RT loses High Court challenge against Ofcom over £200,000 fine for impartiality breaches

RT has lost a High Court battle against Ofcom and its decision to fine the Russian broadcaster £200,000 over seven impartiality breaches in 2018.

Ofcom found that RT had “failed to preserve due impartiality” in seven news and current affairs programmes over a six-week period between 17 March and 26 April 2018.

The programmes in breach were two editions of Sputnik, presented by ex-MP George Galloway, addressing the poisoning of former Russian spy Sergei Skripal in Salisbury, three editions of Crosstalk and a news programme, all concerning the US Government’s role in Syria.

A further news programme concerning the Ukrainian Government’s position on Roma gypsies and Nazism was also in breach of the code.

RT challenged Ofcom’s decision on the breaches and sanction with a claim for judicial review at the High Court, arguing it was a “disproportionate interference” with its right to freedom of expression.

It claimed Ofcom had “failed to take account of various contextual matters including the ‘dominant media narrative’” across other channels broadcasting in the UK.

It said that at the time of its Sputnik programmes on the Salisbury poisoning the dominant narrative was the UK Government’s perspective that the Russian state had been involved, meaning RT did not need to repeat this viewpoint.

RT also said Ofcom had failed to take account of the content of its other broadcasts, adding that the regulator had not complained that any of the sanctioned programmes were inaccurate and that the sanction was, in any event, disproportionate.

But Ofcom told the court it had not taken into account certain wider contextual factors put forward by RT because they were not relevant and “would serve to undermine the legislative objectives which the due impartiality regime is designed to safeguard”.

The regulator also said it was not in a position to assess the accuracy of the claims, but said this “made the requirement of due impartiality more and not less important”.

In a judgment handed down on Friday, Lord Justice Dingemans said Ofcom is not required by the Communications Act 2003 to take into account the output of other channels and the overall media narrative when assessing whether a programme is duly impartial.

The judge found that RT’s other programming did not form a “clearly linked” series with those under sanction and therefore were not relevant to Ofcom’s decision, which he said was made correctly.

The judge said “there could be no assurance… that a particular viewer would be aware of what the dominant media narrative was, or would see other ‘balancing’ material from the broadcaster (to which, necessarily for this purpose, their attention had not been drawn), or that the viewer would not otherwise be drawn into an ‘echo chamber’ of output which reinforced or reflected their pre-existing views”.

He added: “It would be difficult, if not impossible, for broadcasters to discern in advance, precisely what the dominant media narrative was, and what could be broadcast, consistent with the requirements of the legislation and the [Broadcasting] Code. Compliance would in those circumstances be a matter of luck rather than judgment.”

Lord Justice Dingemans said Ofcom’s decision was compatible with RT’s freedom of expression rights, emphasising that the broadcaster was not prevented from saying anything it had wanted to.

“There was no requirement to give the necessary balance by broadcasting a form of words, this was all left to the editorial judgment of RT, so long as ‘due impartiality’ was observed,” he said.

The judge also dismissed RT’s claim that its news programme on the issues in the Ukraine had been impartial because it included the Ukrainian state’s perspective.

Finally, Lord Justice Dingemans ruled the £200,000 sanction was proportionate because RT’s broadcasts posed “actual and potential harm”.

“This is because there will have been viewers of the relevant broadcast, unknowable in number, who were not exposed to the other viewpoint or dominant media narrative or other broadcasts from RT in which the alternative viewpoint was given,” he said.

“There will be viewers who might have some idea of the dominant media narrative but who do not consider it when watching the relevant broadcast, and so are denied the opportunity to assess the good from the bad.”

An Ofcom spokesperson welcomed the High Court’s decision that its “investigation and decisions were fair and proportionate”.

“Trust in news and current affairs has never been more important, and RT’s failures to preserve due impartiality were serious and repeated.”

An RT spokesperson said the broadcaster intends to appeal the judgement.

Read the High Court judgement here.

Picture: Reuters/Gleb Garanich