ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sir Anthony May PQBD and Blair J
Case No: CO/9919/2009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE ETHERTON
| HM The Queen on the application of Jon Gaunt
|- and -
|The Office of Communications
|- and -
David Anderson QC and David Glen (instructed by Ofcom Legal Department) for the Respondent
Ivan Hare (instructed by Liberty) for the Intervener made written submissions
Hearing date: 11 May 2011
Crown Copyright ©
Lord Neuberger MR:
The broadcasting of the interview
"3. The first part of the interview was reasonably controlled, giving Mr Stark a reasonable opportunity to explain his council's policy. [Mr Gaunt] then asked him about existing foster parents who only ever smoke in the open air. Mr Stark explained that Redbridge would not drag children away from existing foster parents, but that such smokers would not be used in the future. The trouble was that such people do smoke in the house. Asked by [Mr Gaunt] how he knew this, Mr Stark explained that there were Redbridge councillors who say they never smoke in the building, but in fact do so. To which [Mr Gaunt] said 'so you are a Nazi then?' When Mr Stark began to protest, [Mr Gaunt] again said 'no you are, you're a Nazi'. Mr Stark protested vehemently that this was an offensive and insulting remark, and the interview then degenerated into an unseemly slanging match. When Mr Stark protested that the insult, as he saw it, was probably actionable, [Mr Gaunt] challenged him to 'take action if you wish', but then said 'you're a health Nazi'. The slanging match continued with [Mr Gaunt] asking Mr Stark if he wanted to carry on with the interview, and Mr Stark replying that he would love to if [Mr Gaunt] would just shut up for a minute. It emerged that [Mr Gaunt] had himself been in care. He referred to his column in the Sun that day and again called Mr Stark a 'health Nazi' and then 'a Nazi'. The heated shouting continued with [Mr Gaunt] doing much of the talking. Mr Stark asked him just to shut up for a moment, and said in effect that the conditions of those in care were better than they had been. [Mr Gaunt] regarded this as an offensive insult to his own upbringing and called Mr Stark 'you ignorant pig'. He later referred to him as a 'health fascist' and an 'ignorant idiot', and shortly after this he ended an interview that by then had got completely out of control.
4. It is scarcely possible to convey the general and particular tone of this interview in a short written summary, and the full transcript is in this respect incomplete. You have to hear it for its full impact. As we have said, it degenerated into a shouting match from the point when [Mr Gaunt] first called Mr Stark 'a Nazi'. That first insult was not said with particular vehemence, but 'you ignorant pig' was said with considerable venom and was we think gratuitously offensive. The interview as a whole can fairly be described as a rant."
The legislative and regulatory background
"1. Everyone has the right to freedom of expression. This right shall include freedom to … receive and impart information and ideas without interference by public authority …. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or rights of others …. ."
The Ofcom Finding
"[F]rom the outset, not uncharacteristically, Jon Gaunt took an aggressive and hectoring tone with Michael Stark. As indicated above, such an approach may well not have been at odds with audience expectation for this programme or station. However, this tone sharpened as the interview progressed. Jon Gaunt gave little chance for his guest to answer his questions, and dismissed those answers he did give. Ofcom noted that this culminated with Jon Gaunt calling Michael Stark, at times, a 'Nazi' and an 'ignorant pig'. The overall tone of Jon Gaunt's interviewing style on this occasion was extremely aggressive and was described by complainants as 'oppressive', 'intimidating' and felt the interviewer was 'shouting like a playground bully'.
Ofcom recognises that the subject matter in this case may have been a particularly sensitive one for the presenter, given his own experience of being in care as a child. Further, Ofcom noted that Jon Gaunt later qualified his use of the word 'Nazi' to some extent by subsequently referring to Michael Stark as a 'health Nazi'. However, following that qualification, he reverted back to the original term 'Nazi'. The presenter also referred to the interviewee as 'an ignorant pig' and told him to 'shut up'."
"Rule 2.3 of the Code states that offensive material: 'may include … offensive language … humiliation, distress [and] violation of human dignity'. Ofcom considered the language used by Jon Gaunt, and the manner in which he treated Michael Stark, had the potential to cause offence to many listeners by virtue of the language used and the manner in which Jon Gaunt treated his interviewee. In this case, the offensive language used to describe Mr Stark, and what would be considered to be a persistently bullying and hectoring approach taken by Jon Gaunt towards his guest, exceeded the expectations of the audience of this programme, despite listeners being accustomed to a robust level of debate from this particular presenter. Even taking into account the context of this programme such as the nature of the service, the audience expectations and the editorial content, Ofcom did not consider that this was sufficient justification for the offensive material. The broadcaster therefore failed to comply with generally accepted standards in breach of Rules 2.1 and 2.3 of the Code."
"49. However, the tone of the interview degenerated from that point, partly because Mr Stark understandably took offence and because [Mr Gaunt's] conduct of the interview became increasingly abusive, hectoring and out of control. The claimant's subsequent uses of the word 'Nazi' undoubtedly assumed the nature of undirected abuse. The expression 'ignorant pig' had no contextual justification at all and was said with such venom as to constitute gratuitous offensive abuse in the sense we have indicated. [Mr Gaunt] lost control of the interview … . The later part of the interview became abusive shouting which served to convey to listeners no real content at all.
50. In these circumstances, and taking full account of [Mr Gaunt's] Article 10 rights, we consider that Ofcom were justified in their conclusion …. The broadcast was undoubtedly highly offensive to Mr Stark and was well capable of offending the broadcast audience. The essential point is that, the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification. In the result, we accept … that the … Finding constituted no material interference with [Mr Gaunt'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.
51. No sanction or penalty was imposed on the broadcaster, let alone [Mr Gaunt]. This is relevant, though not decisive, to our consideration, because it bears on the proportionality of the interference."
Freedom of expression
The Strasbourg jurisprudence
The domestic jurisprudence
Lord Justice Toulson:
Lord Justice Etherton: