In May this year, Ofcom launched a consultation on a proposal to amend its own Broadcasting Code on impartiality. That code is derived from Ofcom’s statutory duty, enshrined in the 2003 Communications Act, to ensure that “news included in television and radio services is presented with due impartiality”.
The purpose of its proposed amendment, it said, was to “restrict politicians from presenting news in any type of television or radio programme”. Ofcom had believed that this restriction already applied, but lost a High Court case brought by GB News in 2024 when the court determined that the rule applies only to politicians presenting news in “news programmes”. Ofcom, therefore, proposed to clarify its code to ensure that “no politician may be used as a newsreader, news interviewer or news reporter in any type of programme unless, exceptionally, it is editorially justified”.
On the face of it, this looked like Ofcom closing a loophole – being exploited by GB News systematically to break longstanding impartiality rules – which would ensure that the spirit of the original legislation would be followed. In fact, exactly the opposite appears to be true: Ofcom’s plan is now to set in stone an arbitrary distinction between “news” programmes and “current affairs” programmes that would place no restrictions on politicians presenting the latter. Its consultation states explicitly that, outside of news programmes, “there is no Ofcom rule that prevents a politician from hosting or appearing on a television or radio programme… This means that politicians are allowed to present current affairs programmes such as audience phone-ins and discussion programmes”.
The absurdity of Ofcom’s logic has been laid bare by content analysis carried out by Stewart Purvis and Chris Banatvala. Purvis was editor, then chief executive of ITN for 15 years before becoming Ofcom partner for content and standards in 2007. Banatvala was Ofcom’s founding director of standards during the 2000s and was responsible for drafting its first Broadcasting Code. These are very senior former executives in news and regulation who should be taken very seriously.
In order to assess whether a meaningful distinction can be made between news and current affairs on 24-hour news channels – and whether the proposed rule change makes any sense in practice – they monitored GB News’s weekday output from June 9-13 between 18:00 and 23:00. Apart from a brief news bulletin at the top of the hour, these consisted of discussion and interview programmes on multiple topics.
In total, they found that 42 different subjects were covered during those programmes, of which 39 were news events of the day – that is, news stories that had originated in that morning’s newspapers or had been generated that day by GB News itself. In other words, the content on GB News during its peak viewing hours is overwhelmingly “news”, by any reasonable definition.
They separated out those programmes presented by politicians, which fell into two categories: live programmes presented by politicians dealing with news stories of the day, and pre-recorded programmes that might have dealt with news from that week but made no specific attempt to do so.
In the first category they monitored Farage, presented by the eponymous Reform UK leader, which was transmitted three times that week, and Jacob Rees-Mogg’s State of the Nation, which was transmitted four times. During interviews for those programmes, 16 different subjects were covered, all of which were about news events of the day or news stories originating from that morning’s newspapers. As just two examples, Farage interviewed the Israeli ambassador on the day that the British government announced sanctions against two Israeli ministers, and interviewed the chief minister of Gibraltar when the British deal with Spain was announced.
Towards the end of their submission, Purvis and Banatvala summarise their evidence with a damning reflection on the overall partisan nature of GB News programming: “It is of note that on GB News during this review period, there was no sitting Labour legislators (in either the House of Commons or Lords) presenting a programme in peak time or any presenters who could be described as from the “left” of politics.” In fact, it appears that since GB News has been on air there has been no sitting parliamentarians from parties other than the DUP, Conservative and Reform UK presenting programmes. Those presenting while sitting in Parliament have been Sir Jacob Rees-Mogg, Esther McVey, Philip Davies, Nigel Farage, Lee Anderson, Baroness Arlene Foster, Dehenna Davison.”
As many commentators, including ourselves, have repeatedly argued, the whole issue of news vs current affairs on a “news” channel is rendered moot by section 320 of the Communications Act, which makes clear that special impartiality requirements apply to all programmes dealing with “matters of political or industrial controversy” and “matters relating to current public policy”. There is some flexibility for news stations or channels that clearly demonstrate even-handedness over their schedule – such as LBC, where right-of-centre presenters such as Nick Ferrari and Iain Dale are countered by more progressive figures such as James O’Brien and Lewis Goodall. As the Purvis/Banatvala list above graphically demonstrates, GB News makes no attempt at being non-partisan.
