GAUNT v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano
1. The applicant, Mr Jon Gaunt, is a British national, who was born in 1961 and lives in Leamington. He was represented by Mr K. O’Rourke of Howe & Co Solicitors, a lawyer practising in Brentford. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was a presenter with Talksport, a speech-based radio station. He presented a programme which covered a range of news issues and he was well-known for his “combative and hard-hitting” style with interviewees. 5. On 7 November 2008 the applicant conducted a live interview with M.S., the Cabinet Member for Children’s Services for Redbridge London Borough Council. The interview concerned the council’s proposal to ban smokers from becoming foster parents on the ground that passive smoking could harm foster children. The applicant had spent some of his childhood in the care system and on the morning of the interview an article written by him on the subject was published in The Sun newspaper. The article was headlined “Fags didn’t stop my foster mum caring for me”. The following extract is relevant to the present proceedings: “Tonight in Britain more than 60,000 children won’t have a special person to tuck them in at night, read them a story or take an interest in what happened during their day at school. Meanwhile, the zealots who dreamed up this policy will sleep easy on their futons because they are putting the ‘health needs’ of kids in care first. This is the same warped logic that condemns black children to a life in care rather than let them be fostered by white couples. The same master race philosophy that forbids fat couples from adopting. The SS – that is social services by the way – think that the risk from passive smoking is more dangerous to a child than them being left to rot in a children’s home. They should understand that most parents realise the dangers and wouldn’t smoke in an enclosed space with children around. Foster parents are no different. The woman who rescued me from care, and undoubtedly turned me around as a child, smoked like a chimney but she was also a hospital matron. She lavished love, care and, most importantly, discipline on me. Without her I wouldn’t be where I am today... Today it’s Redbridge but, unless we all make a noise now, tomorrow it will be a national policy and thousands more children will fall victim to the health and safety Nazis and be left alone in a care home.” 6. Prior to the applicant’s interview with M.S., he was warned by Talksport that the subject might be emotive for him. In fact, in the hours before the interview programming staff advised him on three occasions to remain calm and allow M.S. to put his point of view across. 7. The applicant’s radio interview with M.S. lasted just over ten minutes. In the proceedings which followed, the President of the Queen’s Bench Division summarised the interview in the terms set out below: “The first part of the interview was reasonably controlled, giving [M.S.] a reasonable opportunity to explain his council’s policy. The claimant then asked him about existing foster parents who only ever smoke in the open air. [M.S.] explained that the council would not drag children away from existing foster parents, but that such smokers would not be used in the future. The trouble was that such people do smoke in the house. Asked by the claimant how he knew this, [M.S.] explained that there were Redbridge councillors who say they never smoke in the building, but in fact do so. To which the claimant said ‘so you are a Nazi then?’ When [M.S.] began to protest, the claimant again said ‘no you are, you’re a Nazi’. [M.S.] protested vehemently that this was an offensive and insulting remark, and the interview then degenerated into an unseemly slanging match. When [M.S.] protested that the insult, as he saw it, was probably actionable, the claimant challenged him to ‘take action if you wish’, but then said ‘you’re a health Nazi’. The slanging match continued with the claimant asking [M.S.] if he wanted to carry on with the interview, and [M.S.] replying that he would love to if the claimant would just shut up for a minute. It emerged that the claimant had himself been in care. He referred to his column in The Sun that day and again called [M.S.] a ‘health Nazi’ and then ‘a Nazi’. The heated shouting continued with the claimant doing much of the talking. [M.S.] asked him just to shut up for a moment, and said in effect that the conditions of those in care were better than they had been. The claimant regarded this as an offensive insult to his own upbringing and called [M.S.] ‘you ignorant pig’. He later referred to him as a ‘health fascist’ and an ‘ignorant idiot’, and shortly after this he ended an interview that by then had got completely out of control. It is scarcely possible to convey the general and particular tone of this interview in a short written summary, and the full transcript is in this respect incomplete. You have to hear it for its full impact. As we have said, it degenerated into a shouting match from the point when the claimant first called [M.S.] ‘a Nazi’. That first insult was not said with particular vehemence, but ‘you ignorant pig’ was said with considerable venom and was we think gratuitously offensive. The interview as a whole can fairly be described as a rant.” 8. Within ten minutes of the end of the interview, the applicant apologised to the listeners, accepting that he did not “hold it together”, that he had been “unprofessional” and that he had “lost the rag”. One hour after the end of the broadcast, he made a further apology in the following terms: “The Councillor wants me to apologise for calling him a Nazi. I’m sorry for calling you a Nazi.” 9. The applicant was suspended from his programme by Talksport the same day and an internal investigation was launched. Talksport subsequently terminated his contract without notice by letter dated 17 November 2008. 10. Following the broadcast, Ofcom, the independent regulator and competition authority for the United Kingdom communications industries, received fifty-three complaints about the applicant’s conduct. Some of the complaints concerned the manner in which the interview had been conducted, as the complainants believed that it was an “unprovoked personal attack”, and that the applicant was “oppressive”, “intimidating”, and “shouting like a playground bully”. Other complainants were offended by the word “Nazi”. 