Many have touted today's ruling in the High Court against Ofcom as a "win" for free speech. The initial optics are, of course, great and the usual suspects are taking a victory lap...
Tom Harwood's former employer Guido Fawkes proclaimed:
GB News Victorious Against Two-Tier Ofcom
Fantastic! The enemy of my enemy is my friend and all that.
Unfortunately, after careful review of the actual decision in favor of GB News, I fear this will serve as a classic example of winning the battle but losing the war.
Why be such a debbie-downer? Well...
UPDATE: An Ofcom spokesperson says:
"We accept the Court's guidance on this important aspect of due impartiality in broadcast news and the clarity set out in its Judgment. We will now review and consult on proposed changes to the Broadcasting Code to restrict politicians from presenting news in any type of programme to ensure this is clear for all broadcasters."
Got that? This tremendous victory has now provided the rationale that will effectively bar politicians from presenting any television programs in the future – severely limiting GB News recruitment for their business model.
(Here, in one of the last free countries in the world, members of congress are prohibited by their own ethics rules to have outside employment. As a former senate staffer myself who tried unsuccessfully to gain a waiver to this rule during my transition to private employment, I nonetheless agree with it in general principle.)
The rationale in the UK, however, is not about outside earnings but about the inability of a politician to present "news" in an "impartial" way. As always in the UK of today, truth does not ever enter the equation.
The two cases involved Jacob Rees-Mogg's State of the Nation – a current affairs program that previously aired Monday to Thursday in Mark's old time slot (JRM had been recruited during Mark's convalescence) – and now airs just two days a week. At the time of airing, Jacob Rees-Mogg was a member of Parliament but has since lost his seat.
In the two benign examples, JRM had simply read breaking news (a court ruling re Trump) in one case and, on the other, tossed to a reporter re a local court verdict. Drunk on its unbridled power, Ofcom added these instances to other cases involving other presenter/ politicians at GB News. (Those cases are not subject to this order.)
According to The Honourable Mrs Justice Collins Rice DBE CB:
....the OFCOM analysis goes too far, and produces results a long way outside the regulatory imperative, and for which there is no plausibly contended justification. That is because of its attempted combination of the completely open-ended scope of news in whatever form with the conclusive politician-specific bar in Rule 5.3.
In the course of the hearing of this case, we looked at various reductio ad absurdum counterfactuals. I choose one of the less far-fetched: a politician presenting a broadcast music show, interrupting it to announce the sudden death of an international music star. The politician is plainly presenting news in whatever form. It is fanciful to regard the combination of politician and news in this context as presenting an acute – or any – prima facie risk to due impartiality.
The fully contextual approach of Rule 5.1 produces the right result here: one factoring in the content of the news and the context of the programme as well as the status of the politician. OFCOM's analysis produces a conclusive presumption of partiality with a reverse editorial burden to demonstrate exceptionality. There is no possible support for such an outcome on any interpretation of the Code or statute.
What does this mean?
Rule 5.3 is specific to presenters in a "news programme". As the judge ruled, "Rule 5.3 does not apply outside news programmes." So it is a correct but very, very narrow finding based on Ofcom's improper conflation of news programme and current affairs programme.
(Ofcom performed a similar improper conflation in Mark's case, albeit in a different section.)
Also, Ofcom added 5.1 related to "due impartiality" as a ground without following their own procedures – which the judge noted but said there was no point in going too far down that road as "the real issues are substantive".
However, this is where the judge goes very wrong and it is alarming...
Rule 5.1 does apply to the delivery of news in current affairs programmes.
Therefore, she decided to send it all back to Ofcom:
...to make fresh decisions about that on a full-context basis. In saying that much, I make clear that I am not deciding, indicating, or taking any view about any matter within the exercise of OFCOM's proper functions. And, of course, I take no view of the merits or the possible outcomes of any such investigations or reconsideration either way. It is not my place to do so.
If Rule 5.1 applies in current affairs programmes – (in 2022, Ofcom didn't even try to apply this rule to Mark...) - than the whole GB News model becomes too unwieldy to manage.
And, as the judge notes above she has no power to overturn what is "within the exercises of OFCOM'S proper functions".
RIP free speech in the land of Magna Carta.