FIRST SECTION

DECISION

Application no . 26448/12 Jon GAUNT against the United Kingdom

The European Court of Human Rights (First Section), sitting on 6 September 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President, Ledi Bianku, Linos-Alexandre Sicilianos, Paul Mahoney, Aleš Pejchal, Robert Spano, Pauliine Koskelo, judges, and Renata Degener , Deputy Section Regist rar ,

Having regard to the above application lodged on 2 May 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the third party intervention submitted by Liberty,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Jon Gaunt, is a British national, who was born in 1961 and lives in Leamington. He was represented by Mr K. O ’ Rourke of Howe & Co Solicitors, a lawyer practising in Brentford.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant was a presenter with Talksport, a speech-based radio station. He presented a programme which covered a range of news issues and he was well-known for his “combative and hard-hitting” style with interviewees.

1. The interview with M.S.

5. On 7 November 2008 the applicant conducted a live interview with M.S., the Cabinet Member for Children ’ s Services for Redbridge London Borough Council. The interview concerned the council ’ s proposal to ban smokers from becoming foster parents on the ground that passive smoking could harm foster children. The applicant had spent some of his childhood in the care system and on the morning of the interview an article written by him on the subject was published in The Sun newspaper. The article was headlined “Fags didn ’ t stop my foster mum caring for me”. The following extract is relevant to the present proceedings:

“Tonight in Britain more than 60,000 children won ’ t have a special person to tuck them in at night, read them a story or take an interest in what happened during their day at school.

Meanwhile, the zealots who dreamed up this policy will sleep easy on their futons because they are putting the ‘ health needs ’ of kids in care first.

This is the same warped logic that condemns black children to a life in care rather than let them be fostered by white couples.

The same master race philosophy that forbids fat couples from adopting.

The SS – that is social services by the way – think that the risk from passive smoking is more dangerous to a child than them being left to rot in a children ’ s home.

They should understand that most parents realise the dangers and wouldn ’ t smoke in an enclosed space with children around.

Foster parents are no different.

The woman who rescued me from care, and undoubtedly turned me around as a child, smoked like a chimney but she was also a hospital matron.

She lavished love, care and, most importantly, discipline on me.

Without her I wouldn ’ t be where I am today...

Today it ’ s Redbridge but, unless we all make a noise now, tomorrow it will be a national policy and thousands more children will fall victim to the health and safety Nazis and be left alone in a care home.”

6. Prior to the applicant ’ s interview with M.S., he was warned by Talksport that the subject might be emotive for him. In fact, in the hours before the interview programming staff advised him on three occasions to remain calm and allow M.S. to put his point of view across.

7 . The applicant ’ s radio interview with M.S. lasted just over ten minutes. In the proceedings which followed, the President of the Queen ’ s Bench Division summarised the interview in the terms set out below:

“The first part of the interview was reasonably controlled, giving [M.S.] a reasonable opportunity to explain his council ’ s policy. The claimant then asked him about existing foster parents who only ever smoke in the open air. [M.S.] explained that the council would not drag children away from existing foster parents, but that such smokers would not be used in the future. The trouble was that such people do smoke in the house. Asked by the claimant how he knew this, [M.S.] explained that there were Redbridge councillors who say they never smoke in the building, but in fact do so. To which the claimant said ‘ so you are a Nazi then? ’ When [M.S.] began to protest, the claimant again said ‘ no you are, you ’ re a Nazi ’ . [M.S.] protested vehemently that this was an offensive and insulting remark, and the interview then degenerated into an unseemly slanging match. When [M.S.] protested that the insult, as he saw it, was probably actionable, the claimant challenged him to ‘ take action if you wish ’ , but then said ‘ you ’ re a health Nazi ’ . The slanging match continued with the claimant asking [M.S.] if he wanted to carry on with the interview, and [M.S.] replying that he would love to if the claimant would just shut up for a minute. It emerged that the claimant had himself been in care. He referred to his column in The Sun that day and again called [M.S.] a ‘ health Nazi ’ and then ‘ a Nazi ’ . The heated shouting continued with the claimant doing much of the talking. [M.S.] 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. The claimant regarded this as an offensive insult to his own upbringing and called [M.S.] ‘ 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.

It is scarcely possible to convey the general and particular tone of this interview in a short written summary, and the full transcript is in this respect incomplete. You have to hear it for its full impact. As we have said, it degenerated into a shouting match from the point when the claimant first called [M.S.] ‘ a Nazi ’ . That first insult was not said with particular vehemence, but ‘ you ignorant pig ’ was said with considerable venom and was we think gratuitously offensive. The interview as a whole can fairly be described as a rant.”

8 . Within ten minutes of the end of the interview, the applicant apologised to the listeners, accepting that he did not “hold it together”, that he had been “unprofessional” and that he had “lost the rag”. One hour after the end of the broadcast, he made a further apology in the following terms:

“The Councillor wants me to apologise for calling him a Nazi. I ’ m sorry for calling you a Nazi.”

9. The applicant was suspended from his programme by Talksport the same day and an internal investigation was launched. Talksport subsequently terminated his contract wi thout notice by letter dated 17 November 2008.

2. The Ofcom investigation

10. Following the broadcast, Ofcom, the independent regulator and competition authority for the United Kingdom communications industries, received fifty-three complaints about the applicant ’ s conduct. Some of the complaints concerned the manner in which the interview had been conducted, as the complainants believed that it was an “unprovoked personal attack”, and that the applicant was “oppressive”, “intimidating”, and “shouting like a playground bully”. Other complainants were offended by the word “Nazi”.

11. Ofcom launched an investigation into the matter under the Broadcasting Code. In its response to Ofcom, Talksport stated that it regretted what had happened and accepted that the interview “fell way below the acceptable broadcasting standards which it expected and demanded”. It totally accepted and regretted that the applicant ’ s language had been offensive and that the manner in which the interview was conducted had been indefensible.

12 . In a report published on 8 June 2009, Ofcom concluded that the broadcast had breached Rules 2.1 and 2.3 of the B roadcasting Code (see paragraph 30 below) as it fell short of the generally accepted standards applied to broadcast content and included offensive material which was not justified by the context. In reaching this conclusion, Ofcom took into account the right of broadcasters to hold opinions and impart information without interference; the fact that Talksport specialised in a genre of hard ‑ hitting talk radio which could at times prove uncomfortable and challenging listening; the fact that the broadcast of “offensive” material was not in itself a breach of Ofcom ’ s code as the Code did not prohibit the broadcasting of offensive material; the extremely aggressive tone of the applicant ’ s interview style on this occasion; and the seriousness which the broadcaster attached to the incident, as demonstrated by its prompt investigation and the applicant ’ s two on-air apologies. Nevertheless, it found that Talksport ’ s compliance procedures did not appear robust enough to deal with problematic material being broadcast live. Moreover:

“the language used by Jon Gaunt, and the manner in which he treated [M.S.], had the potential to cause offence to many listeners”

and

“the offensive language used to describe [M.S.], and what would be considered to be a persistently bullying and hectoring approach taken by Jon Gaunt towards his guest, exceeded the expectations of the audience for this programme, despite listeners being accustomed to a robust level of debate from this particular presenter. Even taking into account the context of this programme such as the nature of the service, the audience expectations and the editorial content, Ofcom did not consider that this was sufficient justification for the offensive material. The broadcaster therefore failed to comply with generally accepted standards in breach of Rules 2.1 and 2.3 of the Code.”

13. No sanction or penalty was imposed either on Talksport or the applicant other than the publication of the decision.

3. Domestic proceedings

14. The applicant was granted leave to judicially review Ofcom ’ s decision on the ground that it disproportionately interfered with his freedom of expression and infringed his rights under Article 10 of the Convention. Liberty intervened in the proceedings to support the applicant ’ s claim.

