On 28 February 2025, the High Court handed down a judgment in favour of GB News in its judicial review claim against Ofcom, quashing two decisions of Ofcom that GB News' use of Sir Jacob Rees-Mogg, an active politician and an MP at the relevant times, as presenter in a programme containing news content breached the Broadcasting Code.
Background to the claim
In March 2024, Ofcom, the broadcast regulator, found that two editions of GB News' programme Jacob Rees-Mogg's State of the Nation presented by Sir Jacob Rees-Mogg from May and June 2023 breached its Broadcasting Code, which governs the content of TV and radio broadcasts under the Communications Act 2003. Ofcom held that:
- Sir Rees-Mogg qualified as a newsreader when, on one occasion, he interrupted the programme to read out a 53 second autocue summary of breaking news and, on another, engaged in a 3.5 minute exchange with a correspondent about a piece of breaking news, thereby breaching Rule 5.3, which prohibits politicians from acting as newsreaders, interviewers, or reporters in news programmes.
- The presentation of broadcast news by a politician breached the requirement for news to be presented with "due impartiality and due accuracy", as prescribed by Rule 5.1.
Points of dispute
GB News challenged these decisions by way of judicial review on three grounds, contending that Ofcom:
- Misapplied the above rules, erring in law.
- Breached Article 10 of the European Convention of Human Rights enshrining the right to freedom of expression subject to restrictions prescribed by law, which binds Ofcom as a public authority.
- Erred in law in expanding the scope of its investigation from a breach of Rule 5.3 to considering a breach of Rule 5.1 without advance notice and explanation to GB News.
Outcome
The court found that Ofcom erred in its interpretation of the Broadcasting Code, holding that:
- (a) Rule 5.3 of the Broadcasting Code applies only to "news programmes", and not to any programme containing news content, thereby making a legal distinction between "news programmes" and "current affairs programmes".
- (b) The presence of a politician in a programme containing news content does not inherently breach Rule 5.1 of the Broadcasting Code, which requires news to be presented with due impartiality. Its application requires a full contextual analysis rather than a presumption of partiality.
- In relation to the challenge on Article 10 grounds, the judge stated that if she was right about the meaning of Rule 5, then the meaning Ofcom sought to enforce in its decisions was not one prescribed by law at all.
- The lack of clarity in Ofcom's interpretations of Rule 5 flowed through to a certain lack of clarity in its communications with GB News about the same. However, as GB News never claimed substantial procedural unfairness, the court limited its observations on the matter.
Ofcom's decisions were therefore quashed and remitted to the regulator for reconsideration.
Analysis
The judgment highlights the ever-fluctuating balance between regulatory objectives and freedom of expression, particularly in the evolving media landscape. The court's decision further underscores the necessity for Ofcom to conduct contextual analysis on a case-by-case basis when issuing decisions and clarifies that, in the interests of legal certainty, regulators are discouraged from taking on quasi-legislative roles in interpreting their own standards.
On 13 March 2025, Ofcom withdrew all of its remaining impartiality investigations into politicians' broadcasts, including three other decisions against GB News.