R (Gaunt) v Office of Communications (Liberty intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger Mr,Lord Justice Toulson,Lord Justice Etherton |
| Judgment Date | 17 June 2011 |
| Neutral Citation | [2011] EWCA Civ 692,[2011] EWCA Civ 75 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2010/1893 |
| Date | 17 June 2011 |
[2011] EWCA Civ 692
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Sir Anthony May PQBD and Blair J
Case No: CO/9919/2009
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Toulson
and
Lord Justice Etherton
Case No: C1/2010/1893
and
Gavin Millar QC and Mark Henderson (instructed by Howe and Co) for the Appellant
David Anderson QC and David Glen (instructed by Ofcom Legal Department) for the Respondent
Ivan Hare (instructed by Liberty) for the Intervener made written submissions
Hearing date: 11 May 2011
Introductory
This is Mr Jon Gaunt's appeal against the dismissal by the Divisional Court of his application to quash the finding made by the Office of Communications ("Ofcom") that the broadcasting of an interview which he conducted ("the interview") was in breach of rules 2.1 and 2.3 of the Broadcasting Code. His case, which is essentially the same as that before the Divisional Court, is that Ofcom's finding was a disproportionate interference with his freedom of expression under article 10 of the European Convention on Human Rights ("the Convention").
The broadcasting of the interview
The interview took place shortly after 11.00 am on 7 November 2008, on the Talksport radio channel, on which Mr Gaunt had a regular slot. The interviewee was Mr Michael Stark, the Cabinet Member for Children's Services at Redbridge London Borough Council ("Redbridge"). He was being interviewed in connection with Redbridge's proposal to ban smokers from becoming foster parents on the ground that passive smoking could harm their foster children. When a child, Mr Gaunt had himself had foster parents, and he strongly opposed this proposal.
Mr Gaunt had written an article on this very topic, which had been highly critical of Redbridge's policy, and which had been published in the Sun newspaper on the same day, 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 praised foster parents generally, and Mr Gaunt's own foster parents in particular; it criticised Redbridge as "health and safety Nazis"; it described Redbridge's approach as involving a "master race philosophy"; and it referred to Social Services as "the SS".
Like the Divisional Court, we have been provided with a transcript of the interview, as well as a recording of it on CD. In the judgment of the Divisional Court, 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 policy. [Mr Gaunt] then asked him about existing foster parents who only ever smoke in the open air. Mr Stark explained that Redbridge 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 [Mr Gaunt] 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 [Mr Gaunt] said 'so you are a Nazi then?' When Mr Stark began to protest, [Mr Gaunt] 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, [Mr Gaunt] challenged him to 'take action if you wish', but then said 'you're a health Nazi'. The slanging match continued with [Mr Gaunt] asking Mr Stark if he wanted to carry on with the interview, and Mr Stark replying that he would love to if [Mr Gaunt] would just shut up for a minute. It emerged that [Mr Gaunt] 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 [Mr Gaunt] 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. [Mr Gaunt] 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.
4. 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 [Mr Gaunt] 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."
Within ten minutes of the interview ending, Mr Gaunt broadcast an apology to the audience. He accepted that he had not "h[e]ld it together", and said that he had been "unprofessional" and had "lost [his] rag", and wished he had not, but the topic was "very close to [his] heart". About an hour later, 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". Mr Gaunt was suspended from his programme that day, and Talksport terminated his contract without notice ten days later, and broadcast its own apology on 21 April.
The legislative and regulatory background
Broadcasting standards are now governed by the Communications Act 2003 ("the 2003 Act"), which also requires them to be implemented, supervised and enforced by Ofcom. In that connection, the 2003 Act largely replaces the Broadcasting Act 1996 ("the 1996 Act").
Section 3(2)(e) of the 2003 Act places a 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" in broadcast programmes. By section 3(4)(g) of the 2003 Act, all such stations are required to have regard to "the need to secure" this "in the manner that best guarantees an appropriate level of freedom of expression".
Section 319 of the 2003 Act obliges Ofcom to set up a "standards code" for radio and television services which is "calculated to secure" the so-called "standards objectives". These objectives include, at section 319(2)(f), that "generally accepted standards are 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 offensive and harmful material". Ofcom is also obliged by section 324 of the 2003 Act to "establish procedures for handling and resolution of complaints about the observance of [those] standards".
This code, known as the Broadcasting Code ("the Code"), states in terms that it has been drafted in particular in the light of the right to freedom of expression as expressed in article 10 of the Convention ("Article 10"), 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 prescribed by law and necessary in a democratic society.
Para 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. Para 2.3 of the Code states 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.
Any legislation, any code, or any 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, which, so far as relevant, provides as follows:
"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 Ofcom Finding
Ofcom considered the interview, after there had been 53 complaints from listeners about it. On 8 June 2009, Ofcom issued its "Finding" (described as "Amended Finding", but the reason for the amendment is irrelevant for the purpose of these proceedings).
The Finding began by referring to the 53 complaints, which, as it recorded, criticised the treatment of Mr Stark during the interview as "an unprovoked personal attack", "oppressive", and "intimidating", and objected to the descriptions of Mr Stark as a "Nazi" and an "ignorant pig". The Finding referred to the fact that some of the complaints suggested that the use of the term "Nazi" belittled the sacrifices made in the Second World War. The Finding then quoted extracts of exchanges during the interview, describing it as "extremely heated", with "tense exchanges".
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