15 . Although Ofcom ’ s decision was against the broadcaster, which had acknowledged that there had been a breach of the Code, the Divisional Court judge noted that the parties had (in his view, rightly) accepted that the applicant had standing to challenge it because it “enunciates an inhibition capable of affecting his unrestrained freedom to conduct radio interviews in the way in which he did on this occasion”.

16 . As the applicant did not contend that the Broadcasting Code itself violated Article 10, the narrow question for the court to address was whether Ofcom ’ s findings had disproportionately interfered with the applicant ’ s rights under Article 10 of the Convention. The judge noted at the outset that the unchallenged statutory basis for Ofcom ’ s finding meant that it was prescribed by law and pursued the legitimate aim of the protection of others. With regard to the question of necessity, the judge accepted that as the broadcast was live the applicant had had no opportunity to edit or correct what he said once he had said it. Moreover, the subject of the interview was political and controversial and the person being interviewed was an elected politician who would expect to receive and tolerate a “rough ride”. It was therefore an interview where the applicant ’ s freedom of expression should be accorded a high degree of protection. Nevertheless, his freedom of expression did not extend to gratuitous, offensive insult or abuse without contextual content or justification. Applying these principles and giving due weight to Ofcom ’ s judgment, the judge considered that to call someone a “Nazi” was capable of being highly insulting. It accepted, however, that in the present case the first use of the word could have had some contextual justification, especially in light of the applicant ’ s use of it in his newspaper article, and could therefore be seen as an emphatic and pejorative assertion that M.S. was, in the matter of smoking and fostering children, one who imposes his views on others. Nevertheless, the court noted that after the applicant used the word, the interview degenerated and the applicant ’ s conduct of it became increasingly abusive, hectoring and out of control. His subsequent use of the word “Nazi” undoubtedly assumed the nature of undirected abuse and the expression “ignorant pig” was said “with such venom as to constitute gratuitous offensive abuse”. As a consequence the later part of the interview became abusive shouting which served to convey to listeners no real content at all.

17 . The judge therefore concluded that, taking full account of the applicant ’ s Article 10 rights, Ofcom was justified in its conclusion. The broadcast was highly offensive to M.S and well capable of offending the broadcasting public. Moreover, its offensive and abusive nature was gratuitous, having no factual content or justification. As a consequence, the judge accepted that Ofcom ’ s finding constituted no material interference with the applicant ’ s freedom of expression at all. In this regard, he found it relevant, but not decisive, that no sanction or penalty was imposed on the broadcaster, let alone the applicant.

18 . The applicant appealed to the Court of Appeal. With regard to the applicant ’ s standing, the court reiterated that it was “accepted that he had locus standi to [challenge Ofcom ’ s finding], unsurprisingly since it is obviously possible that the finding may have had an adverse impact on him and on his reputation as a journalist”.

19 . The Court of Appeal accepted that there were a number of facts which supported the proposition that a tribunal should be slow to hold that what was said in an interview offended the p rovisions of paragraphs 2.1 and 2.3 of the Code: first, the interview in question was concerned with an issue of general public interest; secondly, the interview was a live discussion and was not pre-recorded; thirdly, the applicant was well known to be a hard-hitting and robust interviewer; and fourthly, the interviewee was a politician and he made no subsequent complaint. However, these factors did not mean that the interview could not be susceptible to a finding that it fell foul of paragraphs 2.1 and 2.3 of the Code.

20 . In considering whether or not th e interview offended paragraphs 2.1 and/or 2.3 the court considered it as a whole and in its context. It accepted that it would be wrong to focus too hard individually, let alone exclusively, on specific insults such as “health Nazi” and “ignorant pig”, the applicant ’ s hectoring tone and bullying manner, his persistent interruptions, his failure to let M.S. answer questions, or his treating one or more innocuous comments by M.S. as an insult. All those points had to be considered, 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.

