Ofcom’s unprecedented announcement (18 April 2018) that it is opening seven new due impartiality investigations into the RT (formerly Russia Today) channel in the wake of the Sergei and Yulia Skripal poisoning raises several fascinating legal and compliance questions. There has been much high profile criticism of RT recently, accusing it of being a Kremlin propaganda channel and pumping out ‘fake news’. But as Ofcom itself pointed out in its statement, until recently RT’s compliance record was no worse than that of other broadcasters with Ofcom licences financed by foreign states. RT’s licence is held by ANO TV Novosti, which is funded by the Russian Federation.
So what has changed? Answer: the UK government’s announcement that Russia was behind the Skripal attack, which has had huge international ramifications. Ofcom clearly started an intensive monitoring operation of RT’s output after the Salisbury poisoning to see how the channel was covering the story, and plainly found actionable material.
Some in the UK television compliance community believe Ofcom’s action against RT is long overdue. But the regulator clearly knows it is stepping into a legal minefield, revolving round the troublesome but crucial issue of who is a ‘fit and proper’ person to hold an Ofcom licence – and when Ofcom might use this legal provision to take a licence away (and in doing so someone’s freedom to broadcast). It is a crucial issue because no one can obtain – and keep – an Ofcom broadcasting licence unless they are a ‘fit and proper’ person (see section 3(3) of both the 1990 and 1996 Broadcasting Acts).
The 18 April Ofcom statement is important because it sets out much more clearly than ever before its approach to revoking a licence on the grounds that the broadcaster is no longer ‘fit and proper’. In summary Ofcom says ‘the central consideration is whether they can be expected to be a responsible broadcaster’. In reaching a view on this, Ofcom will look at both the broadcast compliance record of the channel, and non-broadcasting conduct. Ofcom confirms importantly that ‘the threshold for finding a broadcaster not fit and proper to hold a broadcast licence is…high.’ What is also significant is that the regulator explains for the first time how it will consider serious, repeated or ongoing breaches of standards as evidence of a lack of fitness and properness.
This new approach raises some potentially serious issues about freedom of expression for British broadcasters holding Ofcom licences. In future, if they breach the Code several times by making controversial programmes, will they now face a ‘fit and proper’ investigation by the regulator? Will there be a chilling effect on their output as a result?
In the short term, the key question however is: How many of the seven RT investigations will result in a Code breach? No one knows. Least of all Ofcom, which has yet to receive RT’s defences to the seven investigations, and will be only too aware (one hopes) that it must not pre-judge the outcome of these cases.
SM&B’s Louis Charalambous previously acted for the London-based Kurdish “Med TV” channel when it was suspended by Ofcom’s predecessor over breaches of the broadcasting code relating to due impartiality and the broadcast of material likely to encourage or incite crime or lead to disorder.