Broadcast regulator Ofcom has confirmed that its rules do not allow the controversial channel GB News to be held to different impartiality standards from those governing public service broadcasters, as “the same rules and assessment process apply to all broadcasters”.

Byline Times previously reported that I had partnered with the Good Law Project to inform Ofcom that we intended to apply for a judicial review of its approach to GB News unless it made clear that it had not changed its policy on due impartiality in the case of smaller, non-public service, broadcasters.

In particular, on the point of holding them to different standards from those governing the public service broadcasters – something which its Broadcasting Code does not appear to permit.

Our action was prompted by remarks by Ofcom's CEO, Dame Melanie Dawes, about the channel to Sky News, in which she stated that Ofcom’s requirement for due impartiality could be achieved “in lots and lots of different ways” – including ways that are appropriate for audience expectations and for the subject matter of a programme.

"The standard for someone like the BBC, which reaches still, 70% of the TV viewing audience for news, is a different one from that of a channel that has an audience of maybe 4% or 5% of a of the viewing public," she added. "We expect different things and I think that's appropriate."

We have now received a response from Ofcom, which states that our proposed claim is “based on a false premise", is "entirely misconceived and without merit”.

It states that we have “hypothesised an alleged policy on the basis of two brief remarks made in the context of a live Q&A interview” and that the comments quoted “were clearly not intended to be, and should not be taken as, an unpublished policy position of Ofcom”.

The regulator also pointed out that its CEO “does not play any role in the decision-making process in relation to the assessment, investigation, and enforcement of broadcasting standards generally and due impartiality matters specifically”.

The claim has therefore produced a very positive result: Ofcom has effectively admitted that Dame Melanie Dawes mis-spoke – and we now know that, given the nature of her role, we do not need to place too much store by her remarks about GB News and impartiality.

Ofcom also said that, in matters pertaining to impartiality, context is important.

Section five of its Code, which covers due impartiality, doesn’t actually explain what 'context’ means and unhelpfully refers back to section 2, which deals with harm and offence. But the latter lists a large number of factors including: the editorial content of a programme, programmes or series; the service on which the material is broadcast; and the likely size and composition of the potential audience and likely expectation of the audience. 

In its response, Ofcom stressed that “we always consider each case on its particular facts, taking into account the relevant context in our application of the Code”.  Audience size, then, can be taken into account in any given case – but the regulator has been keen to assure us that “the same rules and assessment process apply to all broadcasters”. 

Any further challenge to Ofcom, in the form of a request for judicial review, would be unlikely to receive permission to proceed – but not because our original challenge was “misconceived and without merit”. Rather because it put Ofcom in a position in which it had to distance itself from claims made by its CEO which were interpreted by some as indicating that there were looser impartiality rules for smaller broadcasters such as GB News than for public service broadcasters. 

That’s a useful marker for the future, and we’re perfectly happy with the outcome.   

Julian Petley is a Honorary Professor of Social and Political Sciences at Brunel University London