High Court gives guidance on regulator's interpretation of legislation and codes

In R. (on the application of GB News Ltd) v OFCOM [2025] EWHC 460 (Admin), the High Court upheld a judicial review against the Office of Communications (Ofcom), challenging its decisions that GB News was in breach of the Broadcasting Code (the Code) in relation to two episodes of 'State of the Nation' presented by Mr Jacob Rees-Mogg (now Sir Jacob). In considering the interpretation of the Code, the court held that Ofcom's decisions were vitiated by errors of law, whilst giving broader guidance on the approach to be taken by regulators when interpreting statute and regulatory codes.

Key points

• Questions of interpretation (whether of statutory or regulatory provisions) must be viewed in their particular context and in the light of common sense, bearing in mind the dominant character of the document to be interpreted.
• Where a code issued by a statutory regulator in the discharge of statutory duties gave rise to limitations on the freedom of regulated entities through incorporation into licence conditions, subject to sanctions for breach, the court placed significant emphasis on the regulator abiding by the parameters of its own Code.
• Regulators must be careful not to take a quasi-legislative approach to the application of their own regimes, which risks undermining legal certainty. Where changes are needed to reflect developments in the sector, this must be done within the established procedures for amendment.

Background

GB News, a UK free-to-air television and radio news channel launched in 2021, often hires prominent politicians active on the national stage to host topical discussion programmes. Mr Rees-Mogg, an MP at the relevant time, hosted such a show: 'Jacob Rees-Mogg's State of the Nation'. On receipt of a number of complaints, Ofcom issued decisions that two editions of State of the Nation breached rules in the Code, a 'standards code' which governs the content of TV and radio programmes under the Communications Act 2003:

1. a broadcast where Mr Rees-Mogg read an autocue summary of breaking news lasting 53 seconds; and
2. a broadcast where Mr Rees-Mogg followed up on a breaking news report from a GB News correspondent, with whom he engaged in a live exchange for 3.5 minutes.

Ofcom considered that the programmes in question were both news and current affairs programmes, and whilst programmes can feature a mixture of the two, steps must be taken to ensure that when politicians act as presenters, they do not act as newsreaders, news interviewers or news reporters. Ofcom found that in both instances Mr Rees-Mogg had engaged in the dissemination of 'news' content, thereby acting as a newsreader in breach of Rule 5.3 of the Code, which prohibits politicians from acting as newsreaders in a news programme without exceptional editorial justification.

Ofcom also concluded that these broadcasts constituted a breach of Rule 5.1 of the Code, which requires news to be reported with "due accuracy" and "due impartiality", on the basis that a politician broadcasting news content gives rise to an inherent lack of impartiality.

Grounds of Challenge

GB News brought its challenge on three grounds, arguing that:

1. Ofcom erred in law in its interpretation of Rule 5.1 and 5.3 of the Code in that:
   1. it considered Rule 5.3 applicable to news content in any or all programmes, rather than being restricted to 'news programmes'; and
   2. it considered Rule 5.1 to prohibit any politician from ever delivering news content, irrespective of individual context, circumstances or facts.
2. Ofcom interpreted the Code in a way that was incompatible with the right to freedom of expression under Article 10 of the European Convention on Human Rights (the ECHR) by employing new interpretations of the Code which were not reasonably foreseeable and prescribed by law; and
3. Ofcom erred in the application of its own procedural rules by impermissibly widening the scope of its original investigation into a breach of Rule 5.1, without providing the required advance notice or explanation to GB News.

Judgment

The court addressed each of these grounds of challenge in turn.

Interpretation

In addition to considering the proper interpretation of the relevant provisions of the Code as a question of law, the court identified a more fundamental question: what is the proper legal boundary in a code of this sort between a generous approach to interpretation, enabling it flexibly to accommodate new developments in the sector, and on the other hand respecting the careful regime put in place by statute to govern changes to the Code? Or more pithily: "Where, in law, does applying the rules stop and changing them start?"

