It is the first time in its history that Ofcom has lost a judicial review on an issue of content regulation. Even more painful for the regulator was that victory went to the broadcaster with a problematic compliance record, GB News, which it has warned about its future conduct. I’ve given my views on the significance of the case to the podcast ‘Roger Bolton’s Beebwatch’ but I also set them out here.

When regulators are challenged in the High Court the assumption is that judges will not want to intervene unless they are convinced there has been a mistake. In her 117 paragraph judgement in GB News Limited v The Office of Communications Mrs Justice Collins Rice spelt out how Ofcom had indeed made mistakes. She explained why she upheld the legal challenge by GB News and decided that Ofcom’s rulings that two GB News broadcasts in 2023 breached the code on ‘due impartiality and due accuracy in news’ were unlawful.

GB News said ‘Our court victory is hugely significant for the entire British broadcasting industry’. I agree but there could be unintended consequences they didn’t plan for.

Here’s my guide to what the case was about and what the implications are.

1.What was the specific issue?

Let’s start in June 2021, GB News went on the air with presenters putting their personal political views followed up by guests who mostly but not unanimously agreed with them. Some of us asked ‘is that allowed’ ? Ofcom said there was no problem.

March 2023. Conservative MPs began to present GB News programmes. More of us asked ‘is that allowed’? Ofcom explained that politicians can’t present ‘news programmes’ but they can present ‘current affairs programmes’. 

May and June 2023. On two occasions during Jacob Rees-Mogg’s programmes there was breaking news. On one Rees-Mogg read the result of a court case in America involving Donald Trump, on another he did a live interview with a reporter in Nottingham after the murders of two students and a local man.

For the few minutes that he was handling breaking news had Rees-Mogg become the presenter of a news programme -something which isn’t allowed – or was it simply a  news item in a ‘current affairs’ programme that he was allowed to present? 

March 2024. Ofcom recorded two breaches of the code on due impartiality. ‘Ofcom considered that the programmes in question were both news and current affairs programmes. Programmes can feature a mix of news and non-news content and move between the two. However, if a licensee chooses to use a politician as a presenter, it must take steps to ensure they do not act as a newsreader, news interviewer or news reporter’.

GB News said see you in court. 

2. What did the judge think?

Here’s how Mrs Justice Collins Rice summarised Ofcom’s view: ‘Programmes could feature a mix of news and non-news content and move between the two’. But here’s what she thought: ‘A programme cannot be a news programme and a current affairs programme at the same time’. 

The Judge also contrasted the Ofcom view that a programme can be both news and current affairs with Ofcom’s requirement for the two genres to be treated completely separately in the quotas for public service broadcasters. Having it both ways was ‘a proposition which on the face of it appears to place the coherence of the statutory scheme under some strain’. 

I think that’s judicial code for ‘sort this out please’. 

As part of this sorting out a whole breed of ‘hybrid’ programmes, from Channel Four News to BBC Newsnight and rolling news programmes on news channels, will have to be regulated as either news or current affairs in the UK and on the international channels which Ofcom also regulates. So if the daytime rolling news hours on GB News are judged to be ‘news’ can the presenters continue to be quite so opinionated?

3. How did this situation come about ?

Ofcom only has itself to blame for this mess. When it conjured up the ‘news v current affairs’ divide to justify what GB News was transmitting it does not seem to have properly considered the wider implications. Take, for example, Section 320 of the Communications Act of 2003 when Parliament decided it wanted due impartiality not just in news or current affairs, however you define them , but in all ’matters of political or industrial controversy’  and ‘matters relating to current public policy’. How is that consistent with the output of a channel where all the prime time presenters express views from the political right with none from the centre or left? 

4. So what happens next? 

An Ofcom statement after the judgement 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.’ 

Since then it has also announced that it has withdrawn ‘the three other breach decisions against GB News’. Ofcom also removed all these decisions from GB News’s compliance record.

Ofcom now has to decide the terms of reference for its consultation.There will be a temptation for them to confine the consultation to the relatively narrow issue of what should happen when there is breaking news during ‘current affairs’ programmes presented by politicians. The judge did some drafting for Ofcom during her judgement and while the case has been underway GB News has handed over to the newsroom to avoid political presenters handling breaking news.

Limiting the issue for consultation in this way would mean missing an important opportunity to review a much broader and significant issue. It is also one in which there is a significant public interest: do we want more or less opinionated news programming on regulated television in the UK? That should be at the heart of the consultation. 

Mrs Justice Collins Rice has done a forensic review of Ofcom’s current impartiality regime and identified flaws which ‘place the coherence of the statutory scheme under some strain’. The consultation therefore needs to go back to the start of the road that led to the High Court and learn from the lessons of the past five years. What did Parliament mean by ‘news’? Did it intend there could be opinionated presenters of programmes reporting the news of the day? The outcome of this consultation will define due impartiality for the decade ahead until the planned switch-off of terrestrial TV inevitably triggers a compete overhaul of ‘broadcast’ regulation.

There will be debate about the meaning of statute and the translation into regulation. But Ofcom also has to ask itself some uncomfortable questions about its failure to enforce the Broadcasting Code when the meaning is crystal clear. Section 5.9 says ‘presenters must not use the advantage of regular appearances to promote their views in a way that compromises the requirement for due impartiality’. How can Ofcom claim that a daily primetime programme called ‘Farage’ is not providing the leader of a political party with regular appearances to promote his views?

There is much that this consultation should consider.