Office of Communications v Star China Media Limited

The narrative section below, and the equivalent sections dealing with Messrs Gui and Cheng, are based with minor modifications on Mr Glen’s skeleton argument, for which I am grateful.

On 6 July 2020, Ofcom found that two programmes which had been broadcast on CCTV News on 27 August 2013 and 14 July 2014 breached Rules 7.1 and 8.1 of the Broadcasting Code. Both programmes focused on the circumstances of a British citizen, Mr Peter Humphrey, and his American wife, who had been arrested in Shanghai. Mr Humphrey had been a journalist with Reuters but now ran a corporate intelligence company in China, and was accused by the Chinese authorities of having illegally obtained and traded personal information about Chinese citizens, including in the context of work which he had undertaken for the international pharmaceutical company, GSK, to investigate who had been responsible for spreading allegations of bribery against GSK’s senior executives in China. Both programmes contained footage of Mr Humphrey in detention (in the first programme, wearing handcuffs) in which he purportedly confessed to various criminal offences.

Mr Humphrey subsequently complained to Ofcom that the programmes had wrongly suggested that he was voluntarily confessing to crimes for which he had been neither tried nor convicted at the time of broadcast. He complained that prior to the interview used in the first programme, he had been sedated and forcefully brought to a steel cage by prison guards and police officers, before being locked to a metal chair whilst being restrained with handcuffs, unaware that he was due to be filmed. He further alleged that the questions were put to him by a police officer who sought to force him to read answers from a script which was not visible on camera. He said he had no idea that he was being filmed in this manner and that he had been pressured into apologising for his conduct (a step which he had been encouraged to believe would lead to his case being resolved more favourably).

In its Breach Adjudication dated 6 July 2020, Ofcom noted (amongst other matters) that the programmes had involved the broadcast of intrusive footage of Mr Humphrey while held in a vulnerable position in Chinese custody and that Star China had unwarrantedly infringed his privacy. It further found that the programmes gave viewers the unfair impression that Mr Humphrey was making a genuine, voluntary statement that he had committed criminal offences when Star China had substantial grounds to doubt that was the case, including in circumstances where Mr Humphrey’s consent to being interviewed was recorded in a note in which he had explained that “I have been told by the PSB that the purpose of this interview is to obtain an outcome of our case which will be favourable and lenient”.Given the serious nature of the breaches of the Broadcasting Code, Ofcom put Star China on notice that it intended to consider the breaches for the imposition of a statutory sanction.

As Ms Cook’s witness statement explains in greater detail, the decision-makers whom Ofcom appointed to consider the imposition of a sanction agreed that these breaches were both serious and repeated. On 4 November 2020, Ofcom issued a Preliminary View in which it explained that it was minded to impose a statutory sanction on Star China for these breaches in the form of: (a) a financial penalty of £125,000; (b) a direction that Star China broadcast a statement of Ofcom’s finding on a date and in a form to be determined by Ofcom; and (c) a direction that Star China not repeat any broadcasts of the programmes found in breach.

In accordance with the Sanctions Procedures, Star China was given the opportunity to provide written and oral representations on the Preliminary View. Star China provided written representations to Ofcom on 16 December 2020. It chose not to make oral representations. Following publication of the Humphrey Penalty on 8 March 2021, notice to pay was immediately served. Mr Glen has not sought to contend that the reduction in the penalty by £25,000 reflected the removal from the stage of specific deterrence, and I therefore say no more about it.

Mr Glen took me through the Humphrey Sanction Decision in some detail. That was a valuable exercise. It is clear that Ofcom bore in mind the fact that Star China’s licence had been revoked (para 7). After setting out its own regulatory framework, Ofcom sought to analyse the interplay between Articles 8 and 10 of the Convention in a case such as this (paras 16ff). Save that I think that the reference to “due impartiality requirements” must be an error, I consider that paras 20 and 21 contains an accurate distillation of the position, and in harmony with cases such as Bank Mellat (No 2):

“20.

In Ofcom’s view, the individual’s right to privacy under Article 8 of the Convention has to be balanced against the competing right of the broadcaster and of the audience to freedom of expression under Article 10 of the Convention. Neither right as such has precedence over the other and where there is a conflict between the two, it is necessary to intensely focus on the comparative importance of the specific rights in the individual case. Any justification for interfering with or restricting each right must be taken into account and any interference or restriction must be proportionate.

21.

The interference with Article 10 attendant on imposing a statutory sanction in relation to findings of breaches of due impartiality requirements may, where appropriate and proportionate in the circumstances of the case, be justified by the need to achieve these legitimate aims. In order to be proportionate, any interference must be the minimum necessary to promote the legitimate objective pursued.”

