Commercial broadcasters cannot direct content to the UK without a licence from Ofcom, including a duty under Rule 5.1 of the Broadcasting Code to show “due impartiality” in matters of politics, industrial relations and public policy. Ofcom can take this matter enormously seriously, as Russian state-sponsored broadcaster RT found to its cost last week.

Liberal elites believe close regulation preserves wholesome broadcasting

The case against RT (which had previously clashed with Ofcom on similar grounds in 2015) concerned a collection of news programmes appearing in early 2018. Two concerned the Salisbury poisonings; four the activities of the US in Syria; and one Ukraine, where it played up suggestions of systemic governmental racism. All the broadcasts had presented the issues entirely from the Kremlin’s standpoint: none had advanced any other possible view, except in a very cursory way. After investigations, Ofcom concluded that RT had been seriously in breach of its impartiality duty and fined it £200,000 under its disciplinary powers. RT said that this was improper and in breach of its right to freedom of speech, and sought judicial review.

Last Tuesday the Court of Appeal supported Ofcom and upheld the fine. Having brushed aside technical arguments about the meaning of impartiality in law (notably, whether a station could be impartial if one partisan programme was balanced by another, unconnected, programme broadcast at some other time that showed an opposite view), it said that any restriction on RT’s freedom of speech due to its impartiality obligations were justifiable under the Human Rights Convention on the basis of the protection of the rights of audiences to a balanced news diet, and of society generally against biased news content.

This result will please many. The conventional view among the liberal elite is that our tradition of close regulation preserves the wholesomeness of broadcasting in this country, and saves us from the free-for-all in (say) the US, where there is no guarantee of impartiality and if you want to know reliably what is going on, you have to navigate your own way to the truth via a judicious dissection of what you see on CNN, Fox and PBS.

Well, up to a point, Lord Copper. Looking at the matter more closely, perhaps we should not be so sure — or so smug — about the way we do things, or about the limits we place on what people are allowed to watch and hear.

The restrictions are not only drastic but arbitrary

To begin with, whatever the legal position, the restrictive effects of the impartiality rules are actually rather drastic. As RT pointed out in its judicial review application, many — perhaps most — of its viewers watched its programmes not to get information as such, but either because they liked RT’s standpoint on news they already knew about, or because they saw a uniformity in broadcasts from other sources and wanted a different point of view on public affairs. In either case they were perfectly aware of what they were getting. In other words, they saw RT as a source of comment rather than raw information. Requiring RT to ensure each of its individual programmes or series was unbiased therefore had the effect of depriving RT of the right to broadcast, and its viewers of the right to watch, opinions the latter wanted to see, unless the broadcast also included material they were not very interested in.

Secondly, the restrictions are not only drastic but arbitrary. They affect only the airwaves, not newspapers or the Net. At one time, when people overwhelmingly got news from a handful of radio and TV channels and little else, this was possibly defensible. Today, when news increasingly comes from (unregulated) online sources, and traditional broadcast media is a minority provider, it is not. This aspect of the Broadcasting Code is now just an anomaly.

Thirdly, it is true that giving you and me access to unbiased broadcast news (or more accurately, news not dependent on a sponsor’s money, a politician’s whim or a pressure-group’s obsession – there being no such thing as “impartiality” in a vacuum) is a social good. To do this you don’t need a universal impartiality obligation placed on all broadcasters, large and small, enforced by the heavy hand of Ofcom. Indeed we already have one organisation, the BBC, whose charter provides for impartiality quite independently of any intervention by Ofcom; there is nothing to stop others accepting a similar obligation, or being set up for that purpose. It would be perfectly possible (for example) to reserve specific frequencies, bandwidth or other incentives for stations of that sort, and thereby guarantee access to impartial news for those who wanted it.

What is clearly unnecessary is extending this requirement to every station, however small or niche, that directs its broadcasts to anyone in the UK. RT, indeed, is a case in point. On a generous reckoning, its total UK reach is probably half-a-million; its average audience at any one time is less than 4,000. Binding stations to strict impartiality regulations like this serves the function not so much of empowering people to obtain unbiased news, as depriving them of the ability to watch partisan news programmes even if they want to. That is something very different, and rather more alarming.

The universal impartiality rule must go

Nor are these the only problems. The impartiality rule can, perhaps ironically, itself give rise to at least an appearance of the kind of political manipulation it affects to avoid. The sanctioning of RT here, for example, closely followed heated attacks on the station in Parliament for its denial of Kremlin involvement in the Salisbury poisonings. There were certainly suggestions that the real cause of complaint against it was not so much lack of impartiality, as that RT had gone against the official government line on the matter.

Most importantly, heavy-handed imposition of impartiality shows a remarkable disrespect for the British viewer. It essentially involves the assumption that without its protection, viewers are babes in the wood: putty in the hands of unscrupulous broadcasters motivated by money or ideology, unable to make up their own minds or to discount the possibility that attempts are being made to manipulate them. Interestingly, the court hearing the judicial review indeed did not shy away from this reason for restricting RT’s freedom to editorialise. Even for audiences quite happy with RT’s bias and indeed who sought it out, the court cited uncritically the concern that this freedom would harm the audience’s rights by depriving them of the ability to “take a full role in the modern democratic state”. Wow.

Heaven help democracy if this exercise in infantilising the British public, carefully moderating what it is allowed to see on its screens and hear on its radios, is really necessary in order to allow it to exercise its democratic rights. But it isn’t. In the 19th century and up until the 1950s, the British public seems to have exercised its democratic rights perfectly well with information from a press that was, for the most part, highly partisan and opinionated. There is no reason to think that they are any less able to do so in the 21st, or that they need any more protection from biased views than they did then. The universal impartiality rule must go. If people want to watch Kremlin-sponsored nonsense and make up their own mind about it, that is their affair. The state has no business stopping them.