R (on the application of Avaaz Foundation) v The Office of Communications (Ofcom)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 27 July 2018 |
| Neutral Citation | [2018] EWHC 1973 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4497/2017 |
| Date | 27 July 2018 |
[2018] EWHC 1973 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/4497/2017
and
George Peretz QC and Azeem Suterwalla (instructed by Hausfeld & Co. LLP) for the Claimant
Pushpinder Saini QC, Jessica BoydandFlora Robertson (instructed by Ofcom) for the Defendant
Julian Gregory (instructed by GLD) for the 1 st Interested Party
Lord Pannick QC and James Segan (instructed by Allen & Overy LLP) for the 2 nd Interested Party
Kieron Beal QC (instructed by Herbert Smith Freehills LLP) for the 3 rd Interested Party
Hearing dates: 19 and 20 June 2018
Judgment Approved
Introduction
The Claimant, the Avaaz Foundation, challenges the decision of the Office of Communications (“Ofcom”) dated 29 June 2017 (“the Decision”) by which Ofcom concluded that various allegations of impropriety made against Fox News, a subsidiary of 21 st Century Fox Inc (“Fox”), and the evidence in support of those allegations, did not provide a sufficient basis for it to decide in advance of a proposed merger between Fox and Sky plc (“Sky”) that Sky, an existing holder of statutory broadcast licences, would not remain fit and proper to hold its licences.
The Claimant is a global citizens movement which has concerns about how the concentration of media ownership threatens the public interest.
Ofcom is a statutory body constituted under section 1 of the Office of Communications Act 2002. Its functions include the regulation of television and radio broadcasting in the United Kingdom, as principally provided for by the Communications Act 2003 (“the 2003 Act”).
The Secretary of State for Digital, Culture, Media and Sport (“the Secretary of State”) takes the final decision as to whether the proposed merger will operate against the specified public interests, which include “plurality of the media”, and what remedy should be imposed (see Article 12 of the Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003) (“the 2003 Order”).
At the time of the Decision, Fox held 14 broadcast licences issued by Ofcom which cover services including Fox News.
At the time of the Decision, Sky held 54 television broadcast licences issued by Ofcom, which cover services including Sky News.
The Murdoch Family Trust owns 38.9% of Fox. Currently Fox owns 39.1% of Sky. After the proposed merger Fox would own 100% of Sky.
On 22 January 2018 Morris J granted permission to apply for judicial review.
Factual Background
On 9 December 2016, Sky announced that it had received an approach from Fox to acquire the shares in Sky that it does not already own.
On 3 March 2017, Fox notified the European Commission (“the Commission”) of the proposed merger.
On the same day the Secretary of State published a “minded to” letter in which she gave notice that she intended to issue a European Intervention Notice (“EIN”) in respect of the Fox/Sky merger. She identified two public interest considerations, namely (1) media plurality; and (2) genuine commitment to the attainment of broadcasting standards.
On 16 March 2017 the Secretary of State issued an EIN stating that she would be intervening in respect of the Fox/Sky transaction on the two public interest grounds she had identified.
On the same day Ofcom issued a Guidance Note for public interest test on the proposed acquisition of Sky plc by 21 st Century Fox Inc, and an Invitation to comment.
The Claimant made submissions to Ofcom on Fox's record and on the question of whether Sky would, after acquisition by Fox, be a fit and proper person to hold a broadcasting licence; and in addition the Claimant attended oral evidence sessions with senior officials from Ofcom on 12 April, 9 May and 17 May 2017.
On 29 June 2017 Ofcom published (1) its advice to the Secretary of State under the 2003 Order in respect of the two public interest considerations (“the Public Interest Report”); and (2) the Decision, namely the result of its review on whether, following the proposed merger, Sky would be a fit and proper person to hold a broadcasting licence.
In respect of the Public Interest Report, Ofcom concluded that the transaction raised a public interest concern, that media plurality would be adversely affected and that this concern may justify a reference by the Secretary of State to the Competition and Markets Authority (“CMA”).
In the Decision Ofcom concluded (at para 10):
“In summary the behaviours alleged at Fox News amount to significant corporate failure, however the overall evidence available to date does not provide a reasonable basis to conclude that if Sky were 100% owned and controlled by Fox, it would not be fit and proper to hold broadcast licences.”