At para 66 of its decision, Ofcom explained why it considered that Star China’s breaches were particularly serious. In summary, Mr Humphrey was shown disclosing highly sensitive information (sc. that he had committed a criminal offence), and there is no evidence that Star China obtained his informed consent. Mr Stables did not question any of this. It was also highly relevant in Ofcom’s estimation that Star China was guilty of a repeated breach in that two (different) programmes were broadcast 11 months apart.

At paras 77ff Ofcom undertook a detailed analysis of the various factors in the Penalty Guidelines. I need not summarise these paragraphs save to note that Ofcom accepted that there was nothing to suggest that the breaches were deliberate or reckless. Their seriousness inured in the highly intrusive nature of the programme content (I précis) and their repeated nature. Ofcom also had regard to its library of precedents.

At para 108 of its decision, Ofcom stated:

“As set out in our Penalty Guidelines, the central objective of imposing a penalty is deterrence. The amount of any penalty must be sufficient to ensure that it will act as an effective incentive to compliance, having regard to the seriousness of the infringement. Star China no longer holds a broadcast licence and the CGTN service has ceased broadcasting in the UK following revocation of the licence; therefore there is no longer any risk of future non-compliance by Star China or in respect of the CGTN service in this case. Nevertheless, Ofcom is concerned to ensure that enforcement against serious breaches of the Code acts as a wider deterrent against non-compliance by broadcasters in general. Accordingly, Ofcom has considered what would be an appropriate and proportionate penalty, which would act as an effective deterrent, had Star China continued to hold a broadcast licence and the CGTN service continued to be broadcast, taking into account the size and turnover of the Licensee and broadcaster’s and audience’s rights to freedom of expression under Article 10 of the Convention.”

On 8 March 2021, Ofcom found that two programmes which had been broadcast on CCTV News/CGTN about Mr Minhai Gui had breached Rules 7.1 and 8.1 of the Broadcasting Code. Mr Gui was a Hong Kong bookstore owner and prominent democratic rights activist on the island, who had subsequently left China to live abroad.

On 17 January 2016, CCTV News reported that he had voluntarily returned to China to serve a two-year prison sentence for a drink driving offence arising from a fatal car accident, having allegedly been a “fugitive”for over ten years. Footage of Mr Gui was broadcast in which he was seen explaining that his decision to return to China was prompted by concern for his elderly parents. Mr Gui then became visibly upset before stating that he was “willing to take my responsibility and accept any punishment”. The report concluded by alleging that Mr Gui was also “suspected for other crimes”, albeit no further details were provided.

Some two years later on 18 February 2018, CGTN broadcast an update on Mr Gui’s case. This programme noted that Mr Gui had recently completed a two-year prison sentence for the alleged drink driving offence but that “his troubles were not over”. Footage was shown of Mr Gui sat next to a police officer, speaking to a group of eight people with microphones (a scenario which was described as “an interview with CCTV”). The report went on to claim that despite promising not to leave China while the authorities completed their investigations, Mr Gui had been apprehended taking a high-speed train to Beijing with “two Swedish diplomats” and that he “was carrying a lot of materials concerning state secrets and was suspected of illegally providing state secrets and intelligence overseas endangering state security.” The report stated that Mr Gui had been arrested by the Chinese police and placed back in custody.

In December 2018, Mr Gui’s daughter, Ms Angela Gui, complained to Ofcom on Mr Gui’s behalf about unfair treatment and unwarranted infringements of privacy in connection with the obtaining and broadcast of material included in the two programmes. Ms Gui explained that her father had in fact been taken under duress by the Chinese authorities while on holiday in Thailand in October 2015. He had been detained since that date without being able to communicate with the outside world. Ms Gui also noted that the 2018 programme presented the allegation Mr Gui had been in possession of state secrets as a fact, despite the reality being that Mr Gui had not yet faced any trial in relation to this matter. She also pointed out that he was already in police custody at the time when he was alleged to have committed this crime.

In its Breach Adjudication given on 8 March 2021, Ofcom found that both programmes had involved broadcasting footage of Mr Gui in a notably vulnerable and private situation. The programmes would have unfairly led viewers to understand that Mr Gui was guilty of the criminal offences in question and had omitted highly material context about the circumstances of his arrest and detention by the Chinese authorities. For instance, the Gui Adjudication noted that the European Parliament had passed a resolution in 2015 which described Mr Gui’s status as “disappeared” and that Human Rights Watch had concluded that Mr Gui’s departure from Thailand was a case of “enforced disappearance”.

The breaches in question were considered to be both serious and repeated – a view which, as Ms Cook explains was shared by the sanction decision-makers. In a Preliminary View dated 22 June 2021, Ofcom indicated that it was minded to impose a sanction on Star China in the form of a financial penalty of £100,000. Star China produced written representations in response. As I have said, the Gui Sanction decision was published on 26 August 2021 confirming the £100,000 penalty.