Given that the law could not be clearer, why is Ofcom muddying the waters? Its arguments are grounded in two different but equally disingenuous approaches: freedom of expression, and audience research.
Freedom of expression
In its consultation document, Ofcom makes much of its statutory duty to protect freedom of expression, citing both the 2003 Communications Act and Article 10 of the European Convention of Human Rights (ECHR). Both are important considerations, but neither provides legitimate grounds for Ofcom to prioritise freedom of expression over due impartiality.
Article 10(2) of the ECHR states that one of the grounds for restricting the right to freedom of expression is to protect the rights of others; while case law of the European Court of Human Rights (ECtHR) has long established that interference with the right to freedom of expression may be justifiable if it is “necessary in a democratic society”. Two cases that have gone to court in the UK show how these grounds can be invoked in the case of GB News, for its programme strategy in general as well as for the specific issue of politicians fronting news and current affairs programmes.
The first, ironically, involved Ofcom as the defendant, when Russia Today (RT) challenged the regulator’s decision in 2020 to fine it for various breaches of impartiality. RT claimed that its Article 10 rights had been infringed. Its case was rejected by the High Court, and we have written up the details in a previous article on these pages (BJR 34(2)), but it is worth repeating the judgment of Lord Justice Dingemans because it stands as a ringing endorsement of the democratic case for an impartiality regime:
“Permitting a provider of television services to avoid the requirement of ‘due impartiality’, even for one programme, would severely harm the quality of political discourse in this country and in doing so seriously harm the ‘rights of others’ in article 10(2) because individual viewers will not be exposed to the contrasting views necessary to assist the viewer to take a full role in the modern democratic state.”
The second arose from the Communication Act’s ban on broadcast political advertising. In this case, the Broadcasting Advertising Clearance Centre refused to approve for broadcasting an advertisement by Animal Defenders International that attempted to highlight cruelty to chimpanzees. The decision was upheld both by the House of Lords in 2008 and the ECtHR in 2013. While Ofcom was not involved in this particular case, it will certainly be familiar with it since it is cited in the consultation document and also numerous times in its decision to fine TalkRadio £75,000 for two episodes of the George Galloway programme broadcast in 2018.
As Lord Bingham noted in the Lords judgment, the fundamental rationale of the democratic process is that competing views, opinions and policies should be publicly debated and exposed to public scrutiny. But this requires that debate is, as far as possible, conducted on a level playing field. He argued that “this is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated”.
In announcing its sanction against Talksport in 2018, Ofcom not only quoted Bingham’s judgment, but explicitly referenced the importance of impartiality requirements in protecting free speech:
“In other words, a central purpose of the due impartiality requirements is that those subjected to the particularly potent and pervasive influence of broadcast media should be left in a position to make their own minds up on matters of important public interest, having been exposed to a plurality of views. In this way, both protections on free speech, and the requirements of impartiality that may (to an extent) restrict free speech, derive from the same fundamental concern: the need to safeguard the integrity of public discussion and thereby the democratic process.”
Despite the clear standing of the law, Ofcom has shown no sign of understanding that impartiality and freedom of speech are entirely compatible. Senior executives have taken every opportunity – in front of Commons and Lords select committees, in broadcast interviews, in letters to the press – to stress their own interpretation of Ofcom’s statutory duty that somehow obliges it to prioritise freedom of expression.
Ofcom’s attitude here appears to have its roots in the launch of GB News, which was accompanied by a call to arms by Mark Stoleson, then the chief executive of GB News-funder Legatum. In terms reminiscent of Trump’s attacks on the “woke”, mainstream media, he explained the need for GB News because “the big media corporations [are] still displaying an intolerance for the views of Brits who live beyond the M25”. Freedom of speech was at risk, he said, because “an increasingly loud, intolerant minority are trying to cancel the views of people they disagree with”. This has become a common refrain on the right of British politics, though more recently the left have protested in similar terms about reporting and expressing opinions on Israel’s actions in Gaza. In either case, the clear message from the courts is that our impartiality regime enables, rather than hinders, a plurality of views.
