference, but subject to restrictions prescribed by law and necessary in a democratic society.
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 provides that, in applying generally accepted standards, broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language.
The Amended Finding
OFCOM's Amended Finding of 8 th June 2009 gave details of the interview, quoting parts of it. It referred to the fact that OFCOM had received 53 complaints, a number of them suggesting that the use of the term "Nazi" belittled the sacrifice made in World War 2. It noted that Talksport regretted what had happened and accepted that the interview fell way below the acceptable broadcasting standards that Talksport expects and demands. Talksport totally accepted and regretted that the language used by the claimant was offensive and that the manner in which the interview was conducted was indefensible. Talksport said that the claimant was known to be an outspoken, hard-hitting, opinionated and aggressive presenter. They had encouraged him to be himself, but also made clear to him the requirement always to remain within the law and to abide by the Code. Talksport maintained (but the claimant disputed) that the claimant had been given moderating instructions during the broadcast. Talksport had self-imposed boundaries: first, not to let robust debate descend into an unedifying war of words that included personal insults, offensive language and bullying; and second, to give both callers and guests a fair crack at expressing their views without being subjected to ridicule or abuse. Talksport considered that both boundaries had been crossed. The Finding noted that the claimant had broadcast two apologies to which we have referred. Talksport itself broadcast an apology on 21 st November 2008.
OFCOM's decision noted the importance of freedom of expression...
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R (Gaunt) v Office of Communications (Liberty intervening)
...given by Sir Anthony May P, on behalf of himself and Blair J, the interview was accurately summarised in the following terms at [2010] EWHC 1756 (QB), paras 3–4: "3. The first part of the interview was reasonably controlled, giving Mr Stark a reasonable opportunity to explain his council's......