Does "due impartiality" mean something weaker for GB News?
A letter before action to OFCOM sets out the argument why Dame Melanie Dawes, OFCOM's CEO, has got this wrong
NB: as I am acting for Julian Petley, the proposed Claimant (instructed by Good Law Project), I am not going to comment beyond briefly setting out the context and linking to the letter: nor am I going to respond to any comments anyone makes.
The letter is here.
In the UK, any broadcaster licensed by OFCOM (the statutory regulator) has a duty of “due impartiality”: those duties are set out in sections 319 and 320 of the Communications Act 2003, and in OFCOM’s statutory Broadcasting Code - you will see the details in the letter.
That duty applies in relation to news and current affairs programming (though is stronger for news, for example specifically precluding news being read by a politician). It applies (essentially) to matters of political controversy.
In previous cases, one of which resulted in a judicial review leading to the TV-Novosti judgment referred to in the letter, OFCOM have enforced this requirement against small foreign-controlled channels, such as Russia Today (now closed down). In TV-Novosti the Court of Appeal had to decide how to balance this requirement against the right to free expression protected by Article 10: essentially, the Court of Appeal accepted that the public interest in broadcast news and current affairs being impartial justified a strong impartiality rule. Put another way, the right to free expression of views does not rule out denying the possibility of using a broadcasting platform to put out one-sided news and current affairs coverage of politically controversial issues: the right to free speech is not the right to a megaphone.
The question of how these principles apply to GB News has generated a lot of controversy and considerable criticism of OFCOM. The particular issue that lay behind this letter was a recent interview with Dame Melanie Dawes, the CEO of OFCOM, in which she suggested (when asked about GB News) that the “due impartiality” requirement was lower for broadcasters with smaller audiences and higher for ones that presented themselves as “public service broadcasters” (the relevant passage is set out in the letter and there is a link to the interview itself). The letter sets out various legal arguments that arise if that claim now reflects OFCOM policy.
"the right to free speech is not the right to a megaphone"
It seems to me that this is a fundamentally flawed analogy. A megaphone broadcasts a message to everyone within earshot, including passers-by who may have no interest in what's being said but cannot avoid hearing it without going out of their way to avoid it. That's very different from a situation where people have to make a deliberate choice in order to hear it.