11. Ofcom launched an investigation into the matter under the Broadcasting Code. In its response to Ofcom, Talksport stated that it regretted what had happened and accepted that the interview “fell way below the acceptable broadcasting standards which it expected and demanded”. It totally accepted and regretted that the applicant’s language had been offensive and that the manner in which the interview was conducted had been indefensible. 12. In a report published on 8 June 2009, Ofcom concluded that the broadcast had breached Rules 2.1 and 2.3 of the Broadcasting Code (see paragraph 30 below) as it fell short of the generally accepted standards applied to broadcast content and included offensive material which was not justified by the context. In reaching this conclusion, Ofcom took into account the right of broadcasters to hold opinions and impart information without interference; the fact that Talksport specialised in a genre of hardhitting talk radio which could at times prove uncomfortable and challenging listening; the fact that the broadcast of “offensive” material was not in itself a breach of Ofcom’s code as the Code did not prohibit the broadcasting of offensive material; the extremely aggressive tone of the applicant’s interview style on this occasion; and the seriousness which the broadcaster attached to the incident, as demonstrated by its prompt investigation and the applicant’s two on-air apologies. Nevertheless, it found that Talksport’s compliance procedures did not appear robust enough to deal with problematic material being broadcast live. Moreover: “the language used by Jon Gaunt, and the manner in which he treated [M.S.], had the potential to cause offence to many listeners” and “the offensive language used to describe [M.S.], and what would be considered to be a persistently bullying and hectoring approach taken by Jon Gaunt towards his guest, exceeded the expectations of the audience for this programme, despite listeners being accustomed to a robust level of debate from this particular presenter. Even taking into account the context of this programme such as the nature of the service, the audience expectations and the editorial content, Ofcom did not consider that this was sufficient justification for the offensive material. The broadcaster therefore failed to comply with generally accepted standards in breach of Rules 2.1 and 2.3 of the Code.” 13. No sanction or penalty was imposed either on Talksport or the applicant other than the publication of the decision. 14. The applicant was granted leave to judicially review Ofcom’s decision on the ground that it disproportionately interfered with his freedom of expression and infringed his rights under Article 10 of the Convention. Liberty intervened in the proceedings to support the applicant’s claim. 15. Although Ofcom’s decision was against the broadcaster, which had acknowledged that there had been a breach of the Code, the Divisional Court judge noted that the parties had (in his view, rightly) accepted that the applicant had standing to challenge it because it “enunciates an inhibition capable of affecting his unrestrained freedom to conduct radio interviews in the way in which he did on this occasion”. 16. As the applicant did not contend that the Broadcasting Code itself violated Article 10, the narrow question for the court to address was whether Ofcom’s findings had disproportionately interfered with the applicant’s rights under Article 10 of the Convention. The judge noted at the outset that the unchallenged statutory basis for Ofcom’s finding meant that it was prescribed by law and pursued the legitimate aim of the protection of others. With regard to the question of necessity, the judge accepted that as the broadcast was live the applicant had had no opportunity to edit or correct what he said once he had said it. Moreover, the subject of the interview was political and controversial and the person being interviewed was an elected politician who would expect to receive and tolerate a “rough ride”. It was therefore an interview where the applicant’s freedom of expression should be accorded a high degree of protection. Nevertheless, his freedom of expression did not extend to gratuitous, offensive insult or abuse without contextual content or justification. Applying these principles and giving due weight to Ofcom’s judgment, the judge considered that to call someone a “Nazi” was capable of being highly insulting. It accepted, however, that in the present case the first use of the word could have had some contextual justification, especially in light of the applicant’s use of it in his newspaper article, and could therefore be seen as an emphatic and pejorative assertion that M.S. was, in the matter of smoking and fostering children, one who imposes his views on others. Nevertheless, the court noted that after the applicant used the word, the interview degenerated and the applicant’s conduct of it became increasingly abusive, hectoring and out of control. His subsequent use of the word “Nazi” undoubtedly assumed the nature of undirected abuse and the expression “ignorant pig” was said “with such venom as to constitute gratuitous offensive abuse”. As a consequence the later part of the interview became abusive shouting which served to convey to listeners no real content at all. 17. The judge therefore concluded that, taking full account of the applicant’s Article 10 rights, Ofcom was justified in its conclusion. The broadcast was highly offensive to M.S and well capable of offending the broadcasting public. Moreover, its offensive and abusive nature was gratuitous, having no factual content or justification. As a consequence, the judge accepted that Ofcom’s finding constituted no material interference with the applicant’s freedom of expression at all. In this regard, he found it relevant, but not decisive, that no sanction or penalty was imposed on the broadcaster, let alone the applicant. 