The Gui Sanction Decision followed a similar format to the Humphrey Sanction Decision. Ofcom found serious and repeated failures of compliance with Rules 7.1 and 8.1 of the Code (para 59). In reaching its conclusion that these were repeated breaches, Ofcom took into account the fact that there had been two Gui programmes broadcast two years apart (in January 2016 and February 2018), as well as the findings in Mr Humphrey’s case (see paras 57 and 58). Para 101 is on similar lines to para 108 of the Humphrey Sanction Decision.

Also on 8 March 2021, Ofcom found a programme which had been broadcast on CGTN on 21 November 2019 about Mr Simon Cheng had also breached Rules 7.1 and 8.1 of the Broadcasting Code. Mr Cheng is another Hong Kong political activist. He had formerly worked at the British Consulate on the island but had been detained by the Chinese authorities in August 2019 while on a business trip.

The relevantprogramme on CGTN was broadcast on 20 November 2019 being the day after Mr Cheng had given an interview to the BBC in which he claimed that the Chinese authorities had tortured him (including by being shackled, blindfolded and beaten) in an attempt to make him confess that he was a British spy who was involved in instigating the 2019 Hong Kong protests.

The programme alleged that “Shenzhen police have released videos of Simon Cheng soliciting prostitutes”. CCTV footage was broadcast which purportedly showed Mr Cheng acting in the manner alleged. It was reported that Mr Cheng had “acknowledged his violation of the law”.

On 27 November 2019, Mr Cheng complained to Ofcom. He stated that the CCTV footage had not in fact shown him soliciting prostitutes, as reported. He also explained that the police presented no evidence of this other than his purported confession, which had been obtained under duress while he was being held incommunicado, at an unknown location and in solitary confinement whilst subject to torture. He complained that the broadcast stated he was “tried”, which was false because there had been no trial and instead that he had been placed in “administrative detention” (which is not a judicial process). Mr Cheng said that he had confessed because he had been told that if he cooperated with the police, he would “face a less harsh treatment, only administrative detention, and I would not get a criminal record”. Mr Cheng explained that CGTN failed to note any of this context in the broadcast, despite its awareness of it, and further CGTN mischaracterised Mr Cheng’s contribution to the broadcast as being that of a “willing” participant, despite no consent having been sought.

In its Breach Adjudication dated 8 March 2021, Ofcom found that the programme had infringed Mr Cheng’s privacy by broadcasting the footage in question. It also held that he had been treated unfairly in how the programme had presented his case, including by omitting highly material matters bearing on the actual circumstances of Mr Cheng’s arrest and detention which Star China would have known in advance. The breaches of the Broadcasting Code were again noted to be serious – a view which Ms Cook and her other decision-makers subsequently confirmed.

In a Preliminary View dated 22 June 2021, Ofcom therefore indicated that it was minded to impose a sanction on Star China in the form of a financial penalty of £100,000. Star China produced written representations on 12 July 2021. On 26 August 2021, Ofcom published its Sanction Decision confirming why it regarded a financial penalty of £100,000 to be warranted.

Notice was served by Ofcom on Star China to pay financial penalties of £100,000 in each of the Gui and Cheng cases on the same day, 26 August 2021.

Nothing really turns on the Cheng Sanction Decision. Para 48 addressed the issue of repeated breaches. By that stage, Ofcom had more material to consider, including that relating to the Humphrey and Cheng Sanctions.

Star China’s Amended Defence advances a number of new arguments. For present purposes it does not seem to me to be a worthwhile exercise to differentiate between the new and the old. Understandably, Ofcom advanced some forensic points on this topic but I consider that I should be addressing any new points head-on, ignoring the timing of their arrival on this stage.

By para 17D, it is pleaded that the standards code and the fairness code are “two legally distinct codes required by statute to be set by Ofcom”.

By para 17E, it is pleaded that there is a further important distinction to be drawn between standards and fairness complaints: the latter can only be brought by the person affected or an authorised representative.

By para 33:

“(a)

in all the circumstances of the case, Ofcom has not established that the interference in each case was the minimum necessary for the purposes of Article 10(2);

(b)

further or alternatively, that by reason of the level of penalties imposed and the stated purposes of wider deterrence reasoned for these penalties, in the circumstances of breaches of rules 7.1 and 8.1, and therefore including the special provisions for fairness and/or privacy complaints and the sensitivity to fact of such complaints, the penalties are excessive and unlawful under Article 10 as an interference with the Article 10 rights of others, including the rights of other broadcasters and the public.”

By para 39 it is pleaded that the Swift J and CoA decisions in relation to the revocation of licence issue and the applicability of wider deterrence have no bearing on the present case, which is not about due impartiality but breaches of sections 7 and 8 of the Broadcasting Code.