At paragraph 70 of the Decision Ofcom stated:
“In 2012, we carefully considered the available evidence including in relation to the directors and managers that Sky shared with NGN (i.e. James Murdoch and Rupert Murdoch). We came to the view then that Sky remained fit and proper to hold a broadcast licence, while acknowledging that senior leadership fell short of the conduct to be expected. No new material evidence directly touching on those individuals has come to light since 2012. Disclosure is still ongoing in civil litigation against NGN and if this throws up new evidence, we will consider it as part of our ongoing duty to assess fitness and properness.”
Developments post the Decision
On the same day as the publication of the Decision, 29 June 2017, the Secretary of State announced that she was minded to refer the merger to the CMA for further investigation, on the ground of media plurality (but not in respect of the need for a genuine commitment to broadcasting standards, in relation to which she requested comments).
On 8 August 2017, following further submissions from the Claimant and representations from others on her referral decision, the Secretary of State announced that she would be taking further advice from Ofcom.
On 21 August 2017 the Claimant's solicitors, Hausfeld, sent Ofcom a pre-action letter in which they stated that the Claimant intended to challenge the Decision.
On 12 September 2017 the Secretary of State wrote to Sky and Fox and informed them that, in addition to the media plurality ground, she was now minded to refer the merger to the CMA on the ground of commitment to broadcasting standards.
On 14 September 2017 Ofcom replied to the pre-action letter of 21 August 2017. It denied the proposed claim in its entirety, although on 11 September it issued a revised version of the Decision stating that new wording in two paragraphs better conveyed its originally intended reasoning.
On 20 September 2017 the Secretary of State referred the two public interest considerations to the CMA.
On 23 January 2018 the CMA published its provisional findings on the reference from the Secretary of State (“Provisional Findings”). The CMA provisionally found (1) that Fox, Sky and the Murdoch Family Trust had a genuine commitment to the attainment of the broadcasting standards set out in s.319 of the 2003 Act, and that the proposed merger could not be expected to operate against that public interest consideration; and (2) the proposed merger may be expected to result in insufficient media plurality and operate against that public interest consideration, and the CMA published a notice setting out possible remedies that could address these provisional concerns.
On 3 April 2018 the CMA published undertakings offered by Fox to ring-fence Sky News or to divest it to The Walt Disney Company (“Disney”), in each case containing detailed safeguards ensuring the ongoing editorial independence of Sky News.
On 1 May 2018 the Secretary of State received the final report submitted by the CMA on the public interest considerations raised by the proposed merger.
On 5 June 2018 the Secretary of State wrote to Fox and Sky issuing his public interest decisions in relation to the proposed merger. Shortly thereafter, he made a public statement to Parliament and published the CMA's final report. He decided that the merger may be expected to operate against the public interest on the plurality ground (the public interest consideration set out in s.58(2C)(a) of the Enterprise Act 2002), but not on grounds of the parties' commitment to broadcasting standards.
The Secretary of State was required to consider, in accordance with Articles 12(6) and (7) of the 2003 Order, what action would be reasonable and practicable to remedy, mitigate or prevent adverse public interest effects which may be expected to result from the proposed merger. Having considered the CMA's assessment of different remedy options, the Secretary of State found, in line with the CMA's conclusions, that the divestiture of Sky News to Disney or to another suitable purchaser could potentially remedy the adverse public interest effects in an effective and proportionate manner.
On 19 June 2018 the Secretary of State published updated undertakings offered by Fox, along with new undertakings offered by Disney, for the divestment of Sky News to Disney. The Secretary of State considered that these undertakings provided significant protections for the long-term future and editorial independence of Sky News. In consequence of this, he stated that he now proposed to accept the Fox and Disney undertakings. However before doing so, and in accordance with the 2002 Act, he would commence a consultation period within which representations...
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Carlin's (Sean) Application and in the matter of a decision of The Office of Communications (Leave stage)
...lightly interfere with its regulatory judgement in this regard, given its expertise and experience: see R (Avaaz Foundation) v OFCOM [2018] EWHC 1973 (Admin), per Supperstone J, at paras [54] and [65]. It was open to Ofcom to assess the propriety of a broadcaster conti nuing to hold a licen......