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

19 June 2011 by

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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  1. carol says:

    What a load of crap, maybe if we all did DRUGS would we get a bit more leighway. im so fedup with us smokers being treated like vermon, if the government did there job right, they would know that its not the smokers thay should waste there time on, but actually took note of what REALY goes on behind closed doors. My parents both smoked and believe me it wasnt that, thate put me through counciling all these years.

  2. Stephen says:

    @ Public Outcry
    It is not clear to me what your grievance here. Could you elucidate?

  3. Public Outcry says:

    I am hoping that next week a Judge will be hopefully willing to address something along the lines as well.

    I put up on a Daily Mail website a comment along the lines of “Don’t go to Dorset, all they are interested in is what you did on a sunday afternoon 30 years ago more than anything to do with looking after a child” “I am disgusted that social services still go for soft targets than actually help vulnerable children”

    Now to most that is a somewhat critical but generally vague criticism of a county’s SSD, the SSD were informed about this, immediately cited a need for a risk assessment, banned contact for three weeks and stopped my family member coming to my home and we now have contact mostly in a 8×10 foot office, no sleeping facilities, very little room to move around.

    Now I haven’t named any social worker, manager, officer, mentioned court or the judge or even the existance of proceedings, I believe I was entitled to my own free expression of opinion, it does not defame anyone nor does it commit subjudicy or identify a child, further on there are four individual SSD’s in that county and I have not identified which one.

    So it seems now, to punish me for criticising them, the SSD did so by taking it out on the child, yet what of my rights to free expression? I am mindful of subjudicy and that I adhered to, what perceived risk can be gleaned from that statement? As I said to the manager, if I had put “I want to kill xxxx social worker” or declared an intent or incited others to harm or hinder social workers, they might have a grievance, but it does not, in sixteen years of their damned involvement I have not ever been seen to be violent, aggressive, abusive, threatening to them either, and it is remarked continually that I am not a risk to a child nor have ever been seen as one.

    Which means social workers and managers now have powers exceeding parliament if unchecked, I considered that only parliament or a court could take away my expected rights of opinion and free speech for a reason arrived at by due process but seems not so now, to criticise a SSD means they can arbitrarily punish people for doing so.

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