By para 39A, it is further pleaded that there was no justification for imposing any further penalties in the cases of Messrs Gui and Cheng, that the importance of journalistic investigation in circumstances that might generate fairness and privacy complaints “is very great indeed”, and that there is little if any scope for penalising a licensee in this context on the basis of considerations of general or wider deterrence.

Finally, by para 40 it is pleaded that there exist further matters justifying a conclusion that the sanctions imposed were disproportionate. These include: the existence of a legitimate public interest in the reporting; the fact that the breaches were not deliberate or reckless; the absence of financial gain; the taking of subsequent remedial steps; Star China’s previous good compliance history; Star China’s general co-operation with the investigatory process; and, finally, the absence of any complaints from the viewing public in the cases of Messrs Gui and Cheng.

In his written argument, Mr Stables sought to crystallise his essential submission in this manner:

“These aspects [sc. the aspects highlighted in the Amended Defence] of the three unfairness and privacy penalties show the disproportionate, arbitrary and therefore unlawful nature of those penalties. The unlawfulness may be placed broadly on two footings: (i) the absence of any or any sufficient basis for the penalty to achieve wider deterrence without excessive, i.e. unlawful, collateral effect restraining speech in respect of matters of fairness and/or privacy, that is to unlawfully to chill such speech; and (ii) the irrational, excessive and disproportionate, i.e. unlawful, penalties applied to Star China.”

As for the first of these footings, Mr Stables submitted that: (a) the regimes in relation to standards breaches and fairness/privacy are fundamentally distinct; (b) fairness and privacy breaches are far more fact-sensitive, and can only be investigated if the person affected makes a complaint; (c) in standards cases the scope for re-application of Ofcom’s reasoning in any case to another may be conceptually and practically tolerable, whereas it is not in fairness and privacy cases; and (d) that has particular implications for wider deterrence in the latter context, particularly in a situation where “the circumstances of any particular fairness or privacy complaint … cannot be known in advance and is so variable, and so open textured, that wider deterrence will inevitably chill speech … to a degree that can rarely, if ever, be justified as a brake on the media’s freedom of investigation and of expression.”

As for the second of these footings, Mr Stables sought to distinguish the Swift J and CoA decisions not merely on the basis that these were very much tethered to a case which involved a breach of standards, but also on the ground that the Gui and Cheng penalties were imposed five months after the Humphrey penalty. The latter already had included within it a very significant element of uplift for repetition. It was illogical, submitted Mr Stables, that the imperatives of wider deterrence should be recruited to justify further “massive penalties” when “as a matter of logic, the appropriate wider deterrence for repeated breach had already been imposed and could not rationally be imposed again, whether or not Star China was to be artificially treated as still holding a licence for the Gui and Cheng breaches”.

Furthermore, it is argued that there was an element of retrospectivity in respect of Ofcom’s imposition of these penalties, and:

“The reasoning for such treatment of repetition in the Gui and Cheng penalties is irrational and absurd. The level of the penalties derived from that reasoning are irrational and disproportionate. All of the programmes in the Gui and Cheng cases were transmitted at least 8 months prior to the breach adjudication in the Humphrey case (6 July 2020) and 18 months prior to the Humphrey penalty (8 March 2021). But Ofcom saw fit to reason repetition by reference to the finding and penalty that could not have been known to Star China, or to any other licensee by, at the earliest, July 2020.”

Finally, Mr Stables advanced the following broad submission on the merits:

“One simple means of showing the material disproportion of the aggregated penalties is that if all three fairness and privacy penalties, which concerned five separate programmes, had been considered together, as was the case with the five programmes that led to the single Impartiality Penalty, the £300,000 of total penalty for the Humphrey, Gui and Cheng cases would have exceeded the statutory maximum penalty available to Ofcom. Although separate investigations of the Gui and Cheng complaints would no doubt have been necessary, given the individual nature of the fairness and privacy complaints, as above, it is very difficult to see what Ofcom’s rationale could have been to exceed that statutory cap merely by sanctioning the cases separately, given the alleged similarity of breach that Ofcom relies on.”

This is a short point which was advanced attractively by Mr Glen albeit very much as a coda to his primary submissions.

Despite the procedural exclusivity principle set out in O’Reilly v Mackman [1983] 2 AC 237, there is now a strong presumption, based on the rule of law, that a person should be able to rely on any ultra vires arguments (in the Anisminic, public law sense of the term) as a defence to a civil claim, and is not required to mount a positive challenge to the decision at issue under CPR Part 54. This strong presumption is derived from two decisions of the House of Lords: see Wandsworth LBC v Winder [1985] 1 AC 461, and Boddington v British Transport Police [1999] 2 AC 143.