21 . Nevertheless, the court concluded that the combination of the five concerns identified in the preceding paragraph rendered it impossible to accept that Ofcom ’ s finding, which contained no sanction other than the publication of the decision, represented an interference with the applicant ’ s rights under Article 10 of the Convention. Although the topic covered was of public interest, this point was of limited force in the context of an interview where the interviewee was not permitted to express his views or reasons. Moreover, while the interview was broadcast live, the applicant was not an inexperienced interviewee being provoked in the heat of the moment; rather, he was an experienced interviewer who had plainly decided to embark on a particularly aggressive assault on M.S. and his opinions. The fact that his style of interviewing was well known did not render the interview acceptable; nor did M.S. ’ s failure to complain. The court therefore concluded that Ofcom was right to find that Talksport had infringed paragraphs 2.1 and 2.3 of the Code.

22 . Finally, with regard to the severity of the sanction, the court noted that Ofcom could have decided that the complaint had been resolved instead of finding that there had been a breach of the Code. However, it had rejected this option since this was not a case of inadvertent error, as Talksport had allowed the interview to continue for many minutes after it plainly got out of control, and there had been two previous findings against Talksport where producers had lost control of an interview or discussion.

23 . That being said, having concluded that Ofcom rightly found that Talksport had infringed paragraphs 2.1 and 2.3 of the Code, the court found it impossible to contend that Ofcom ’ s decision to impose no other sanction than the publication of the report “even got near being disproportionate”. Furthermore, the court noted that from the point of view of the applicant, he had been dismissed before Ofcom ’ s finding was published and there was no suggestion that he had lost work or that his reputation as a journalist had been damaged.

24. The Court of Appeal therefore dismissed the applicant ’ s appeal.

25. The applicant applied for leave to appeal to the Supreme Court. The Supreme Court refused permission in a decision dated 1 November 2011, sent to the applicant under cover of a letter dated 2 November 2011.

B. Relevant domestic law and practice

26. Broadcasting standards are governed by the Communications Act 2003 (“the 2003 Act”), which requires them to be implemented, supervised and enforced by Ofcom.

27. Section 3(2)(e) of the 2003 Act places a duty on Ofcom to secure the application by all television and radio stations of standards that “provide adequate protection to members of the public from the inclusion of offensive and harmful material” in broadcast programmes.

28. Section 319 of the 2003 Act obliges Ofcom to set up a “standards code” for radio and television services which is “calculated to secure” the so-called “standards objectives”. These objectives include, at section 319(2)(f), that “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material”. Ofcom is also obliged by section 324 of the 2003 Act to “establish procedures for handling and resolution of complaints about the observance of [those] standards”.

29. This code, known as the Broadcasting Code (“the Code”), states in terms that it has been drafted in the light of the right to freedom of expression as expressed in Article 10 of the Convention, which encompasses a broadcaster ’ s right to disseminate, and an audience ’ s right to receive, creative material, information and ideas without interference, but subject to restrictions prescribed by law and necessary in a democratic society.

30 . Paragraph 2.1 of the Code provides that generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive materials. Paragraph 2.3 of the Code states that, in applying generally accepted standards, broadcasters must ensure that material which may cause offence is justified by the context. Such material may include, among other material, offensive language.

31 . Section 111 of the Broadcasting Act 1996 precludes Ofcom from entertaining a complaint of unfair treatment unless made by the person affected or by a person authorised by him to make the complaint for him.

32 . Pursuant to sections 109 – 111 of the Broadcasting Act 1990, where there has been a breach of the Code Ofcom could take a range of possible measures: publish its finding indicating that a breach of the Code has taken place; direct that the broadcaster transmits a correction or a statement of Ofcom ’ s finding; impose a financial penalty on the broadcaster; or shorten, suspend or revoke the broadcaster ’ s licence.

COMPLAINT

33. The applicant complained under Article 10 of the Convention that Ofcom ’ s findings amounted to a disproportionate interference with his freedom of expression.

