“Fags didn’t stop my foster mum caring for me”

19 June 2011 by David Hart KC

Gaunt, R (ota) v. Ofcom [2011] EWCA Civ 692 read judgment

No prizes for guessing which redtop hosted an article so titled. Its author, given his past, felt very strongly about Redbridge Council seeking to ban foster parents from smoking; hence his article dubbed them as “health and safety Nazis”. So he went on and interviewed a councillor on Talksport, had a go at him – and then completely “lost it”. He promptly lost his job, and got rapped over the knuckles by Ofcom for being in breach of the Broadcasting Code. This case is about his unsuccessful attempt to overturn the latter on Article 10 grounds – interference with freedom of speech.

Somewhat ambitious appeal, this. Para. 2.1 of the Broadcasting Code seeks to protect members of the public from harmful and/or offensive materials. Para 2.3 says that broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language.

Gaunt, after a reasonably controlled beginning, fell out with his interviewee, a Mr Stark, after the latter spoke of some Redbridge Councillors smoking in the Council building, despite denying it. Gaunt responded:  ‘so you are a Nazi then?’ When Stark began to protest, Gaunt said ‘no you are, you’re a Nazi’. Stark protested vehemently that this was an offensive and insulting remark, and the interview then degenerated into an unseemly slanging match. Gaunt 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 Gaunt doing much of the talking. 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. Gaunt regarded this as an offensive insult to his own upbringing and called 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. As the Administrative Court described it

It is scarcely possible to convey the general and particular tone of this interview in a short written summary…. The interview as a whole can fairly be described as a rant.”

Enter Article 10, Gaunt’s attempted saviour, protecting freedom of expression, namely the right to say what one wants and how one wants, and to impart and to receive information and ideas. It is, as the CA noted in para.22, “not by any means a purely cosy right”. As Sedley LJ had previously said in the Divisional Court, “[f]reedom only to speak inoffensively is not worth having” – Redmond-Bates v DPP.

However, Gaunt had to get over the proviso in Article 10.2 – despite the fact that Ofcom had found that the interview had caused significant and unnecessary offence.

Gaunt’s best precedent was Fuentes Bobo.  The applicant had been dismissed by the directors of the Spanish national broadcasting company, for describing its directors in a radio interview (where he was the interviewee, not presenter), as “leeches” who “shit on …. the workers”. The point at issue was whether the applicant’s dismissal was “proportionate to the legitimate aim pursued” and “answered a ‘pressing social need.'” The ECtHR found a violation of Article 10. It pointed out that the words had first been used by others, and that “the applicant had merely endorsed them”, and that the words “almost seem to have been provoked … by the presenters …”.  The court held that there had been a violation of Article 10, as it was not satisfied that “the interference complained of, having regard to the gravity of the penalty, answered a ‘pressing social need'”. While accepting “the margin of appreciation enjoyed by the national authorities”, the court concluded that “there was no reasonable relationship of proportionality between the penalty imposed on the applicant and the legitimate aim pursued.”  Note the penalty complained about in Fuentes Bobo was being sacked, not simply being subject to a finding by Ofcom as in Gaunt’s case.

As the CA put it wryly,

It would be wrong to focus too hard individually, let alone exclusively, on (i) Mr Gaunt ‘s specific insults, such as “health Nazi” or “ignorant pig”, (ii) his hectoring tone and bullying manner, (iii) his persistent interruptions, (iv) his failure to let Mr Stark develop any argument or even answer the points made by Mr Gaunt , including telling Mr Stark to “shut up”, or (v) his treating more than one innocuous comment by Mr Stark as an insult. All these points must be considered together, together with the fact that the interview was permitted to run on for many minutes after it had become clear that it had got out of hand…

Hence, it was the combination of these points which

render it impossible to accept the contention that the publication of the Finding, which contained no sanction, other than the stigma of the publication of an adverse finding by the statutory regulator, represented an interference with Mr  Gaunt ‘s right to freedom of expression under Article 10.

The decision was ultimately a matter for the court, though it would pay due regard to the findings of Ofcom as regulator.

So no huge surprises in this. But the case law reminds us that the courts are expected to look circumspectly at any attempt to restrain freedom of expression – no matter how abusively it is expressed.

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