I was invited by the parties to consider two tax cases. In Pawlowski v Dunnington [1999] EWCA 3020, the Court of Appeal (Simon Brown, Aldous and Mantell LJJ) addressed a situation where the taxpayer sought to raise a public law defence to the Revenue’s statutory claim for tax allegedly due as a civil debt. The Court of Appeal rejected the Revenue’s argument that the direction requiring the payment of the unpaid tax could only be assailed in public law proceedings brought by the aggrieved taxpayer. Simon Brown LJ, as he then was, giving the sole reasoned judgment, pointed out that the public law defence was not “a collateral attack” on the Revenue’s decision (para 30), that the Winder case rendered any abuse of process argument extremely difficult (para 31), and that the Winder case also defused the potency of the argument that a public law challenge was a less disadvantageous mode of procedure (para 32). The position would be different if the statute had conferred a right of appeal.

Mr Glen placed considerable reliance on the decision of the Court of Appeal in Beadle v Revenue and Customs Commissioners [2020] EWCA Civ 562; [2020] 1 WLR 3028. In that case, the Revenue issued a partner payment notice (“PPN”) under the relevant statutory scheme. That notice obliged the taxpayer to pay to the Revenue the tax in dispute pending its ultimate determination. The PPN was not challenged in judicial review proceedings. The disputed tax not having been paid, the Revenue issued a penalty notice which was then appealed on the ground that the underlying PPN was unlawful. The First-tier Tribunal and the Upper Tribunal held that they had no jurisdiction to determine the validity of the underlying PPN. The Court of Appeal (Ryder, Moylan and Simler LJJ) upheld the Upper Tribunal’s decision.

Simler LJ (as she then was) gave the sole reasoned judgment. She stated that the general rule was that the validity of an antecedent decision, here the PPN, could be challenged on public law grounds by way of defence, save where the scope for challenging unlawful conduct had been circumscribed by the relevant statutory scheme either expressly or by necessary implication.

Simler LJ concluded on the facts of Beadle that the statutory scheme did indeed preclude such a defence by necessary implication. There were three reasons for that conclusion. The first was the PPN regime has as its express purpose the deterrence of marketed tax avoidance schemes (para 49). As Simler LJ explained in more detail:

“The whole purpose and policy intention of this detailed statutory scheme would be subverted if it were open to a taxpayer like Mr Beadle not only to sit back without challenging the PPN and await penalty notice or enforcement proceedings before seeking to challenge it; but also to retain the disputed tax during the course of a potentially lengthy and convoluted appeals process that would or might follow. In substance although not in form that would amount to a statutory appeal by the back door against the PPN, for which Parliament has expressly not provided, and during the course of which the disputed tax would be retained by the taxpayer, enabling him to enjoy the cash flow benefits that the scheme is designed to remove.”

The second was that the giving of a PPN is not finally determinative of a tax liability: it is an interim decision (para 50). In relation to the tax liability itself, full statutory appeal rights apply. Thirdly, the PPN scheme confers a right on the taxpayer to send written representations to the Revenue.

In my judgment, these three particular features of Beadle fall to be understood cumulatively rather than individually. The only one that provides limited support to Mr Glen’s argument is the third: the right to make representations to Ofcom after a preliminary view is given. On the other hand, Ofcom does not exercise its powers in the context of a statutory scheme which starts from the premise that the individual may well be acting with dubious moral probity. Furthermore, once Ofcom imposes a penalty that, unless challenged, is determinative of the licensee’s obligations.

In my judgment, Mr Glen has fallen a long way short of persuading me that Star China’s presumptive right to defend this claim has been excluded by necessary implication. Mr Glen’s best point is that it does seem rather unattractive for Star China to have challenged the Impartiality Sanction in judicial proceedings, and then, for no apparent reason other than strategic, to have adopted a different approach in relation to the present claim. However, that is no more than a jury point, because the analysis would be the same had the Impartiality Sanction sought to be defended in this private law forum. Moreover, Ofcom is put to little disadvantage in circumstances such as these because there would be nothing to prevent it swiftly issuing proceedings after a notice to pay is issued, and (if so advised) coupling the CPR Part 7 claim with an application brought under Part 24. If this summary procedure were thought, or ruled (as happened here), to be inapposite in any given case, the Part 7 hearing would be listed and heard in the same sort of timescale and an identical manner to proceedings under Part 54. The delays that have afflicted the present case are highly unlikely to be repeated.

Overall, I am completely unpersuaded that I should accede to Mr Glen’s procedural objection. It follows that what I am describing as a preliminary issue must fail.

Mr Stables’ submissions were intricate and sophisticated, and not always easy to pin down and disentangle. No doubt there are overlaps between various of his arguments. Once I had fully understood all the several moving parts of his case, I confess only after having studied the transcript after the hearing and re-reading his skeleton argument, I was completely unconvinced by it.