Collins Rice J noted that all questions of interpretation must be viewed in their particular context (statutory or otherwise) and in the light of common sense, bearing in mind the dominant character of the document to be interpreted is a code issued by a statutory regulator in the discharge of statutory duties. Those statutory duties engage a range of public interest and legal considerations, and the Code is addressed to a regulated sector and gives rise to limitations on freedom through incorporation into licence conditions, subject to sanctions for breach. In that context, the court placed significant emphasis on Ofcom abiding by the parameters of its own Code.

Ofcom raised concerns about the new media landscape, with the use of political presenters blending news and comment content in an unprecedented manner, which the court considered carefully since "even where a pure point of law is at stake and a right or wrong answer must be objectively identified, it is necessary to pay close attention to the understanding and perspective of a statutory regulator, as to the legal context within which it has its entire existence, and as to the ways in which legal language comes up against reality". However, the court considered that broadening the scope of Rule 5.3 beyond 'news programmes' as specifically referred to in the rule itself would do "violence to the wording of the Code". It also emphasised the constraints that Ofcom itself is subject to in relation to setting, reviewing and revising the Code, including procedural requirements such as consultation. Where Parliament has imposed such constraints on a regulator in this way, the court must be alert to the regulator taking it upon itself to "develop" the regulatory scheme outside those parameters.

The court did not find material ambiguity in Rule 5.3, concluding that the rule only applies to 'news programmes' rather than the broader scope of any programme containing news content. The court made a clear distinction between 'current affairs programmes' and 'news programmes', with Mr Rees-Mogg's programme falling into the former rather than the latter, thus excluding the applicability of Rule 5.3 in the circumstances. Interestingly, even if there had been ambiguity, Collins Rice J would have reached the same result applying a narrow construction in light of principles applicable to the construction of statutory regimes abridging freedom of expression and the anxious scrutiny necessary where specific statutory procedures have been provided governing revision of a statutory code.

The court also explained that Rules 5.1 and 5.3 "do not intersect or apply simultaneously". Where Rule 5.3 does not apply, as in this case, then an assessment of impartiality under Rule 5.1 requires a fact specific and case-by-case approach in the form of a "fully contextual analysis". Ofcom's argument that the rule on impartiality was inherently breached by a politician presenting news content failed to apply this contextual approach.  

Article 10 ECHR

Based on the above interpretation of Rule 5, the court found that the meaning of the Code which Ofcom sought to enforce in its decisions against GB News was not prescribed by law for the purposes of Article 10 ECHR. Ofcom's interpretation of Rule 5 was found to be "novel", with Ofcom itself admitting that the decision represented the application of the Code in a new and evolving media context. The court found the contention that no politician may present news in whatever form, unless it is exceptionally editorially justified, would produce startling results and was not reasonably foreseeable.

The Procedural Challenge

The court only briefly addressed GB News' procedural challenge, noting that no substantive unfairness was alleged and the real issues in the present case were substantive. However, the court did highlight the lack of clarity in Ofcom's correspondence with GB News in explaining why it was expanding the scope of its investigation beyond its original parameters.

Comment

Ofcom has published a statement accepting the court's decision and indicating that it will now review and consult on proposed changes to the Code with the objective of "restricting politicians from presenting news in any type of programme", to ensure clarity for all broadcasters.

Beyond the specific broadcasting context, the decision represents a strong reminder for regulators to abide by the relevant statutory landscape without expanding provisions beyond their intended use, unless the appropriate procedures have been complied with. Whilst many regulators may sympathise with Ofcom's attempt to use its existing regulatory framework to make novel decisions in a new and evolving context, it is clear that the courts will protect legal certainty and foreseeability for those in regulated sectors, rather than giving regulators carte blanche in the name of flexibility. Much is made of the breadth of discretion often given to expert regulators, but this decision highlights that the courts will not hesitate to ensure that action taken is in accordance with fundamental legal principles.