This article appears in the July/August edition of the Royal Television Society magazine ‘Television’.

A newly appointed boss is addressing journalists gathered in the newsroom. They only know him as an outspoken TV presenter with strong links to their government. He tells them: ‘the time of detached, unbiased journalism is over. Objectivity is a myth forced upon us. Editorial policy will be based on the love of our country’.

When a journalist in his audience tries to differentiate between ‘country’ and ‘government’, his new boss tells him with more than a hint of menace : ‘Let me give you some advice. If you are planning any subversive activities I can tell you now that goes right against my plan’.

Such is the state of the world that you can imagine this happening in many countries, including, extraordinarily, the USA. The least surprising explanation is that this scene was made in Moscow, shot by a journalist on his phone in 2013 and now part of a documentary ‘Our New President’ which had its UK premiere at the Sheffield Doc/Fest this year.

Dmitry Kiselyov took up his new role when Vladimir Putin merged the Kremlin’s news agency and radio station into a company called Rossiya Segodnya, which translates as ‘Russia Today’. Its sister news organisation is the other Russia Today, the TV news channel now known as ‘RT’, and they share an editor-in-chief, Margarita Simonyan.

So what does a British regulator make of a TV channel which transmits across the UK being openly owned by the same state that, according to the British Prime Minister, poisoned Sergei Skripal and his daughter Yulia in Salisbury. And how does ‘objectivity is a myth’ fit with the British requirement for ‘due impartiality and due accuracy’. The answers, based on the past few months, are that these are particularly difficult areas for Ofcom to navigate.

On 13th March when Theresa May gave Vladimir Putin until midnight to explain how the former spy was poisoned, Ofcom said ‘should the UK investigating authorities determine that there was an unlawful use of force by the Russian State against the UK, we would consider this relevant to our ongoing duty to be satisfied that RT is fit and proper’ to hold its Ofcom broadcasting licence. The UK Government did subsequently decide that there was ‘an unlawful use of force’ by Russia but a month later Ofcom had gone decidedly cool on linking a state’s actions with its ownership of an Ofcom licence .

‘It would be inappropriate for Ofcom always to place decisive weight’ on any act which a  state committed. It was ‘not possible or appropriate for us to seek to reach an independent determination on the events in Salisbury’. Instead Ofcom preferred to consider RT’s ‘broadcasting conduct’, was ‘intensively’ monitoring RT’s output and as it happened seven new investigations into due impartiality were ready to begin. ‘Since the events in Salisbury we have observed a significant increase in the number of programmes on the RT service that warrant investigation’, said Ofcom.  Another three investigations were started the next month, making a total of eleven standards cases if you include one started last year about the use on air of allegedly fake tweets. This case has been found too be a breach of Ofcom’s code.

What Ofcom has done about Salisbury is to get out of the row about who did what to whom and focus instead on what RT broadcast about it. The Ofcom statement had one particularly curious line about TV Novosti, the Russian Federation-owned company which holds RT’s licence; ‘Until recently, TV Novosti’s overall compliance record had not been materially out of line with other broadcasters’. My own examination of the available data on cases of due impartiality, due accuracy and related offences shows that RT had ten breaches recorded against it since 2010, more than twice as many as any other broadcaster. Quite why Ofcom would frame the comparison with other broadcasters on ‘overall compliance’, including adherence to non-editorial regulation such as advertising minutes, is unclear. Its own figures show that ‘the majority of the breaches, and both of the more serious breaches, were in programming relating to Russia’s foreign policy and related to the requirement for due impartiality. The breaches related to programmes about Libya (2011, 2012), Syria (2012, 2013 and 2014), Ukraine (2014), Turkey (2016) and NATO (2016)’.

The regulatory requirement goes back to the 1954 Television Act which set up ITV. Section 3 (c) tasked the then regulator, the ITA, with ensuring that ‘any news given in the programmes (in whatever form) is presented with due accuracy and impartiality’. When asked what due impartiality meant, the Government of the day replied that it was whatever the regulator deemed it to be. The rule was later extended to the BBC  and Channel Four. Downing Street papers released in 2016 show that back in 1990 the Prime Minister’s Political Secretary, John Whittingdale, told Margaret Thatcher that they had ‘consistently abused’ the impartiality requirements. 

As it has turned out the broadcasters who have found ‘due impartiality’ a useful wedge are those from outside the UK, such as Fox News and RT, bringing a very particular point of view into the country. 

The limitations and qualifications which Ofcom has to take into account when enforcing ‘due impartiality’ were listed by the Competition and Markets Authority in the context of its review of the proposed acquisition of Sky by 21st Century Fox. The CMA concluded that  ‘broadcasters are, to some extent, able to adapt their own approach to the presentation of news and current affairs more generally’.

The considerations which create this situation include recognising the importance of freedom of expression, taking account of the context of the broadcast and ‘the expectation of the audience’. As the Ofcom executive responsible for enforcing impartiality for two and a half years I was sometimes heard to mutter that ‘audience expectation’ was another way of saying  ‘what else would viewers expect from a right-wing American TV station or one owned by the Kremlin’.

Ofcom says it will make the outcome of its investigations public as soon as possible. The process which the RT cases are going through is carefully observed by Ofcom’s legal team, led by the redoubtable General Counsel, Polly Weitzman, who has been at Ofcom since its creation. If breaches are recorded against RT/Novosti the Ofcom lawyers will highlight the importance of precedent and past performance in determining if a sanction is appropriate and what that sanction should be. 

In 2012 Ofcom revoked the licence of the Iranian news channel Press TV which as a result was no longer able to broadcast in the UK. The state-funded broadcaster’s English language service had breached several rules over editorial control and had refused to pay a fine. It seemed that Tehran, which claimed “a clear example of censorship” by ‘the media arm of the Royal Family’, rather enjoyed the fight and continued distributing its output online. The broadcasting battles between Britain and Iran continue to this day with the BBC World recently deploring Tehran’s apparent “targeted attack” on BBC Persian staff by freezing their assets.

Could it just be that in 2018 that it might suit RT’s owners in Moscow to be able to accuse Britain of censorship and retaliate in some way against the BBC. Which brings us back to the sayings of Kremlin news boss Dmitry Kiselyov. When in 2016 the BBC’s Moscow Correspondent Steve Rosenberg asked Kiselyov if he was the Kremlin’s chief propagandist he replied ‘If I make propaganda, then you make it too. But if you’re not doing propaganda, if you’re just doing your job, that applies to me too. We’re doing the same thing, we’re colleagues’.

So if ‘tit-for-tat’ or ‘colleague for colleague’ would be the likely retaliation for any Ofcom sanction which directly impacts on RT’s transmissions, perhaps a large fine would be the most appropriate outcome in all the circumstances.