GB News has succeeded in its judicial review claim against broadcast regulator, Ofcom.
In GB News Limited v OFCOM [2025] EWHC 460, the High Court quashed two decisions by Ofcom that GB News’ use of Sir Jacob Rees-Mogg (a member of parliament at the relevant times) as a presenter of news content breached the Broadcasting Code. This is the first successful judicial review of Ofcom’s application of the Broadcasting Code.
Background to GB News’ claim
In March 2024, Ofcom found that two editions of GB News’ programme Jacob Rees-Mogg’s State of the Nation on 9 May and 13 June 2023 breached Rules 5.1 and Rule 5.3 of the Broadcasting Code. Rule 5.1 requires news to be presented with due impartiality and due accuracy. Rule 5.3 prohibits politicians from acting as newsreaders, interviewers, or reporters in news programmes (unless, exceptionally, it is editorially justified).
Ofcom held that:-
- Sir Rees-Mogg had acted as a newsreader when, in the 9 May episode, he read an autocue summary of breaking news relating to the civil proceedings brought against Donald Trump, and in the 13 June episode, engaged in a discussion with a correspondent regarding the fatal attacks in Nottingham that same day. As Sir Rees-Mogg was a politician at the time, this breached Rule 5.3.
- As a politician had read the news (without exceptional editorial justification), the news was not presented with due impartiality, thereby breaching Rule 5.1.
GB News challenged Ofcom’s decisions in judicial review proceedings. It considered that Ofcom erred in law in its interpretation of Rules 5.1 and 5.3, and that this interpretation is incompatible with Article 10 of the European Convention on Human Rights (the right to freedom of expression). GB News also contended that Ofcom erred in law in its application of its own procedural rules, by expanding the scope of its investigation from a breach of Rule 5.3 to also include a breach of Rule 5.1, without advance notice and explanation to GB News.
High Court’s decision
The Court found that Ofcom erred in its interpretation of Rules 5.1 and 5.3 of the Broadcasting Code.
Mrs Justice Collins Rice held that:-
- There is a legal distinction between ‘news programmes’ and ‘current affairs programmes’ and Rule 5.3 of the Broadcasting Code expressly states it only applies to news programmes. Ofcom’s analysis therefore did “violence to the wording of the Code“, as it applied Rule 5.3 to news-related content contained within a current affairs programme.
- Rule 5.1 cannot be breached solely because a politician presents news content in a programme. The assessment of due impartiality requires a “fully contextual analysis”, not a presumption of partiality. Whilst the fact that a politician is presenting the news is a relevant factor, the nature and content of the news and the programme are relevant factors too.
In relation to GB News’ challenge on Article 10 grounds, Collins Rice J held that Ofcom’s interpretation of Rule 5 was novel and that its decisions were not ‘reasonably foreseeable’ or ‘prescribed by law’.
Collins Rice J limited her observations on GB News’ procedural error challenge, holding that the real issues were substantive. However, she noted that Ofcom had been unclear in its correspondence about expanding the scope of its investigation to also include a breach of Rule 5.1.
Collins Rice J quashed Ofcom’s decisions and remitted them to be reconsidered by Ofcom.
Comment
The judgment of Collins Rice J highlights the tension between regulatory objectives and freedom of expression in an evolving media landscape, and notably favours editorial freedom. The judgment also emphasises that regulators such as Ofcom should not take on quasi-legislative roles in interpreting their own standards, in the interests of legal certainty.
Since the judgment, Ofcom has withdrawn three of its previous rulings against GB News programmes hosted by Ester McVey and Philip Davies (when they were both acting as Conservative MPs), as well as a ‘not pursued’ decision relating to another edition of Jacob Rees-Mogg’s State of the Nation. All six decisions have now been removed from GB News’ compliance record.
Ofcom has also discontinued all its remaining impartiality investigations into programmes presented by politicians (such as programmes hosted by Reform UK leader Nigel Farage on GB News, Foreign Secretary David Lammy on LBC, and former Reform UK deputy leader David Bull on TalkTV).
Whilst Ofcom has stated that it accepts the Court’s guidance on due impartiality in broadcast news and has issued interim guidance reflecting the Court’s judgment, Ofcom is now reviewing and consulting on proposed changes to Rule 5.3 to restrict politicians from presenting news in any type of programme. The consultation is expected to be published later in the spring. A review of Rule 5.3 is arguably needed in today’s media landscape, when the distinction between current affairs and news programmes can often be artificial and blurred. All programmes containing factual news content ought to be held to standards of due impartiality.