THE LAW

A. The parties ’ submissions

1. The Government

34. The Government accepted that the applicant could be directly affected by Ofcom ’ s finding, even though he was not the person at whom it was expressly aimed. Consequently, they did not contest that he could be characterised as a “victim” for the purposes of the present proceedings.

35. The Government did, however, submit that the application was manifestly ill-founded and therefore inadmissible under Article 35 § 3 (a) of the Convention. Although they did not contest that the Ofcom finding was capable of constituting an interference with the applicant ’ s Article 10 rights, they submitted that in reality that interference was very slight and the mere publication of the finding, without any further penalty or sanction for either the broadcaster or the applicant, was unquestionably proportionate in the circumstances. In this regard, the Government noted that the termination of the applicant ’ s contract pre-dated Ofcom ’ s finding and any suggestion that it was prompted by Talksport ’ s belief that there had been a breach of the Code was entirely speculative.

36. Furthermore, the Government argued that the applicant could not rely on the high value ascribed to political speech or debates on matters of general public interest since the specific aspects of the interview with which the finding was concerned were not political comment or opinion, but rather gratuitous and offensive slurs and abuse. Similarly, while it was well ‑ established that the limits of acceptable criticism were wider as regards a politician than a private individual, it was the Government ’ s contention that this did not constitute an open-ended invitation to offend or insult.

37. In the present case, Ofcom ’ s finding had not been based on the language used by the applicant or the tone in which it was used: rather, the finding was based on the cumulative offensive impact of the broadcast as a whole on the listening audience. In determining its “offensiveness”, the Government argued that considerable weight should be given to Ofcom ’ s expert judgment on what constitutes generally acceptable standards on the inclusion of offensive content in a national radio broadcast as it has detailed knowledge of programme content across the range of broadcasting in the United Kingdom, detailed experience of the difficult balance to be struck between offensive content and a broadcast ’ s context, and day to day experience of audience expectation and reactions.

2. The applicant

38. The applicant argued that there had been a n interference with his Article 10 rights. First, he contended that his contract had been terminated by Talksport because they anticipated that there had been a breach of the Code and therefore took swift and decisive action in an attempt to persuade Ofcom to declare that the matter had been resolved (as opposed to finding that there had been a breach of the Code). Secondly, he submitted that Ofcom ’ s finding was capable of having a “chilling effect” on his freedom of expression and that of other presenters. As broadcasters would be anxious about making themselves liable to fines and other sanctions, they might be reluctant to use “non-mainstream” presenters such as the applicant. This was demonstrated by the fact that, since the Ofcom ruling, the applicant had only found presenting work on an internet radio station which was not regulated by Ofcom.

39. The applicant accepted that Ofcom had been pursuing a legitimate aim but argued that the interference with his freedom of expression had been disproportionate on the facts. The applicant was a journalist interviewing an elected politician about issues of legitimate public importance, namely a political decision to limit foster carers on public health grounds, on a radio programme designed to encourage strong exchanges of opinion, or even arguments, on public interest issues. The exchange in question had been heated but could not properly be described as the applicant gratuitously insulting M.S. in response to innocuous comments from him. Even if the Divisional Court had been correct to describe the interview as a “rant”, the applicant argued that it was a political rant on a topic of the most acute public concern and importance.

40. In light of the above considerations, the applicant questioned the basis on which Ofcom could legitimately find that the broadcast had been offensive. In particular, he argued that the words used during the interview were not of a kind likely to cause serious offence to the listener, and the fact that he “lost the rag” did not of itself justify an interference as tone could not render seriously offensive words which were not seriously offensive in substance. The applicant therefore submitted that Ofcom had in fact based their decision on the alleged “unfair treatment” of M.S. during the interview, but had “dressed it up” in the guise of “harm and offence” to the audience since, pursuant to section 111 of the Broadcasting Act 1996, a “fairness” complaint could only be entertained by Ofcom if it was made by the affected person (see paragraph 31 above).