I have not thought it necessary to summarise Mr Glen’s submissions. This was not because they widely missed the mark; far from it. However, I should mention para 51 of Mr Glen’s skeleton argument which helpfully discerned three overlapping strands in Star China’s amended case. I propose to reformulate his analysis slightly in light of the oral argument. The first strand is Star China’s original argument that after revocation of Star China’s licence it was illogical for Ofcom to impose the same penalties in these three cases to reflect wider or general deterrence alone, given that the provisional decisions had specified sanctions which also included an element for specific deterrence. In the alternative, albeit as still part of this first strand, Ofcom failed to take proper account of the implications of licence revocation. The second strand is “a new argument … that Ofcom was not entitled to impose a financial penalty in pursuit of the regulatory objective of wider deterrence in cases based on fairness and privacy breaches”. The third strand pertains to what are described as the “residual arguments” set out at para 40 of the Amended Defence that a series of considerations were either ignored by Ofcom or not accorded appropriate weight.

I begin by disentangling this second strand from the tapestry, placing it to one side for the time being, and considering the first and third strands in isolation. In my judgment, on that premise the first and third strands are not arguable. As for the first strand, although the present case is not about lack of due impartiality but breaches of the fairness code (in two respects), that can make no difference to the argument based on illogicality simpliciter. The contention that it was illogical not to reduce the sanctions from the levels set out in the provisional decisions is that once the licence was revoked the removal of specific deterrence from the calculus inevitably meant that the sanction would have to be reduced. That contention, if correct, applies to all sanctions regardless of the code breach at issue. Although Mr Glen might have sought to persuade me that the Swift J and CoA judgments are conclusive on this particular aspect, I may say at once that even on counsel’s more measured footing that these decisions are highly persuasive, I see no sensible basis for coming to a different conclusion. Furthermore, there is no merit in the alternative submission that the ramifications of the licence revocation were not fully considered by Ofcom: they plainly were. In any event, this alternative submission collapses into the main submission because it can only have force if Ofcom were somehow required to reduce the sanction indicated in its provisional decision as soon as specific deterrence was no longer in play.

As for the third strand, Mr Stables did not urge this in oral argument. He was right to take that approach. In my view, all the para 40 factors were considered by Ofcom in its comprehensive decisions. The weight to be given to these factors was for Ofcom to decide. No arguable public law point arises.

This leaves the second strand which it is necessary to take in stages. I begin with two introductory points. First, I reiterate that Star China advances no challenge to any aspect of the Broadcasting Code, the Penalty Guidelines or the breach adjudications. Secondly, Mr Stables is correct to place emphasis on para 43 of the CoA decision that whether the same penalty will be necessary and proportionate once specific deterrence has been stripped away will depend on all the circumstances. This reasoning leaves the door open to Mr Stables to argue that if there is a material difference between a due impartiality case and a fairness/privacy case, then all the circumstances may permit, or require, the taking of a different approach to a case in the latter category.

In examining whether there is a fundamental and sharp distinction between regimes relating to standards and fairness/privacy, it is convenient to begin with Mr Stables’ argument that the statutory scheme itself has created such a divide. It is true that before 2003 there were different broadcast media regulators operating under different statutory schemes. However, the CA 2003 abolished these differences, and in my judgment ss. 325 and 326 should be seen as companion provisions. Furthermore, there is a single provision, s. 237, which addresses sanctions across the board. I can discern no differentiation within s. 237 between breaches of the standards code and breaches of the fairness code. They are treated in the same way.

Both the standards code and the fairness code contain “principles” and “rules”. Both codes are illuminated by Ofcom guidance. In terms of the taxonomy, the only distinction between these two codes within the Broadcasting Code is that fairness/privacy is subject to a number of “practices to be followed”, whereas standards, including due impartiality, is not. Contrary to Mr Stables’ submission, I do not think that anything materially turns on the nomenclature. In this loosely characterised hierarchy, I consider that the rule is key, because it is only a breach of a rule which can lead to a sanction. Rules apply across the broad, and broadcasters are advised in various ways as to what will or might amount to a relevant breach. Any differences that there may be are largely of drafting style and of degree rather than of substance. On any view, these are insufficient to amount to the sort of fundamental and sharp distinction that Mr Stables requires for this submission to get airborne.

Looking now at the substance rather than the form, I am able to agree with Mr Stables that in some respects the fairness code has less content and detail than the standards code, that the concept of “due impartiality” in particular is subject to quite lengthy guidance, and that the standards code is subject to a greater body of precedent. Even so, it would be wrong to conclude that fairness and privacy are sketchily defined and that the accompanying guidance and practices to be followed are unhelpful and lacking in content. Such differences as exist between the two codes are ones of degree, style and emphasis rather than of kind. As before, Mr Stables is a considerable distance away from persuading me that there is any sort of sharp and fundamental distinction.

