United Kingdom

[GB] Ofcom determines RT’s licensee ANO TV Novosti is not a fit and proper broadcaster and revokes its licences to broadcast in the UK

IRIS 2022-4:1/12

Julian Wilkins

Wordley Partnership and Q Chambers

Ofcom has revoked the licences of RT’s licensee ANO TV Novosti (the Licensee) to broadcast in the UK considering it not a fit and proper broadcaster given the regulator’s immediate concerns about its compliance with due impartiality rules.

The decision came amidst 29 ongoing investigations by Ofcom into the due impartiality of RT’s news and current affairs coverage of Russia’s invasion of Ukraine. The volume and nature of the complaints in a short space of time caused great concern for Ofcom. Further, Ofcom assessed matters in the context of RT’s compliance history including a GBP 200 000 fine for previous impartiality breaches. Between 2012, when the Licensee acquired its first licence, and 2017, Ofcom recorded 15 breaches of the Broadcasting Code, including eight for breach of due impartiality and accuracy rules.

Another factor was that RT is funded by the Russian Federation which recently introduced new laws in Russia criminalising independent journalism if it diverts from the Russian State’s own narrative of the invasion of Ukraine. This constraint made it impossible for RT to report on Ukraine and maintain compliance with Ofcom’s Broadcasting Code rules concerning due impartiality.

Given this background, Ofcom launched, on the 8^th March 2022, a separate investigation to determine if the Licensee was fit and proper to retain its licence to broadcast in the UK.  The Licensee requested additional time to respond, and this was granted. The Licensee declined to provide further representations or to attend the Oral Hearing on 16^th March 2022. However, the Licensee did submit representations about the 29 complaints concerning their coverage about Ukraine

Ofcom considered that an expedited procedure was necessary even though the RT service was not currently broadcasting in the UK due to sanctions by the EU, which are temporary, and of the commercial decisions of platform providers. However, the Licensee continued to hold Ofcom broadcasting licences making it possible to resume broadcasting at any time (e.g. by coming to an arrangement with a broadcasting platform specific to the UK).

Ofcom took seriously the importance, in a democratic society, of a broadcaster’s right to freedom of expression and the audience’s right to receive information and ideas without undue interference. Further, the regulator took seriously the importance of maintaining audiences’ trust and public confidence in the UK’s broadcasting regulatory regime.

In considering these factors, section 3(3) of each of the 1990 and 1996 Broadcasting Acts were applied: “Ofcom shall not grant a licence to any person unless satisfied that the person is a fit and proper person to hold it; and shall do all that they can to secure that, if they cease to be so satisfied in the case of any person holding a licence, that person does not remain the holder of the licence.”

Further, section 319(2) of the Communications Act 2003 sets out duties upon Ofcom, including to ensure that news included in television and radio services must be reported with due accuracy and presented with “due impartiality”, and that the special impartiality requirements of section 320 of the 2003 Act are complied with (section 319(2)(c) and (d)).

The Broadcasting Code sets out the definition of the statutory requirement for “due impartiality” which means that impartiality must be adequate or appropriate to the subject and nature of the programme. Significant stories such as Ukraine meant that a broadcaster had to apply a higher standard of impartiality and accuracy. Ofcom’s research suggested viewers expected high standards of impartiality for programmes aimed at UK viewers. The legitimate aim pursued by the Broadcasting and Communications Acts and the Code is to protect audiences from harmful partial broadcast news by ensuring the availability of accurate and impartial news services.

Ofcom referred to Article 10 (1) of the European Convention on Human Rights which protects a broadcaster’s and its audience’s right to freedom of expression, including the freedom to “hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. However, Article 10(2) allows for interference with Article 10(1) if it is “prescribed by law” and, amongst other things, it is “necessary in a democratic society, [...] for the protection of the reputation or rights of others”.

Taking account of the relevant legislation and Broadcasting Code as well as their immediate and repeated compliance concerns, Ofcom was not satisfied that the Licensee could be a responsible broadcaster in the current circumstances. Therefore, Ofcom revoked RT’s licences TLCS 0008881, TLCS 001686, and DTPS 000072 to broadcast in the UK with immediate effect.