GB News has won a judicial review against Ofcom after a judge ruled the regulator made an “error of law” when deciding the broadcaster had breached due impartiality rules.
Two Ofcom decisions that went against GB News have been quashed by a High Court judge and the regulator will now reconsider them with a narrower remit.
Ofcom has said it wants to consult on changing the Broadcasting Code to ban politicians from presenting news in any type of programme.
The judicial review related to two programmes presented by then-Conservative MP Jacob Rees-Mogg.
On 9 May 2023, Rees-Mogg read out breaking news on his State of the Nation programme about the verdict in a civil trial against Donald Trump, which found he had sexually abused writer E Jean Carroll and later defamed her on social media site Truth Social.
Then on 13 June 2023, Rees-Mogg gave an update on an ongoing news story, the fatal stabbing of three people in Nottingham, by interviewing GB News home and security correspondent Mark White who was live on the scene.
Ofcom ruled last year that both of these programmes, along with three others presented by fellow Conservative MPs Esther McVey and Philip Davies, broke due impartiality rules as there was no “exceptional justification” for the politicians to act in a newsreader or reporter role.
However Mrs Justice Collins Rice has ruled that Ofcom’s analysis of the Broadcasting Code “goes too far and produces results a long way outside the regulatory imperative”.
Rule 5.1 of the Broadcasting Code states: “News, in whatever form, must be reported with due accuracy and presented with due impartiality.”
Rule 5.3 further states: “No politician may be used as a newsreader, interviewer or reporter in any news programmes unless, exceptionally, it is editorially justified. In that case, the political allegiance of that person must be made clear to the audience.”
Mrs Justice Collins Rice pointed out that rule 5.3 refers only to “any news programmes” and said the Rees-Mogg broadcasts were “instantly and intuitively recognisable as a current affairs programme rather than a news programme, albeit one including, or consecutive to, a news bulletin”.
She therefore said Ofcom erred by applying rule 5.3 in its decision-making process. The regulator can now re-assess the programmes using only 5.1, which the judge noted contains “no exceptional editorial justification test… it simply requires a fully contextual assessment applying the test of due impartiality”.
However it was agreed by both sides during the judicial review that “no issue of content partiality” arose on either Rees-Mogg programme.
Ofcom has since the launch of GB News with its model of politicians presenting many of its programmes attempted to explain when this is allowed and when it is not.
It has said that serving politicians “cannot be a newsreader, interviewer or reporter in any news programme” but that they are allowed to present on other shows, including current affairs.
Former group director for broadcasting and online content Kevin Bakhurst attempted to explain the difference: that programmes may be classified as news if they include features such as a newsreader presenting directly to the audience, a running order or list of stories, often in short packages, the use of reporters or correspondents to deliver packages or live reports, or a mixture of video and reporter items.
Meanwhile he said a current affairs programme may be more long-form and contain “extensive discussion, analysis or interviews with guests”.
However Mrs Justice Collins Rice said Ofcom’s decision-making process in the cases under review were “not straightforwardly easy to reconcile with this guidance at all”.
She noted: “…it is not disputed that, as a politician, Mr Rees-Mogg could present a current affairs
programme. But he could not present a news programme. So how could a programme
be both at once, if he could present one but not the other?”
Ofcom has said it will not appeal the judgment but that it wants to update the Broadcasting Code.
A spokesperson said: “We accept the court’s guidance on this important aspect of due impartiality in broadcast news and the clarity set out in its judgment.
“We will now review and consult on proposed changes to the Broadcasting Code to restrict politicians from presenting news in any type of programme to ensure this is clear for all broadcasters.”
Ofcom fined GB News £100,000 in October over “serious and repeated” breaches of the due impartiality section of the Broadcasting Code but said this penalty would not be enforced until the judicial review was decided.
GB News CEO: Victory ‘hugely significant for entire industry’
GB News chief executive Angelos Frangopoulos described it as a “landmark decision” that “vindicates GB News’ position as the fearless defender of free speech in the United Kingdom.
“Our court victory is hugely significant for the entire British broadcasting industry.”
Ian Weinstein, a partner at Brown Rudnick who represented GB News in the case, said: “This is a clear and comprehensive victory for GB News. The Court found that the two breach decisions that Ofcom made against GB News were unlawful. The ‘novel’ interpretation of the rules that Ofcom sought to apply was inconsistent with what the rules actually say – in the words of the judge, Ofcom’s analysis “does violence to the wording”.
“This case is significant for the media regulatory landscape. It deals directly with the much publicised issue of how Ofcom should regulate the use of politicians as presenters, as well as the approach that should be taken to interpreting Ofcom’s ‘due impartiality’ rules more generally. These are issues that affect many broadcasters, not just GB News.
“It is notoriously difficult for claimants to succeed in a judicial review challenge against a regulator. The fact that GB News was successful is testament to the strength of its case.”
Ofcom has been ordered to pay GB News’ legal costs. The broadcaster’s latest financial accounts, also published on Friday, show it more than doubled its revenues in the year to 31 May 2024 to £15.8m but its losses since launch now top £100m.
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