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The shock jock and Ofcom

A legal challenge to an Ofcom ruling against the radio station Talksport is now being heard in the Administrative Court. The challenge is being brought by Jon Gaunt, the presenter of the radio show that had been found by Ofcom to be in breach of the Broadcasting Code. He is claiming that in finding a breach, the broadcast regulator failed to respect his right to freedom of expression.

In the challenged ruling, Ofcom described Gaunt as ‘well known for his combative and hard-hitting style with participants.’ On the programme, broadcast on Talksport, he interviewed a councillor about a policy that foster carers have to be non-smokers. During the course of an emotive interview, Gaunt referred to the councillor as a ‘Nazi’ and ‘ignorant pig.’

Following a number of complaints, Ofcom found the broadcast to be in breach of accepted standards of broadcasters and that the offensive content was not justified by the content:

the offensive language used to describe Mr Stark, 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 of this programme, despite listeners being accustomed to a robust level of debate from this particular presenter.

From the reports of the hearing yesterday, it sounds like Gaunt’s lawyers are emphasising that the exchange concerned political speech – after all it was an interview with a councillor on a policy matter. The criticism is likely to be that the Ofcom ruling is an interference with the content of a political discussion. The jurisprudence on freedom of expression under the European Convention has often stressed that political speech deserves strong protection, that politicians should tolerate a greater degree of criticism, and that the freedom to speak allows exaggeration and provocative messages.

Whatever you think of Ofcom’s ruling, the legal challenge does face some difficulties. First, the European Court of Human Rights has on a number of occasions upheld restrictions on such expression and stressed that the mass media in particular has ‘duties and responsibilities.’ So the fact it is on national radio station does not help the claim. Gaunt’s lawyer Gavin Millar QC has criticised some recent European Court of Human Rights decisions for failing to provide robust protection  to political speech (see [2009] European Human Rights Law Review 277). The case gives him the chance to see whether these arguments will have greater influence in the domestic courts. I am doubtful, as the courts here have also stressed the responsibilities of the media, especially broadcasters. The House of Lords in Prolife Alliance has also upheld restrictions on political speech on televisions which prevent the audience being offended by the broadcast.

A further difficulty facing Gaunt is that the courts have traditionally been unwilling to interfere with the decisions of the media regulators, giving some leeway to their assessment of the case.

Much will depend on the facts of the case, and the courts may move in a new direction. But from the perspective of precedent, the challenge looks like a long shot. In any event, we will find out soon.

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Categories: Media
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  1. July 14, 2010 at 11:19 am

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