Gaunt v Ofcom (with Liberty Intervening)  EWCA (Civ) 692
Case date: 17/06/2011
Court: Court of Appeal
Area/s of law: Other
Barrister/s: David Glen
The radio presenter, Jon Gaunt, appealed the earlier decision of the Divisional Court that his rights of freedom of expression had not been infringed by Ofcom’s decision that Talksport had breached the Broadcasting Code by broadcasting Mr Gaunt’s interview with a Mr Stark, a local councillor.
The interview in question was about Redbridge Council’s decision not to place children in care with foster parents who smoked. In the course of the interview, which descended into a “slanging match” and ended up being “completely out of control”, Mr Gaunt called Mr Stark a “Nazi” and an “ignorant pig”. Ofcom had found that Talksport had breached paragraphs 2.1 and 2.3 of the Broadcasting Code, which requires that programmes meet “generally accepted standards”, including protecting consumers from unwarranted offensive and harmful material. Paragraph 2.3 of the Code provides that broadcasters must ensure that material which may cause offence is justified by the context.
As before the Divisional Court, the Claimant did not argue that the Code, (or the Communications Act 2003 which provides for it), breached his Convention rights. However, Mr Gaunt argued that the finding was a breach of his Article 10 rights because it was a disproportionate interference and did not meet a pressing social need.
The Applicable Law
The Court of Appeal emphasised that the freedom of expression, encompassing the right to say what one wants and how one wants, was the “lifeblood of democracy”. This right, now enshrined in Article 10 ECHR, was not just “a purely cosy” right, as the “freedom to only speak inoffensively is not worth having”. Those freedoms however also carried responsibilities, which necessitated certain restrictions. As television and radio audiences had an especially close relationship with broadcasters into their home, particular standards for those forms of media could be justified.
The Court of Appeal set out the following principles, derived from Strasbourg jurisprudence, which should be applied where an applicant contended that his Article 10 rights had been unlawfully infringed  – :
The need for a restriction on freedom of expression must be established convincingly – Janowski v Poland
(1999) 29 EHRR 705.
The question for the court to consider is whether the interference with the Article 10 rights was proportionate to the legitimate aim pursued - Ibid
In deciding these issues a margin of appreciation should be given to national authorities - Ibid
When determining whether a national tribunal went beyond this margin of appreciation, the severity of the sanction imposed was potentially relevant - Janowski v Poland and Malisiewicz-Gasior v Poland
(2007) 45 EHRR 21.
When deciding whether any interference with freedom of expression falls foul of Article 10, the court will have particular regard to the words used, the content in which they were made public and the case as a whole – Fuentes Bobo v Spain
(2001) 31 EHRR 50.
The latitude which should be accorded to someone who insults another in public is greater if the insulting words are used in the context of “an open discussion of matters of public concern” or in the context of freedom of the press than if the words are used by a private individual - Janowski v Poland
There is a distinction to be drawn between harsh words which constitute a gratuitous personal attack and those which form part of a political debate - Malisiewicz-Gasior v Poland
(2007) 45 EHRR 21 and Gorelishivili v Georgia (2009) EHRR 36.
The court should also consider as a relevant factor that in a live broadcast there was no possibility of reformulating, perfecting or retracting the statement prior to publication - Fuentes Bobo v Spain
At least in the context of religious opinions and beliefs it was legitimate to include an obligation to avoid as far as possible expressions that are gratuitously offensive to others and which do not contribute to any form of public debate capable of furthering progress in human affairs – Gunduz v Turkey (2005) 41 EHRR 5.
The Court of Appeal endorsed the approach of the Divisional Court in determining, upon an application for judicial review, whether the applicant’s rights had been infringed. The court’s task was to decide for itself whether the Ofcom finding disproportionately infringed Mr Gaunt’s Article 10 right to freedom of expression, and in doing so, the court must have due regard to the judgment of the statutory regulator who proceeded on correct legal principles – R (SB) v Governors of Denbigh High School  1 AC 100 and Belfast City Council v Miss Behavin’ Ltd  1 WLR 1420 applied. Considering whether the Ofcom finding was a permissible interference with Mr Gaunt’s Article 10 rights demanded rigorous scrutiny by the court – R v Shayler  UKHL 11 applied.
The Court of Appeal dismissed Mr Gaunt’s appeal in a judgment given by the Master of the Rolls, Lord Neuberger.
The court accepted that the interview was on a subject of general public interest, namely whether to exclude smokers from fostering childen, that the interview was a live discussion which was not pre-recorded, and that Mr Gaunt, who was well known for his “hard-hitting and robust” approach, was interviewing a politician who made no subsequent complaint. Lord Neuberger also stated that it would be inappropriate to focus excessively on individual aspects of the broadcast which collectively had resulted in Ofcom’s finding, for example Mr Gaunt’s specific insults such as “health Nazi” and “ignorant pig”, his persistent interruptions, or his hectoring tone and bullying manner. The fact that the interview was permitted to continue for many minutes after it had got out of hand was also a relevant factor to be considered.
Assessing these factors, the Court of Appeal rejected Mr Gaunt’s appeal. The public interest aspect of the interview was of limited importance when set in the context of the actual contents of the interview. Similarly, although it was a live broadcast, Mr Gaunt was an experienced interviewer and the interview could have been stopped by the producers once it had become clear that Mr Gaunt had lost control. Ofcom had therefore been right to conclude that there was a breach of the Code.
The court recognised that it had to have due regard to the decision of the statutory regulator in determining the appeal, although its significance in this case was rendered unnecessary as the conclusion of the Court of Appeal was the same as that reached by Ofcom. The court ruled that it was “impossible to contend that Ofcom’s reaction even got near being disproportionate” and that the publication the “very careful and balanced Finding” was the right course to have taken . Consequently, there had been no unlawful interference with Mr Gaunt’s Article 10 rights and his appeal was dismissed. The Master of the Rolls emphasised, however, that the fact that Ofcom reached the same conclusion was a powerful supporting factor, and it would have caused him “anxiously to reconsider” if his view had been different to that of Ofcom.
David Glen instructed by Ofcom Legal Department on behalf of the Respondent.