On 13 July, Sir Anthony May, the President of the Queen’s Bench Division, and Mr Justice Blair handed down their judgment in R (Gaunt) v Ofcom.  The case concerned an explosive outburst by radio show host Jon Gaunt on his Talksport radio programme in November 2008.  Gaunt was interviewing Michael Stark, the Cabinet Member for Children’s Services for Redbridge London Borough Council.

The interview concerned a new ban the Council was proposing to bring in preventing smokers from becoming foster parents.  Gaunt, who was in care himself as a child, and who is known for his trenchant and strongly expressly views, took a highly hostile line.  In the day of the interview, he had written an article for The Sun entitled “Fags didn’t stop my foster mum caring for me” and characterised the Council as “health and safety Nazis“.  The judges stated that the article did not strike them as “unduly offensive”.

Extracts from the interview can be found here.  After a reasonably unremarkable start, the interview descended into what the Court described as a “slanging match”.  Mr Stark contended that smokers inevitably smoked in their house.  Gaunt asked how he knew this and Mr Stark said that councillors at Redbridge said they never smoked in the building, but in fact did so.  At this point Gaunt said “so you are a Nazi then”.  When Mr Stark objected, Gaunt again said “no you are, you’re a Nazi”.  When Mr Stark protested that this was probably actionable, Gaunt responded by saying “take action if you wish”, but then said “you’re a health Nazi”.  By the end of the interview, Gaunt has called Mr Stark an “ignorant pig”, a “health fascist” and an “ignorant idiot”.

Within 10 minutes of the end of the interview, Gaunt apologised to the listeners accepting that he did not hold it together and that he had been unprofessional but said that it was something very close to his heart.  About an hour after the end of the interview, 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“.  But it was too late.  Gaunt was suspended by Talksport that day and his contract with them terminated some days later.

Ofcom received 53 complaints about the interview and investigated it under its Broadcasting Code (“the Code”).  This provided that:

“2.1       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 material. …

2.3          In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context.”

Talksport itself did not dispute that there had been a breach of the Code.  On 8 June 2009, Ofcom issued an amended finding (after Gaunt had questioned some of the surrounding circumstances of the broadcast as set out in its initial finding issued on 11 May 2009), in particular the steps which Talksport had said it had taken after the broadcast).  The amended finding stated:

“The overall tone of Jon Gaunt’s interviewing style on this occasion was extremely aggressive and was described by complainants as “oppressive”, “intimidating” and felt the interviewer was “shouting like a playground bully“.

Rule 2.3 of the Code states that offensive material: “may include … offensive language … humiliation, distress [and] violation of human dignity“. OFCOM considered the language used by Jon Gaunt, and the manner in which he treated Michael Stark, had the potential to cause offence to many listeners by virtue of the language used and the manner in which Jon Gaunt treated his interviewee. In this case, the offensive language used to describe Mr Stark, and what would be considered to be a persistently bullying and hectoring approach taken by Jon Gaunt towards his guest, exceeded the expectations of the audience of this programme, despite listeners being accustomed to a robust level of debate from this particular presenter. Even taking into account the context of this programme such as the nature of the service, the audience expectations and the editorial content, OFCOM did not consider that this was sufficient justification for the offensive material. The broadcaster therefore failed to comply with generally accepted standards in breach of Rules 2.1 and 2.3 of the Code.”

It was this finding which was challenged in the action.  Gaunt was supported in his application by Liberty, an unusual and perhaps unlikely ally for him.  Both argued that his right to freedom of expression under Article 10 rendered the finding unlawful.

The court thus had to reconcile two very substantial freedoms/discretions.  The first was the freedom granted to persons under Article 10 to express themselves free from interference from the state.  Gaunt argued that the restrictions imposed by local authorities on those seeking to be foster parents, was a matter of significant public importance on which he had strong views and that he should be allowed to express those views.

The second was the very considerable discretion conferred by the courts on expert regulators such as Ofcom to determine issues of this type.

The court rejected Gaunt’s case stating that the “broadcast was undoubtedly highly offensive to Mr Stark and was well capable of offending the broadcast audience”.  The judgment continued (paragraph 50):

“The essential point is that, the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification. In the result, we accept Mr Anderson’s submission that the Amended Finding constituted no material interference with the claimant’s freedom of expression at all. An inhibition from broadcasting shouted abuse which expresses no content does not inhibit, and should not deter, heated and even offensive dialogue which retains a degree of relevant content.”

This is plainly controversial.  Who is to say where the line is to be drawn so that views are so fiercely stated that they cease to be protected as content under Article 10 and are purely abusive?  It may be that the interference with Gaunt’s freedom of expression was justified, but to suggest that Article 10 was not materially engaged at all appears, as respected media commentator Roy Greenslade (and again no natural ally of Gaunt) has noted, misguided.

The courts distaste for tabloid approaches to freedom of expression has caused controversy before.  Tone is one of the ten “non exhaustive” factors under Reynolds and in particular in Grobbelaar the tabloid tone was a significant reason for the Reynolds defence failing.  But this has led to accusations that the courts recognise freedom of expression only when that expression is in measured and gentlemanly terms.  But for better or worse, the world is not necessarily like that.

Another issue arising from the case is the necessity or justification for the regulation of broadcasting at all.  This is particularly pertinent since as stated above Gaunt wrote a newspaper article for The Sun along the same lines as the interview in question and after his departure from Talksport started an online programme for The Sun.  Neither of these would be subject to any statutory regulation.  (Journalists are of course subject to the non-statutory PCC Code, but nothing in that could obviously be invoked in the context of an offensive interview.)

Broadcast regulation is justified by the supposed particular impact that radio and television can achieve.  However, in the Internet age this in no longer so clear cut, in particular with the rise and rise in particular of social networking sites.  This was graphically seen with the recent furore over the establishment of a page on Facebook venerating killer and short-lived fugitive Raoul Moat.

The Government and Ofcom are considering the correct approach to regulate programme content streamed over the Internet.  However, currently the Internet is generally subject to no regulatory restraint over than the general law (and often it seems hardly even that).  But we are yet to succumb to catastrophe.  This must call into question the need for such strict regulation of broadcasting.

One apparent consequence of the ruling was that the Sun withdrew its internet radio show fronted by Gaunt.  It had been suggested that The Sun would seek to extend the reach of the show by broadcasting it on DAB radio.  The newspaper stated the additional cost of doing so, but the timing suggests that they had hoped the court would require a more liberal broadcasting regulatory regime.  If so, they were to be disappointed.

Dan Tench is a partner in the Litigation and Arbitration Group at Olswang LLP and is the Head of Judicial Review and Public Law.