GB News has asked a High Court judge to temporarily block Ofcom from sanctioning it for what the regulator says would be the channel’s twelfth breach of its code in less than two years.
The channel is seeking to challenge Ofcom’s provisional decision that a Q&A with then-prime minister Rishi Sunak, which aired on 12 February, was a “serious” breach of its rules, and that attempts to adhere to them were “wholly insufficient”.
In a hearing on Thursday, lawyers for the broadcaster said that the regulator had acted unlawfully by finding that the breach was “serious and repeated”, and asked a judge to pause Ofcom’s “sanctions process”, pending it getting the green light to challenge the watchdog’s decision.
Mr Justice Chamberlain will rule on whether GB News can challenge the decision, and whether Ofcom should be blocked from handing down its sanction in the meantime.
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Tom Hickman KC, for the channel, said: “We say that by launching an investigation within three days, Ofcom failed to provide GB News a reasonable and fair opportunity to comply with [Ofcom’s rules].”
He continued: “It is well arguable that there is nothing that suggests Ofcom had any due regard to the impact of commencing an investigation or fully appreciated that it was possible at all for GB News to comply with [the rules].”
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The programme at the centre of the case, titled People’s Forum: The Prime Minister, saw Sunak answer questions from a studio audience and a presenter.
Hickman said in written submissions that the presenter “made clear” that it was the channel’s intention to hold a similar interview with the Labour leader, Sir Keir Starmer, but this did not take place.
Three days after the show aired, Ofcom told GB News that it was investigating the programme over a possible breach of its rules. It then publicised the investigation on 19 February.
In a statement on its website on 20 May, Ofcom said that it believed the programme “broke broadcasting due impartiality rules” and that it was “starting the process for consideration of a statutory sanction” against GB News.
The regulator said it received 547 complaints about the hour-long programme and that it found that the programme had not “challenged [Sunak] or otherwise referred to significant alternative views”, and that GB News should have “taken additional steps” to ensure impartiality.
Ofcom can apply a range of sanctions to broadcasters that breach its code, including fines, directions not to repeat content or to broadcast a correction, and suspending licences.
The sanction for the GB News breach has not yet been published, but Ofcom provided a “preliminary view” to the channel in June this year.
Hickman said in written submissions that Ofcom pledged last month not to publish the sanction before Thursday’s hearing and that publishing it would cause “irreparable damage” to the channel’s reputation.
But Anya Proops KC, for Ofcom, said in written submissions that the breach was the channel’s twelfth since March last year and that it was “not arguable” that it had “erred in law” through its decision.
She continued that the bid to stop Ofcom from publishing the sanction was based on an “inevitably speculative presumption” of what the sanction would be, and that claims the channel would suffer reputational harm “do not withstand scrutiny”.
She said: “Enabling a broadcaster to pause Ofcom’s enforcement actions by challenging the underlying breach decision would have a seriously detrimental impact on Ofcom’s ability to discharge its statutory functions, and by extension on the weighty public interests served by the discharge of those functions.
“Even if publication of a sanction decision would cause some measure of harm to GB News, that harm is inevitably outweighed by the powerful countervailing public interest in ensuring the effective and timely regulation of broadcasters by Ofcom, and, relatedly, the maintenance of public confidence in such regulation.”
Mr Justice Chamberlain said he will hand down his judgment at 12pm on Friday.
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