The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being foster parents, criticising the interviewee (author of the ban) as a Health Nazi, and otherwise insulting him. It was gratuitously offensive. The claimant, despite a later apology, was dismissed.
Held: The request for review failed. OFCOM’s conclusion was justified. The 2003 Act placed on OFCOM a duty 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’, and to draw up a Code of practice for this purpose. The Code applied ‘generally accepted standards’.
The claimant’s comments degenerated into mere abuse without political content, and was highly offensive. ‘The subject of the interview was political and controversial and the person interviewed was an elected politician who would expect to receive and tolerate a rough ride. The expressions complained of were not essentially statements of fact, but expressions of value or opinion. It was therefore an interview where the claimant’s freedom of expression should be accorded a high degree of protection and that was capable of extending to offensive expression.
His freedom of expression may not however extend to gratuitous offensive insult or abuse, nor, we think, to repeated abusive shouting which serves to express no real content. We take gratuitously offensive insult or abuse to comprise offensive insult or abuse which has no contextual content or justification.’
Judges:
Blair J P
Citations:
[2010] EWHC 1756 (QB), [2011] ACD 17, [2010] HRLR 31, [2011] 1 WLR 663
Links:
Statutes:
Broadcasting Act 1990 6(1)(a), Communications Act 2003 3(2)(e), European Convention on Human Rights 10, Human Rights Act 1998 6
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Scharsach and News Verlagsgesellschaft v Austria ECHR 13-Nov-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10 ; Pecuniary damage – financial award (second applicant) ; Non-pecuniary damage – financial award (first applicant) ; Non-pecuniary damage – . .
Cited – Lingens v Austria ECHR 8-Jul-1986
Freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, . .
Cited – McLellan v Bracknell Forest Borough Council; Reigate Borough Council v Benfield and Another CA 16-Oct-2001
The tenant was issued with a notice to quit for unpaid rent, within the first year, during an ‘introductory tenancy.’ She sought judicial review on the basis that the reduced security of tenure infringed her human rights.
Held: Review was . .
Cited – Oberschlick v Austria ECHR 23-May-1991
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of . .
Cited – Secretary of State for the Home Department v Nasseri HL 6-May-2009
The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be . .
Cited – Otto-Preminger-Institut v Austria ECHR 20-Sep-1994
Balance of Religious Tolerance and Freedom
The Institut operated a cinema. It announced a showing of a film ‘Das Liebenconzil’. Proceedings were brought against it, on complaint by the Roman Catholic Church, in which it was accused of ‘disparaging religious doctrine’. The film was seized . .
Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – De Haes and Gijsels v Belgium ECHR 24-Feb-1997
The court emphasised that the press plays an essential role in a democratic society. The court trenchantly observed ‘It is incumbent on the press to impart information and ideas of public interest. Not only does the press have the task of imparting . .
Cited – Lindon, Otchakovsky-Laurens and July v France ECHR 22-Oct-2007
ECHR (Grand Chamber) The court emphasised the public interest in protecting the reputation of those in public life. Regardless of the forcefulness of political struggles, it is legitimate to try to ensure that . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Gorelishvili v Georgia ECHR 5-Jun-2007
. .
Cited – Janowski v Poland ECHR 21-Jan-1999
Hudoc Reports of Judgments and Decisions 1999-I . .
Cited – Redmond-Bate v Director of Public Prosecutions Admn 23-Jul-1999
The police had arrested three peaceful but vociferous preachers when some members of a crowd gathered round them threatened hostility.
Held: Freedom of speech means nothing unless it includes the freedom to be irritating, contentious, . .
Cited – Livingstone v The Adjudication Panel for England Admn 19-Oct-2006
The claimant challenged a finding that as Mayor of London offensive remarks he had made to a journalist as he was pursued leaving a private party had brought his office into disrepute.
Held: The appeal succeeded. Though the remarks may have . .
Cited – Lopes Gomes Da Silva v Portugal ECHR 28-Sep-2000
The court distinguished between expressions of polemical political opinion and gratuitous personal attacks with no factual basis. . .
Cited – Monnat v Switzerland ECHR 21-Sep-2006
. .
Cited – Malisiewicz-Gasior v Poland ECHR 6-Apr-2006
. .
Cited – Dichand And Others v Austria ECHR 26-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses partial award – Convention . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Murphy v Ireland ECHR 10-Jul-2003
A pastor attached to an evangelical protestant centre based in Dublin wished to broadcast an advertisement during the week before Easter 1995, but the broadcast was stopped by the Independent Radio and Television Commission because section 10(3) of . .
Cited by:
Appeal from – Gaunt, Regina (on The Application of) v The Office of Communications CA 24-Jan-2011
The applicant sought leave to appeal against a finding that his radio talk show interview with a councillor regarding the policy of not permitting foster parents who smoked was so vehement as to be a breach of the respondent’s Code. The divisional . .
Appeal from – Gaunt, Regina (on The Application of) v The Office of Communications CA 17-Jun-2011
The claimant appealed against rejection of his challenge to a determination of the respondent that a radio interview he conducted had been in breach of the Broadcasting Code. He said that the finding was an undue interference in his freedom of . .
Lists of cited by and citing cases may be incomplete.
Media, Human Rights
Updated: 06 February 2022; Ref: scu.420706