A related question is whether the fairness code contains principles, rules, guidance and practices to be followed which are so unclear, vague, unforeseeable and/or lacking in transparency as to fail the “prescribed by law” criterion in Article 10(2).

As I have already said, the package of provisions relating to privacy reflect the position at common law, and possibly, equity, in a developing jurisprudential landscape. Broadcasters would be subject to these constraints even if Ofcom did not exist. An obligation imposed by the common law is “prescribed by law” despite the absence of a civil code in this jurisdiction and all the uncertainties that surround the common law at its edges. In the context of public interest journalism, the issue which is likely to arise in most cases is whether the intrusion is unwarranted. Broadcasters should know this and act accordingly, if necessary on legal advice. Fairness, on the other hand, is not a free-standing common law requirement, and without what I am calling the package of provisions in the Broadcasting Code broadcasters would have much less on which to base potentially difficult decisions. Nonetheless, this package of provisions is, in my judgment, sufficiently detailed, user-friendly and clear to enable a broadcaster to understand the issues with which it must engage in order to reach a code-compliant decision. Furthermore, in this context there is no material difference between Sections 5 and 7 of the Broadcasting Code when it comes to a concept such as “due impartiality”, and no one has sought to contend that section 5 is not “prescribed by law”.

A further consideration is that a financial penalty is almost always reserved for clear cases of serious breach. There may be room for argument around the margins whether a particular broadcast amounted to an unwarranted infringement or was unfair. If it were Ofcom’s policy to impose a financial penalty in cases where a broadcaster acting reasonably just crossed the line, accepting the obvious consideration that reasonable people may come to different conclusions in hard cases, I would begin to apprehend a problem. But Mr Glen informed me that the sanctions regime is applied to clear and obvious cases which could properly be regarded as serious. In my judgment, the instant cases are paradigm examples of this, and Mr Stables advanced no submission to the contrary.

A connected argument advanced by Mr Stables is that alleged breaches of the fairness code are far more fact-sensitive than breaches of the standards code. I cannot accept this argument; it amounts to no more than an assertion. Axiomatically, each and every case turns on its own facts, and I fail to see how and why a due impartiality complaint, for example, is inherently less fact-sensitive than a privacy complaint. Nor does anything turn on the point that a privacy complaint must be made by the person affected. The reason for that is obvious: without her or his consent, the investigation may well amount to a further breach of privacy. This is a factual distinction which makes no difference to the underlying principle.

If fact-sensitivity applies to all Ofcom complaints, as I consider it does, that wholly undermines Mr Stables’ follow-on arguments that in fairness and privacy cases, as opposed to standards cases, there can be no scope for re-application of Ofcom’s reasoning in any case to another, and that the concepts of wider deterrence and “chilling effect” operate differently in the type of case presently under consideration. As Mr Glen submitted, and I agree, the concepts of wider deterrence and “chilling effect” apply in the same way and across the board.

Mr Glen was right to submit that wider deterrence always operates at a high level of generality. Any broadcaster with a reasonable apprehension of its obligations under the Broadcasting Code will understand that it is not so much the facts of any individual case that matter but the principles that emerge and the messages that flow both from what the Code says and from Ofcom’s application of it to any given factual pattern. Any such broadcaster will understand, reading Ofcom’s decisions in the present case, that serious and repeated breaches of the Code perpetrated by it or anyone else may risk equivalent penalties. It will understand why Ofcom regarded the present cases as examples of serious rather than minor breaches: these cases give it a clear steer. Finally, any broadcaster will also understand that for this purpose it makes no difference in the context of its public interest journalism whether any serious lapse relates to the standards code or the fairness code.

I also accept Mr Glen’s connected argument that any sanction that Ofcom imposes on a broadcaster (I would add, for any breach of the Broadcasting Code) may constitute a significant interference with freedom of expression, both to the broadcaster and to the viewer, and therefore requires a convincing justification in the individual circumstances. Ofcom identified such a convincing justification in its Sanctions Decisions in these three cases.

As for Mr Stables’ arguments about “chilling effect”, this in my judgment should be conceptualised as a facet of wider deterrence albeit with a potential negative connotation. That is a reflection of the fact that if too much emphasis is given to wider deterrence in any given case, its impact in terms of the level of sanction imposed may be disproportionate and the effect “chilling”. If, on the other hand, Ofcom finds a convincing justification for the level of financial penalty in the circumstances of the case at issue, the correct analysis must be either that there is no “chilling effect” at all, or that any such vice is outweighed by the public interest in upholding broadcasting standards which vouchsafe the values of fairness and privacy. I repeat the important point that Ofcom has found Star China to have perpetrated serious and repeated breaches. There will not be any “chilling effect” on the activities of other broadcasters unless, at the very least, their failures can fairly be characterised as serious. It is right that other broadcasters are deterred to that extent.

