Offensive and insulting speech on the radio

As predicted, the High Court rejected Jon Gaunt’s claim that Ofcom’s finding against TalkSport violated his right to freedom of expression. The decision has attracted some criticism, for example Roy Greenslade makes the point that no one was forced to listen to the broadcast and that the audience who heard it ‘made a choice and should live with it.’

While audience expectations are relevant, I don’t think it is quite that simple. If the issue were resolved by asking if the audience chose to listen, that would take us to a broader question of whether we should have stricter standards on radio at all (as no one is ever compelled to listen to the radio). This, however, was not the issue for the court. No challenge was made to the broadcasting standards. Instead the claim was against the application of those standards to TalkSport. The question for the court was whether Ofcom’s finding of a breach of its Code (the provisions on offensive content) ‘fulfilled a pressing social need and constituted a proportionate interference with the claimant’s freedom of expression.’

In rejecting Gaunt’s argument, the court stated that:

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.

The court then found that the radio show host’s description of a councillor as a ‘Nazi’ and an ‘ignorant pig’ ‘was gratuitous, having no factual content or justification.’ It then concluded that Ofcom’s finding:

constituted no material interference with the claimant’s freedom of expression at all. An inhibition from broadcasting shouted abuse which expresses no content does not inhibit, and should not deter, heated and even offensive dialogue which retains a degree of relevant content.

The conclusions in the judgement are stated briefly. The conclusion that there was ‘no material interference’ seems odd – surely the question is whether the interference with the right is necessary under Article 10(2) of the Convention (rather than denying any interference at all). I am also surprised by the general statement that freedom of expression does not extend to  gratuitous offensive insult or abuse.  A finding in Ofcom’s favour needn’t rest on such a sweeping statement. Surely, the context of the expression is relevant – that is, it took place on the mass media, where speakers do have additional responsibilities and where expression rights tend to be justified by the interests of the audience. For that reason, controls on some mass media speakers may be permitted, even though such controls would not be imposed on people generally (ie individuals are not under a general duty not to cause offense). The court could have limited their finding to statements made by a broadcaster in that context, rather than making the general statement.

Another important issue in the case was that Ofcom’s finding was against the radio station TalkSport (who accepted the ruling) and not against the presenter Jon Gaunt (who brought the claim). This raises the question of whether Gaunt had standing to bring a claim under the Human Rights Act (this was simply accepted in the judgement and not discussed further). This also goes to the question of proportionality – what had Gaunt suffered? No fine or other sanction was imposed, it was just a finding that the radio station was in breach – something of a slap on the wrists (and on the station’s wrists rather than Gaunt’s). So in relation to this particular issue, the question of whether there was interference with the claimant’s rights (and on the nature of that interference) is relevant. Many of the classic free speech cases are by contrast concerned with criminal law sanctions (or defamation/privacy in civil law), in which the speaker has far more to lose.

While my feelings about the case are not so strong, I did have some concerns that a finding in Gaunt’s favour might lead to the courts being used to chip away at the media regulations. That said, the issue is likely to go to appeal, so I doubt we have heard the last.