3. The third-party intervener

41. Liberty sought to remind the Court that freedom of expression on matters of political controversy was entitled to the highest level of legal protection, and that criticism of politicians could be exaggerated, provocative or personal while remaining firmly within Article 10 § 1 of the Convention. Furthermore, restrictions on free speech based on “offensiveness” required the closest scrutiny given their vagueness and potential breadth. Even in relation to gratuitous abuse directed to individuals, the Court has repeatedly held that interferences are not justified where they form part of the discussion of a broader topic of public interest. Finally, they submitted that an important part of the context in assessing broadcast speech was the extent to which it was in response to comments made by others.

B. The Court ’ s assessment

1. General principles

42. An interference with the right to freedom of expression will contravene Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and, in addition to being proportionate, is “necessary in a democratic society” for achieving such aims (see, for example, The Sunday Times v. the United Kingdom (no. 1) , 26 April 1979, § 45, Series A no. 30 and Ärztekammer für Wien and Dorner v. Austria , no. 8895/10 , § 53 , 16 February 2016) .

43. The general principles for assessing the necessity of an interference with the exercise of freedom of expression were recently restated in Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’ . As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘ necessary ’ , within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’ . The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”

44. As regards the level of protection, ther e is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in two fields, namely political speech and matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; Axel Springer AG v. Germany [GC], no. 39954/08, § 90, ECHR 2012; and Morice v. France [GC], no. 29369/10, § 125, ECHR 2015 ). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest ( Bédat v. Switzerland , cited above, § 49).

46. Furthermore, the Court has accepted that journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation (see, for example, Prager and Oberschlick v. Austria , 26 April 1995, § 38, Series A no. 313 and Thoma v. Luxembourg , cited above, §§ 45 and 467). Therefore, a degree of hostility (see E.K. v. Turkey , no. 28496/95, §§ 79-80, 7 February 2002, and Morice , cited above, § 125) and the potential seriousness of certain remarks (see Thoma v. Luxembourg , no. 38432/97, § 57, ECHR 2001-III and Morice , cited above, § 125) do not obviate the right to a high level of protection, given the existence of a matter of public interest (see Paturel v. France , no. 54968/00, § 42, 22 December 2005, and Morice , cited above, § 125). Nevertheless, the Court has recognised that a clear distinction must be made between criticism and insult and that the latter may, in principle, justify sanctions, even where a matter of general public interest is concerned (see, for example, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, §§ 67 and 72, ECHR 2011).

2. Application of the general principles to the present case

(a) Interference

48. The Government have accepted that Ofcom ’ s finding was capable of interfering with the applicant ’ s freedom of expression.

49 . Notwithstanding the Government ’ s concession, the Court notes that the applicant ’ s complaint to this Court is directed entirely at Ofcom ’ s finding, which was not aimed at him, but at his employer. Moreover, the only action that Ofcom decided to take against Talksport was the publication of the finding, which was the most lenient measure available to them once they had found a breach of the Code (see paragraph 32 above). Consequently, Ofcom did not sanction or penalise the applicant for his conduct of the interview with M.S., nor did they subject to any restrictions or formalities his right to express himself in future, either on the radio or through any other medium. Whilst it is true that Talksport terminated the applicant ’ s contract of employment following his interview with M.S., this preceded the publication of Ofcom ’ s finding by some six months and cannot, therefore, be attributed to the finding. Furthermore, the applicant did not support with evidence his claim that he has been unable to find work since the publication of the finding.

50. Nevertheless, the Court notes that in considering the applicant ’ s standing to challenge Ofcom ’ s finding, the domestic courts offered some support for his assertion that publication of the finding was capable of having some “chilling effect” on his exercise of his freedom of expression. The Divisional Court accepted that the finding “enunciates an inhibition capable of affecting [the applicant ’ s] unrestrained freedom to conduct radio interviews in the way in which he did on this occasion” (see paragraph 15 above). The Court of Appeal further found that it was “obviously possible that the finding may have had an adverse impact on him and on his reputation as a journalist” (see paragraph 18 above).