Audience research
Ofcom’s second approach to justifying its proposal was rooted in audience research, with frequent references throughout its document to research it had commissioned, carried out by Ipsos. In justifying its recommendation that politicians should be permitted to present current affairs programmes, Ofcom stated: “We have taken into account the lack of consensus for doing so that was revealed by our research, including having regard to the potential advantages of politicians presenting current affairs that were cited by participants. In particular, we note the concerns about undue interference with the right to freedom of expression.”
Unfortunately, Ofcom’s conclusions were undermined by a research design that was wholly inappropriate for drawing generalised conclusions. This was a qualitative audience research exercise involving 29 focus groups that was designed, according to the original report’s authors, to “understand the nuances in participant perspectives and the reasons why individual participants held their views”. While qualitative research is perfectly legitimate for in-depth investigations into audience attitudes, it is completely inappropriate to extrapolate from a small, hand-picked sample to the population as a whole.
This basic error, which would shame any first-year social science undergraduate, was compounded by the actual demographic breakdown of the 157 respondents who made up those 29 focus groups, as explained in detail in the Ipsos research report. Eleven of those 29 groups consisted of audiences of channels on which politicians present current affairs programmes (GB News, LBC, Talk TV and Times Radio). A majority of the participants in these groups described themselves as right-leaning. There were four groups comprising GB News viewers alone.
Nearly a quarter of those 157 respondents – 38 in all – had been recruited because they “frequently watched” AND “had a favourable view” of GB News or Talk TV. Frequent viewers of those channels are a small minority of the UK population, and certainly do not constitute a quarter of all viewers. It is standard research practice to test hypotheses raised in qualitative work through quantitative surveys involving a representative sample of the whole population. That Ofcom failed so conspicuously to follow basic audience research protocols raises serious questions about its intentions.
One further problem with the research methods adds to suspicions about its actual purpose. According to the Ipsos report, respondents were asked specifically at the end of their group discussion to reflect on how impartiality “should … be balanced against freedom of expression”. There were a number of other lines of questioning that might have been equally important as context for this proposed rule change, such as the dangers of misinformation or the dangers of undermining trust in television. This particular line of questioning and its subsequent emphasis by Ofcom speaks more to Ofcom’s own priorities than that of the audience.
It was no surprise to read Ofcom’s contortions in presenting its own research. Despite having concluded from its focus groups that “audiences may sometimes have difficulty distinguishing news and current affairs”, it felt no compunction in announcing that participants “balanced concerns about a potential lack of due impartiality against the importance of freedom of expression. Many were clear that viewers and listeners should be entitled to receive information and ideas via a range of different programmes or formats and reach judgements for themselves”. Ofcom’s foreword to the report repeated the same mantra about “having full regard to broadcasters’ and audiences’ right to freedom of expression” when dealing with complaints about politicians presenting current affairs programmes.
Conclusion
Broadcast news still commands enormous trust from UK citizens, a reputation built on decades of institutional and regulatory commitment to professionalism and impartiality. For many, despite (and indeed because of) the proliferation of online and social media news sources, it stands as a bulwark against the burgeoning volume of mis- and disinformation in an increasingly polarised world. New partisan channels, in particular GB News, have demonstrated a contempt for balance in their approach to news and current affairs that risks undermining that trust. It requires a strong regulatory response, not weak attempts at post-hoc justification that draw on flawed conceptions of freedom of expression and use inappropriate research techniques followed by disingenuous interpretations of qualitative data.
It may be that audience views have shifted and that there is now greater willingness across all demographics to embrace partisan television news channels. It may be that Parliament, after proper deliberation, might want to relax an impartiality regime that is now more than 20 years old, despite the manifold dangers of doing so. But for Ofcom to employ spurious research techniques to pursue its own agenda is a betrayal of its statutory duty to “further the interests of citizens” and is deeply unhealthy for our democracy. If Ofcom wishes to relax the rules on impartiality for licensed broadcast services, it should make that recommendation explicit and seek parliamentary approval. It should not be seeking to amend longstanding legislation through the regulatory back door.