Ofcom vs Free Speech

Martin Daubney (standing in for Laurence Fox)
GB News, 16 June 2023, 19:00

The above current affairs programme dealt with the topic of immigration and asylum policy, in particular in the context of controversy over small boats crossing the English Channel. The presenter, Martin Daubney, gave his own views on this topic and interviewed the leader of the Reform Party, Richard Tice.

Ofcom received a complaint about the programme.

We considered that immigration and asylum policy constituted a matter of major political controversy and a major matter relating to current public policy. When dealing with major matters, all Ofcom licensees must comply with the heightened special impartiality requirements in the Code. These rules require broadcasters to include and give due weight to an appropriately wide range of significant views.

We found that Mr Tice presented his position on a matter of major political controversy and a major matter of current public policy with insufficient challenge, and the limited alternative views presented were dismissed. The programme therefore did not include and give due weight to an appropriately wide range of significant views, as required by the Code.

The Licensee accepted that the content was not compliant with the heightened special impartiality requirements in the Code.

GB News failed to preserve due impartiality, in breach of Rules 5.11 and 5.12 of the Code.

Ofcom recognises that, in accordance with the right to freedom of expression, broadcasters have editorial freedom and can offer audiences innovative forms of discussion and debate ... However... in light of the likely similarity of the views of the participants in this programme on the major matter being discussed, the Licensee should have taken additional steps to ensure that due impartiality was preserved.

We expect GB News to take careful account of this Decision in its compliance of future programming.

Ofcom have released a statement about new TV censorship arrangements following Brexit. Ofcom writes:

Ofcom is today confirming changes to our Broadcasting Code and Code on the Scheduling of Television Advertising following consultation.  

The changes reflect new requirements on broadcasters under the revised  Audiovisual Media Services Regulation 2020 , and also take account of legislative changes following the end of the transition period for the UK's withdrawal from the European Union. 

In brief, we are amending:

• the definition of hate speech in Section Three (Crime, disorder, hatred and abuse) of the Broadcasting Code; 

• Section Nine (Commercial references on TV) of the Broadcasting Code, to reflect new product placement provisions; and 

• the Code on the Scheduling of Television Advertising (COSTA), to reflect advertising provisions under the European Convention on Transfrontier Television.

We are also making other minor and administrative updates to the Broadcasting Code.

Both the revised Broadcasting Code and the revised COSTA will take effect from 23:00, 31 December 2020, when the Brexit transition period ends.

In fact the definition of 'hate speech' is incredibly wide and seemingly covers many instances where 'hate' is currently totally acceptable, or even encouraged. Ofcom's definition is:

Meaning of "hate speech": all forms of expression which spread, incite, promote or justify hatred based on intolerance on the grounds of disability, ethnicity, social origin, sex, gender, gender reassignment, nationality, race, religion or belief, sexual orientation, colour, genetic features, language, political or any other opinion, membership of a national minority, property, birth or age.

Ofcom also details the legal aspects of the changes:

The UK statutory framework that shapes the regulation of UK television services is changing.

The Audiovisual Media Services Regulations came into force on 1 November 2020. The AVMS Regulations implement the revised Audiovisual Media Services Directive (AVMSD) into UK law. They amend Section 319 of the Communications Act 2003, which sets the standards objectives that underpin Ofcom's Broadcasting Code.

From 1 January 2021, the AVMS Directive itself and the country of origin principle will no longer apply as they did to UK television services that broadcast into the EU. However, the content rules set by the AVMSD prior to that date will still apply. This means both the rules that already existed, and the ones on which we have been consulting to implement the AVMSD, will still apply, and our rules which implemented the AVMSD will be interpreted as they were before.

In addition, the European Convention on Transfrontier Television (ECTT) framework will still apply and the legislation requires Ofcom to implement it. This means that services established in the UK and that broadcast to ECTT countries are required to comply with broadcast standards set out in the ECTT, which include those on the amount of advertising broadcasters can transmit and where this is scheduled.

On 24 November 2020, Ofcom published a consultation on proposals for amendments to the Broadcasting Code and COSTA resulting from the legislative changes. This statement sets out the amendments we are making in light of stakeholders' responses.