51. The Court would not, therefore, exclude the possibility that Ofcom ’ s finding was at least capable of interfering with the applicant ’ s freedom of expression. However, in light of the reservations identified at paragraph 49 above, it considers that any such interference was minimal at best.

(b) Prescribed by law

52. The applicant has not expressly asserted that the alleged interference was not prescribed by law. He has suggested that the finding was in substance based on the “unfair treatment” of M.S., but was “dressed up” in the guise of “harm and offence” to the audience, since Ofcom could only entertain a fairness complaint if it was made by the person affected. However, this complaint was not advanced before the domestic courts, and in any case there is nothing in the finding to suggest that it was based on anything other than the “harm and offence” the broadcast could potentially have caused to the audience (see paragraph 12 above).

53. Consequently, the Court is satisfied that any interference with the applicant ’ s rights under Article 10 was “prescribed by law”.

(c) Legitimate aim

54. The applicant does not dispute that any interference was in pursuit of a legitimate aim, namely the protection of others.

(d) Necessity

55 . In the present case, the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law. In considering whether there had been a breach of the Code, Ofcom took into account the right of broadcasters to hold opinions and impart information without interference; the fact that Talksport specialised in a genre of hard-hitting talk radio which could at times prove uncomfortable and challenging listening; the fact that the broadcast of “offensive” material was not in itself a breach of Ofcom ’ s Code as it did not prohibit the broadcasting of offensive material; the extremely aggressive tone of the applicant ’ s interview style on this occasion; and the seriousness which the broadcaster attached to the incident, as demonstrated by its prompt investigation and the applicant ’ s two on-air apologies (see paragraph 12 above).

56. Furthermore, in considering the applicant ’ s Article 10 challenge to the Ofcom finding, both the Divisional Court and the Court of Appeal expressly took into account the fact that as the broadcast was live the applicant had had no opportunity to edit or correct what he said once he had said it; the fact that the subject of the interview was political and its style controversial; and the fact that the person being interviewed was an elected politician who would expect to receive and would tolerate a “rough ride”. Both courts therefore emphasised that this was a case in which the applicant ’ s freedom of expression should be accorded a high degree of protection (see paragraphs 16 and 19 above). Nevertheless, having regard to the highly offensive nature of the interview when taken as a whole, the domestic courts agreed that Ofcom had been justified in its conclusion (see paragraphs 17 and 21 above). The Court of Appeal further observed that in the circumstances it was impossible to contend that Ofcom ’ s decision to impose no other sanction than the publication of the report “even got near being disproportionate” (see paragraph 23 above).

57. Given that the domestic authorities fully addressed the applicant ’ s rights under Article 10 of the Convention in accordance with the criteria laid down in the Court ’ s case-law, strong reasons will be required before the Court will substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom , no. 39401/04, §§ 150 and 155, 18 January 2011; Palomo Sánchez and Other s, cited above, § 57; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 , § 107, ECHR 2012; and, more recently, Haldimann and Others v. Switzerland , no. 21830/09, §§ 54 and 55, ECHR 2015).

58. In this regard, the applicant points to the fact that his interview was with a politician and involved political speech and/or a matter of general public importance. The Court would readily agree with the applicant, as do the Government, that, as a consequence, there was little scope for any restriction on his freedom of expression, even if it be accepted that recourse was had to exaggeration, provocation and hostility. However, as noted above, the national courts took this properly into account in assessing the applicant ’ s Article 10 complaint, before concluding that his freedom of expression did not extend to what had amounted to gratuitous, offensive insult and abuse without contextual content or justification; “hectoring” and “bullying”; and a “particularly aggressive assault on M.S. and his opinions” (see paragraphs 16, 17, 20 and 21 above). In the words of the Divisional Court, as a result of the abusive language and venomous tone employed by the applicant, the later part of the interview became abusive shouting which served to convey to listeners no real content at all. Even taking full account of the applicant ’ s Article 10 rights, so the Divisional Court concluded, the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification (see paragraphs 16-17 above). The Court of Appeal, for its part, noted that, although the topic covered was of public interest, the political figure interviewed, namely M.S., had not been permitted to express his views or reasons (see paragraph 21 above).