18. The applicant appealed to the Court of Appeal. With regard to the applicant’s standing, the court reiterated that it was “accepted that he had locus standi to [challenge Ofcom’s finding], unsurprisingly since it is obviously possible that the finding may have had an adverse impact on him and on his reputation as a journalist”. 19. The Court of Appeal accepted that there were a number of facts which supported the proposition that a tribunal should be slow to hold that what was said in an interview offended the provisions of paragraphs 2.1 and 2.3 of the Code: first, the interview in question was concerned with an issue of general public interest; secondly, the interview was a live discussion and was not pre-recorded; thirdly, the applicant was well known to be a hard-hitting and robust interviewer; and fourthly, the interviewee was a politician and he made no subsequent complaint. However, these factors did not mean that the interview could not be susceptible to a finding that it fell foul of paragraphs 2.1 and 2.3 of the Code. 20. In considering whether or not the interview offended paragraphs 2.1 and/or 2.3 the court considered it as a whole and in its context. It accepted that it would be wrong to focus too hard individually, let alone exclusively, on specific insults such as “health Nazi” and “ignorant pig”, the applicant’s hectoring tone and bullying manner, his persistent interruptions, his failure to let M.S. answer questions, or his treating one or more innocuous comments by M.S. as an insult. All those points had to be considered, together with the fact that the interview was permitted to run on for many minutes after it had become clear that it had got out of hand. 21. Nevertheless, the court concluded that the combination of the five concerns identified in the preceding paragraph rendered it impossible to accept that Ofcom’s finding, which contained no sanction other than the publication of the decision, represented an interference with the applicant’s rights under Article 10 of the Convention. Although the topic covered was of public interest, this point was of limited force in the context of an interview where the interviewee was not permitted to express his views or reasons. Moreover, while the interview was broadcast live, the applicant was not an inexperienced interviewee being provoked in the heat of the moment; rather, he was an experienced interviewer who had plainly decided to embark on a particularly aggressive assault on M.S. and his opinions. The fact that his style of interviewing was well known did not render the interview acceptable; nor did M.S.’s failure to complain. The court therefore concluded that Ofcom was right to find that Talksport had infringed paragraphs 2.1 and 2.3 of the Code. 22. Finally, with regard to the severity of the sanction, the court noted that Ofcom could have decided that the complaint had been resolved instead of finding that there had been a breach of the Code. However, it had rejected this option since this was not a case of inadvertent error, as Talksport had allowed the interview to continue for many minutes after it plainly got out of control, and there had been two previous findings against Talksport where producers had lost control of an interview or discussion. 23. That being said, having concluded that Ofcom rightly found that Talksport had infringed paragraphs 2.1 and 2.3 of the Code, the court found it impossible to contend that Ofcom’s decision to impose no other sanction than the publication of the report “even got near being disproportionate”. Furthermore, the court noted that from the point of view of the applicant, he had been dismissed before Ofcom’s finding was published and there was no suggestion that he had lost work or that his reputation as a journalist had been damaged. 24. The Court of Appeal therefore dismissed the applicant’s appeal. 25. The applicant applied for leave to appeal to the Supreme Court. The Supreme Court refused permission in a decision dated 1 November 2011, sent to the applicant under cover of a letter dated 2 November 2011. 26. Broadcasting standards are governed by the Communications Act 2003 (“the 2003 Act”), which requires them to be implemented, supervised and enforced by Ofcom. 27. Section 3(2)(e) of the 2003 Act places a duty on Ofcom to secure the application by all television and radio stations of standards that “provide adequate protection to members of the public from the inclusion of offensive and harmful material” in broadcast programmes. 28. Section 319 of the 2003 Act obliges Ofcom to set up a “standards code” for radio and television services which is “calculated to secure” the so-called “standards objectives”. These objectives include, at section 319(2)(f), that “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material”. Ofcom is also obliged by section 324 of the 2003 Act to “establish procedures for handling and resolution of complaints about the observance of [those] standards”. 29. This code, known as the Broadcasting Code (“the Code”), states in terms that it has been drafted in the light of the right to freedom of expression as expressed in Article 10 of the Convention, which encompasses a broadcaster’s right to disseminate, and an audience’s right to receive, creative material, information and ideas without interference, but subject to restrictions prescribed by law and necessary in a democratic society. 30. Paragraph 2.1 of the Code provides that generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive materials. Paragraph 2.3 of the Code states that, in applying generally accepted standards, broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language. 31. Section 111 of the Broadcasting Act 1996 precludes Ofcom from entertaining a complaint of unfair treatment unless made by the person affected or by a person authorised by him to make the complaint for him. 32. Pursuant to sections 109 – 111 of the Broadcasting Act 1990, where there has been a breach of the Code Ofcom could take a range of possible measures: publish its finding indicating that a breach of the Code has taken place; direct that the broadcaster transmits a correction or a statement of Ofcom’s finding; impose a financial penalty on the broadcaster; or shorten, suspend or revoke the broadcaster’s licence.