Exceptional state conduct calls for exceptional Ofcom legal action

21st March 2022

With unprecedented speed the UK media regulator moved last week to revoke the two British licences of the Russian international broadcaster RT. Ofcom stripped RT of the licences with immediate effect because it said the entity holding them ANO TV-Novosti was no longer a ‘fit and proper person’ to do so. SMB consultant and former Ofcom executive, Trevor Barnes (who oversaw various investigations of RT while at the regulator) looks at the novel reasoning behind Ofcom’s decision and what it means for future ‘fit and proper’ investigations into UK broadcasters.

Ofcom’s move will have little immediate effect because the European Union introduced a ban on RT broadcasts a few days after Russia invaded Ukraine. Almost straightaway RT services were removed from the satellite which broadcast them across Europe, including Britain. Ofcom however was concerned that this is a temporary measure and – in theory at least – RT could start broadcasting to UK audiences again at any time.

This is just one important point Ofcom makes in its exceptional and creatively reasoned legal decision justifying the revocation. Few journalists will probably read its 59 paragraphs and twelve pages in detail but if so they will miss out on some fascinating insights. It appears for example that UK lawyers were refusing to represent RT because the service told Ofcom that “we insist that it would be far more appropriate to conduct the review of our broadcast licence when RT has access to legal representation in the UK.”

Media lawyers should review the decision in full because it demonstrates the way Ofcom has deployed in an unprecedented way the statutory requirement that the holder of a broadcasting licence must remain a ‘fit and proper person’ (s3(3) of the 1990 and 1996 Broadcasting Acts). Over the years Ofcom has carried out a number of ‘fit and proper’ investigations into licensees. The advantage for the regulator is that the provision hands the regulator a lot of discretion and that, if enquiries produce credible evidence against the licensee (for example links with terrorism), a licence can be revoked immediately.

Sometimes these investigations in retrospect may appear a little over zealous – like when in 2012 Ofcom concluded that BSkyB remained a ‘fit and proper’ company to hold a broadcasting licence after investigating the broadcaster in the wake of the phone-hacking scandal that engulfed Rupert Murdoch’s media empire. More recently Ofcom seems to have started some ‘fit and proper’ investigations after particular broadcasters showed content which potentially but seriously breached the Broadcasting Code, rather than simply investigating them in the normal way.

Such investigations are sometimes misguided in my view. The latest RT decision helpfully confirms that to revoke a licence on the basis that the holder is no longer a ‘fit and proper person’ is a high hurdle to jump over.

Ofcom had in fact started a gargantuan total of 29 investigations into RT reporting of the Russian invasion of Ukraine – which RT persisted for example in describing as a ‘special operation’, parroting the official Kremlin line. I watched some of this output at home and in my opinion, it clearly breached the due impartiality rules in the Broadcasting Code. But following this process was clearly going to take too long – and take up an immense amount of Ofcom resources. Ofcom, therefore, decided to launch a ‘fit and proper’ investigation against a very expedited timetable in parallel with the standards investigations.

The test for a ‘fit and proper person’ to continue to hold a licence, Ofcom helpfully confirms in the decision, is whether they can be trusted to be a ‘responsible broadcaster’. In deciding ANO TV-Novosti could no longer be such a broadcaster, the regulator was helped by what it described itself as the ‘exceptional’ current conduct (see para.30 of the Decision) of Russia, which was partly funding the licensee. In particular, Russia had launched a war of aggression against a neighbouring state and passed a new law which in effect criminalises independent journalism.

Ofcom is very aware however of other channels it licenses linked to other foreign states, which sometimes do not ‘accept and conduct themselves according to the UK and generally accepted international values.’ (See para. 29, Decision). It therefore very sensibly underlines that Ofcom should not always ‘place decisive weight on such matters in determining whether state-funded broadcasters were fit and proper to hold broadcast licences, independently of their broadcasting record.’ Plurality of channels and the right to freedom of expression are important principles to be respected.

Of course, RT still continues to distribute content in the UK online as I write. This in turn shifts the focus to the British Government’s revised version of the Online Safety Bill, its wide-ranging planned legislation to regulate the internet, published on 16 March. The amended Bill freights yet more duties on the regulator (Ofcom) and the regulated (social media companies). It is still far from clear however how the tech companies will be expected to deal with ‘harmful but lawful’ content which might be found on a service like RT news online. Will RT news online benefit from some form of exemption for ‘journalism’? How high a priority will such content be for Ofcom to regulate? Watch this space carefully in the weeks and months ahead…