R (DM Digital Television Limited) v Ofcom

The Administrative Court has dismissed a judicial review challenge to Ofcom’s decision to impose fines totalling £105,000 on a broadcaster. The judgment contains important rulings on the applicability of apparent bias in relation to a regulator.

The claimant, DM Digital, was found by Ofcom to be in breach of the Broadcasting Code in respect of two programmes. In one programme, an Islamic scholar made remarks personally advocating that all Muslims had a duty to attack or kill apostates or those perceived to have insulted the Prophet. The other programme involved discussions of matters of political controversy, including by the provider of the licensed service, without due impartiality.

The claimant challenged the sanction imposed by Ofcom on two grounds. First, it was argued that Ofcom’s decision-making process had been unfair since the Ofcom employees who had investigated the case remained present with the panel of decision-makers during their deliberations following the claimant’s oral representations to the panel. Secondly, it was said that the level of fines imposed was irrational on the basis that they would put the claimant out of business and so amounted to revocation of its licence by the back door.

Stuart-Smith J rejected both arguments.

As to the first ground, the evidence showed that the employees who had investigated the case did not introduce new evidence or raise new points in the claimant’s absence. There was no actual bias or apparent bias. Further, even if the circumstances had given rise to apparent bias, the claimant and its counsel had known of those circumstances when they left the room, and the act of leaving was unequivocal in signalling that the claimant acquiesced in and agreed without any form of reservation or protest with what was happening.

As to the second ground, it was for the claimant to bring any special features regarding its financial position to Ofcom’s attention, but the information provided had been partial and Ofcom had good reason to doubt its reliability. Ofcom had been entitled to conclude on the evidence that there were or may have been additional sources of funding available to the claimant and that its costs were not accurately recorded in the documentation presented.

The judgment is available at:
http://www.bailii.org/ew/cases/EWHC/Admin/2014/961.html

Iain Steele acted for Ofcom.