Mr Stables’ reliance on Eady J’s reasoning in Mosley (see §37 above) is, I consider, misplaced. Eady J was addressing the issue of exemplary (i.e. deterrent) damages in the context of a private law privacy claim. He was making the point that exemplary damages would usually have to be (disproportionately) high in this context to have any deterrent effect: it follows that they ordinarily should not be awarded. This reasoning has no application to the present context of statutory regulation. Further, any penalty imposed is not paid to a private litigant but to HM Treasury.

Mr Stables’ second series of submissions (see §83ff above) should in my view be answered as follows.

The argument that wider deterrence somehow required the imposition of only one penalty rather than three has no appeal. Not merely were all three breaches serious viewed on an individual basis, it was highly relevant that they occurred in connection with three complainants rather than one, and that in two of the cases there was repetition. Although Star China itself could no longer be deterred, the message sent to other broadcasters was clear: repeated or serial breaches will be treated more severely than a singleton breach. If the position were otherwise, a broadcaster might be forgiven for thinking that it does not matter how many times a programme is repeated (in the cases of Humphrey and Gui, the repeat was not the same as the original programme) because the sanction would always be the same. That makes no sense.

I am similarly unpersuaded by Mr Stables’ argument based on retrospectivity. If I understand the argument correctly, it is contended that Star China did not know that Ofcom would “reason by way of repetition” until June 2020 at the earliest. However, Ofcom was not basing itself on reasoning which was not clearly flagged in the Penalty Guidelines, and it was or ought to have been obvious to Star China that two or more breaches would be regarded more seriously than just one.

Star China’s final point under this rubric is that had all five programmes been considered together, as did happen in relation to the impartiality complaint, the sanction would have been limited to £250,000. There is some superficial force in this contention, but I reject it. As the Amended Reply points out, and Mr Glen repeated in his skeleton argument, the impartiality complaint related to CGTN’s coverage of the mass protests in Hong Kong over a three-month period in late 2019. Ofcom therefore regarded these as fit to be investigated on one occasion as part of a sequence of programmes on the same theme. On the other hand, the Humphrey, Gui and Cheng Sanction Decisions concerned individual complaints in unconnected programmes which Star China had broadcast in 2013/4, 2016/7 and 2019 respectively. Inevitably, they were subject to separate investigations and adjudications. The Amended Reply avers, and I agree, that the financial penalty was “calibrated in each case in light of the seriousness of the breach in question and the corresponding need to ensure that the financial penalty imposed for the relevant breach adequately promoted the legitimate objective of wider deterrence”.

Mr Stables did not advance a more granular submission, by analogy with the criminal law, along the lines that each penalty should not have been the same. In such circumstances, it is unnecessary for me to analyse this in any detail. All I need say is that if there were any force in the contention that the subsequent penalties should have been reduced for totality (a criminal law concept which does not feature in the Penalty Guidelines and in any event applies more clearly to a situation where a court is sentencing a defendant for various offences on the same occasion, rather than on successive occasions), that could be counterbalanced if not outweighed by the possibility of higher sanctions in the subsequent cases to reflect the aggravating factor of previous adverse adjudications. I touched on this aspect during the hearing, at page 143 of the transcript, lines 8-11.

Thus far, the focus has been solely on wider or general deterrence. In my judgment, although in a case such as the present this represented the most compelling policy justification for and “central objective” in imposing these sanctions, it was not the only factor in play. Cases of serious breach should attract a sanction containing a quasi-punitive element, if for no other reason than to mark the seriousness of the breach.

Finally, I have stood back from this case and asked myself whether, applying the close and penetrating analysis required in the context of a narrow margin of appreciation, an overall sanction of £300,000 was simply too high, and therefore disproportionate, particularly in the context of a broadcaster operating in a different social and political culture. Again, I touched on this last aspect during the hearing: see page 133 line 19 to page 134, line 1. Ultimately, however, the different social and political culture is not relevant because it is the viewpoint of Ofcom that matters, not that of a third party editor in China or any actual or hypothetical Chinese regulator. Ofcom must apply the same standards to every broadcaster. What is clear to me is that Ofcom has conducted a thorough investigation into these three cases, and that its Sanction Decisions in all three cases are compellingly reasoned and detailed, properly according weight to Article 10(1) of the Convention. The requirements of wider or general deterrence in the context of serial, serious breaches of the Code supply the compelling justification mandated by Article 10(2). Mr Stables asserted more than once that these sanctions were “massive”, but he did not undertake a comparative analysis of Ofcom’s precedents nor was I told anything about Star China’s turnover etc. Overall, I am quite unable to conclude that these decisions, whether taken individually or in combination, were clearly wrong.

This claim succeeds. Ofcom is entitled to recover the sum of £300,000 as a statutory debt.