59. It is clear from the Court ’ s case-law that such a restriction is reconcilable with freedom of expression as protected by Article 10 of the Convention. In the recent case of Bédat v. Switzerland (cited above, § 64) the Court accepted that it was not enough that the subject of an article be in the public interest; the content must also be capable of contributing to the debate on the issue concerned. Moreover, while the Court has accepted that a degree of exaggeration, or even provocation, is permitted, it has repeatedly held that this does not extend to “manifestly insulting language” ( Mamère v. France , no. 12697/03, § 25, ECHR 2006 ‑ XIII) or a “gratuitous personal attack” (see, for example, Oberschlick v. Austria (no. 2) , 1 July 1997, § 33, Reports of Judgments and Decisions 1997 ‑ IV; and Lopes Gomes da Silva v. Portugal , no. 37698/97, § 34, ECHR 2000 ‑ X). In practice, however, provided that an author could offer an objective explanation, the Court has been slow to find that personal comments made in the context of a debate on a matter of general public importance constituted a “gratuitous personal attack” ( Lopes Gomes da Silva v. Portugal , cited above, § 34), even where an “aggressive tone” was employed ( De Haes and Gijsels v. Belgium , 24 February 1997, § 48, Reports of Judgments and Decisions 1997 ‑ I).

60. In the Court ’ s view, the content of the interview with M.S. certainly came close to being a “gratuitous personal attack” without any appreciable contribution to the subject being discussed. However, it is also true that the subject matter of the interview was – in principle at least – a matter of general public importance; the interviewee was a politician, who was expected to display a greater degree of tolerance to criticism (see paragraph 45 above); the comments were made spontaneously during a heated debate on a live broadcast (see Fuentes Bobo v. Spain , no. 39293/98, § 48, 29 February 2000); the interview was broadcast on a programme which owed its popularity to the exaggeration and provocation featured on it (see, for example, Mamère v. France , cited above, § 25) ; and at least some of the comments made by the applicant could have had some contextual justification (see paragraph 16 above).

61. In such a case, in deciding what is capable of offending a broadcast audience, weight must be given both to the opinion of the domestic courts and, to an even greater extent, to that of a specialist regulator of broadcast standards – such as Ofcom – which has considerable experience of balancing the parameters of potentially offensive content with the fluctuating expectations of contemporary radio audiences in the Contracting State.

62. This is especially so in a case such as the present, where the conclusions of both Ofcom and the domestic courts were not based on any single aspect of the interview, such as the language used, or the applicant ’ s aggressive tone, but rather the impact of the interview taken as a whole. As the Divisional Court observed, although it was “scarcely possible to convey the general and particular tone of this interview in a short written summary” since “it degenerated into a shouting match”, “[t]he interview as a whole can fairly be described as a rant” (see paragraph 7 above). Consequently, the assessment of the “offensiveness” of the radio interview as conducted by the applicant must necessarily be a nuanced one, and the Court should therefore be reluctant to substitute its view on whether or not it amounted to “gratuitous personal insult” for that of the specialist regulator, which has been confirmed by the domestic courts at two levels of jurisdiction.

63. In light of the above considerations, the Court considers that the publication of the Ofcom finding was proportionate to the legitimate aim of the protection of the rights of others.

64 . Accordingly, it finds the applicant ’ s complaint under that Article to be inadmissible as manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 September 2016 .

Renata Deg en er Mirjana Lazarova Trajkovska Deputy Registrar President