Ofcom has issued a £100,000 fine, as well as an obligation to broadcast a statement of Ofcom’s findings on a date and in a form to be determined by Ofcom, in respect of a breach by GB News of Rules 5.11 and 5.12 of Ofcom’s Broadcasting Code (the Code).

Ofcom’s earlier decision (the Breach Decision, available here) contains details of the programme and the reasons why Ofcom held GB News to be in breach. In sum, GB News failed to preserve due impartiality, or to include a sufficiently wide range of significant views on major matters of public policy, in its programme People’s Forum – Rishi Sunak, in which Rishi Sunak was questioned by members of the audience, with no opportunity for the Labour party to provide its viewpoints, either in the same programme, or in a linked programme. This latest decision (the Sanction Decision) concerns Ofcom’s determination of the financial penalty, as well as discussion of the other sanctions available to Ofcom.

A sanction can only be imposed if a breach is serious, deliberate, repeated and/or reckless. Ofcom held that GB News’ breach was not committed deliberately or recklessly, so whether a sanction was appropriate turned on whether the breach was serious and/or repeated.

Ofcom highlighted the significant danger of breaches of the due impartiality obligations of the Code, noting the potential for viewers to be exposed to “narrow and one-sided programming on important policy and political matters.”[1]

Ofcom held that, as Rules 5.11 and 5.12 pertain to “matters of major political or industrial controversy and major matters relating to public policy,”[2] they require broadcasters to meet higher standards than Rule 5.5, containing the due impartiality obligations for non-major matters. Whilst Section 6 of the Code (applicable once Parliament has been dissolved) did not apply, the context of the programme’s broadcast was that a General Election would have to take place within the year, making it relevant for Ofcom’s consideration.

Whilst Ofcom acknowledged that GB News had taken steps to ensure a representative audience and authentic questioning, “compliance with the heightened special impartiality requirements of the Code is not a matter of aspiration but of broadcasting result.”[3] Ofcom’s view was that “relying on unsighted audience questions and the participation of an ‘impartial’ audience alone […] to provide alternative viewpoints such as to preserve due impartiality, was a very high-risk approach to compliance with the special impartiality requirements.”[4] Audience participation alone is not sufficient to negate the need for a platform for the views of other major political parties.

GB News argued that the programme should not have been judged on a standalone basis as it was intended to be part of a series, to be followed by an (unconfirmed) episode with Sir Keir Starmer. Ofcom’s view was that a broadcaster cannot rely upon the ‘hoped’ future participation of other political parties – if these are not confirmed then it is incumbent upon the broadcaster to satisfy its due impartiality obligations via other means, either within the programme or within another linked and timely programme.

The fact that GB News had been issued with breach decisions in respect of episodes of Saturday Morning with Esther and Phil and Martin Daubney within the preceding 11 months, both of which concerned Rules 5.11 and 5.12, meant that the breach was repeated.

The maximum penalty Ofcom could have imposed was £250,000 (based on GB News’ qualifying revenue). In arriving at its figure of £100,000, Ofcom stated that the fact the breach involved the Prime Minister, enabled to speak largely uncontested for a significant length of time, made the breach more serious. GB News’ relatively small audience share did not constitute a mitigating factor. Ofcom indicated that the steps that GB News had taken to ensure compliance (attempts to agree a subsequent programme featuring Sir Keir Starmer, using live questions from an independently-selected audience) were not sufficient and it was taking a “very high compliance risk without certainty.”[5]

As well as a financial penalty, Ofcom imposed the broadcasting of a statement of Ofcom’s findings, in order to communicate to the audience the ways in which the programme breached the Code, as well as to deter GB News and other broadcasters from future misconduct.

In terms of mitigating factors, Ofcom held that GB News’ cooperation with Ofcom during the investigation had been generally adequate. Whilst Ofcom discussed previous breach and sanctions cases, it highlighted that each case is assessed individually and, whilst the seriousness of the breach is one factor in determining an appropriate financial penalty figure, Ofcom also has to take into account the financial situation of the relevant licensee, and adjust accordingly.

Ofcom decided that revoking GB News’ TLCS licence would not be proportionate. Revocation of a broadcast licence is Ofcom’s “ultimate enforcement action”[6] and Ofcom did not consider it necessary in this instance in order to ensure GB News’ future compliance with the Code.

GB News has been the recipient of 12 breach decisions (alongside nine ‘no breach’ decisions). We do not know whether this breach in isolation is so serious that GB News would have been issued with a financial sanction had it been its first breach of Rules 5.11 and 5.12, though we note that the repetition was certainly a significant factor in Ofcom’s decision-making process.

Ofcom’s rhetoric acts as a warning to other licensed broadcasters, particularly those operating within the news/current affairs genre, that they must always be vigilant and pay particular attention to the context in which they choose to broadcast certain programmes, and any intended reliance upon a series of linked programmes in order to demonstrate compliance with the obligation to present a variety of opinions.

As GB News has applied for judicial review of the initial Breach Decision, the sanctions will not be enforced until the result of the judicial review has been determined.

References

[1] Paragraph 75.

[2] Paragraph 89.

[3] Paragraph 94.

[4] Paragraph 99.

[5] Paragraph 166.

[6] Paragraph 234.