OFCOM decisions quashed following GB News’ judicial review

In GB News Limited v OFCOM [2025] EWHC 460, GB News brought judicial review proceedings to challenge two decisions made by the Office of Communications (OFCOM). OFCOM’s decisions held that a GB News programme, ‘Jacob Rees-Mogg’s State of the Nation’, breached its broadcasting regulations.

The court was asked to determine the interpretation of the Broadcasting Code’s provisions relating to ‘due impartiality and due accuracy in news’.

In a blow to the regulator, Mrs Justice Collins Rice quashed OFCOM’s decisions and remitted them to be reconsidered. It is the first time OFCOM has lost such a case.

Background

GB News is a UK television and radio news channel launched in 2021. Among its key shows are topical programmes hosted by well-known politicians. Since February 2023, Sir Jacob Rees-Mogg, the former Conservative cabinet minister, has hosted his own topical discussion show on GB News titled ‘Jacob Rees-Mogg’s State of the Nation’.

As a TV broadcaster, GB News is subject to statutory regulation, overseen by the communications regulator, OFCOM. OFCOM’s Broadcasting Code states that a politician cannot be a newsreader, interviewer or reporter in a news programme “unless, exceptionally, it is editorially justified” (Rule 5.3). There is no restriction, however, on politicians hosting current affairs shows.

Rule 5.1 imposes a general requirement for ‘due impartiality’ and ‘due accuracy’ in news programming.

OFCOM’s decisions

After receiving complaints from the public in respect of Rees-Mogg’s show and following an investigation, OFCOM held that two editions of the programme had breached their Broadcasting Code (via decisions given on 18 March 2024):

1. 9 May 2023 programme in which Rees-Mogg read a summary of breaking news relating to Donald Trump and the civil proceedings brought against him in the United States; and
2. 13 June 2023 programme in which Rees-Mogg read a news bulletin and engaged with a live correspondent regarding the fatal attacks in Nottingham on the same date.

In its decisions, OFCOM held that these programmes qualified as news content. Rees-Mogg was therefore acting as a newsreader, without the necessary editorial justification, and the programmes were therefore in breach of Rule 5.3 of the Broadcasting Code. OFCOM also held that a politician presenting news content gives rise to inherent impartiality, therefore breaching Rule 5.1.

GB News’ judicial review challenge

GB News brought its challenge on three grounds:

1. That OFCOM erred in law in its interpretation of the Broadcasting Code on the basis that:
   1. It applied Rule 5.3 to news content within a programme, rather than specifically “news programmes”; and
   2. It considered Rule 5.1 to restrict any politician ever delivering “news content”, irrespective of individual context, circumstances or fact.
2. That OFCOM’s interpretation of the Broadcasting Code is incompatible with the right to freedom of expression under Article 10 of the European Convention on Human Rights. GB News argued that OFCOM’s new interpretations of the Code within the decisions, which were a form of intrusion into the freedom of journalistic expression, were not reasonably foreseeable and were not prescribed by law.
3. That OFCOM erred in law when applying its own procedural rules in respect of its investigations by widening the original scope of its investigation and issuing a second Preliminary View (which it provides to the broadcaster in advance of a decision), and not providing advance notice or explanation of this to GB News.

Court’s analysis

Interpretation of the Broadcasting Code

The judgment from Collins Rice J was striking in favouring freedom of expression and the broadcasters. She found that Jacob Rees-Mogg’s programme was a current affairs programme and not a news programme, and therefore Rule 5.3 of the Broadcasting Code did not apply.

The restriction was limited by its reference to the “news-related activities of politicians in any news programme”. News-related activities of politicians in any other type of programmes therefore fall outside of its scope, and the judge emphasised that a programme “cannot be a news programme and a current affairs programme at the same time”.

It was explained that Rules 5.3 and 5.1 do not intersect. If Rule 5.3 does not apply, then the general rule of impartiality does and requires a fact-specific and case-by-case approach. OFCOM’s argument that a politician presenting “news content” inherently results in a presumption of impartiality does not allow this contextual approach.

Article 10

Collins Rice J held that OFCOM’s interpretation of Rule 5 was novel. She referred to OFCOM’s general guidance on Rule 5.3, which merely highlights that “using politicians as reporters or presenters in news programmes themselves could be problematic in the context of the requirement for due impartiality.” As OFCOM’s own guidance did not provide such an interpretation of the Rules, its decisions were not ‘reasonably foreseeable’ or ‘prescribed by law’.

Procedural Error

This ground was not considered in detail on the basis that the real issues in this case were substantive, and it was therefore not an appropriate case in which to attempt a conclusive analysis of the application of OFCOM’s procedure.

Comment

In response to the judgment, OFCOM published a ‘Note to Broadcasters’ stating that whilst it accepts the court’s guidance on due impartiality in broadcast news, it will now “review and consult on proposed changes to Rule 5.3 of the Broadcasting Code to restrict politicians from presenting news in any type of programme to ensure this is clear for all broadcasters." It has also since announced (on 17 March 2025) that it has discontinued all of its remaining impartiality investigations regarding the appearance of politicians on these types of programmes. The rationale for OFCOM’s consultation is not entirely clear (and is not stated in the announcement). One can understand that OFCOM would consider that viewers would expect programmes which are recognisable as “news programmes” to be sacrosanct and free from any taint of political bias. Accordingly, it makes sense for politicians being banned from presenting such programmes. But if politicians are to be allowed to present other types of current affairs programmes, it is unclear why such programmes should be prevented from including even a simple update of the news. Indeed, it may on occasions be difficult in a programme dealing with current affairs to delineate between what would constitute a news update and what constitutes a component part of a current affairs debate. No doubt OFCOM will explain this rationale as and when they conduct the consultation.

GB News’ CEO Angelos Frangopoulos said the broadcaster would “vigorously defend the channel and our presenters’ freedom of speech rights.”