Infringement of Human Rights or Proportionate Action by Ofcom?

It was a choice of words that saw Jon Gaunt sacked and the station censored by Ofcom.

Now the former TalkSport presenter is challenging the decision of media regulator Ofcom by way of a Judicial Review under Article 10 of the European Convention on Human Rights. Gaunt is claiming infringement of his fundamental right to free speech when criticising a politician.

Gaunt’s show is said to have attracted 203 complaints over the course of 138 shows but it was after he called London councillor Michael Stark ‘a health Nazi’ in a live debate that Ofcom intervened.

Gavin Millar QC, counsel for Gaunt told the court that Ofcom’s reaction in censoring TalkSport and impugning Mr Gaunt’s professional reputation had been a disproportionate reaction.

Millar argued that the use of the word ‘Nazi’ had not been used in a political, historical or ideological sense but that “there is now a recognised slang of the word Nazi, one who imposes their views on others”.

Ofcom had said that Gaunt breached the broadcasting code through his choice of language in criticising Stark’s plans to ban smokers from adoption. It is unlikely that it is the use of the term ‘ignorant pig’ that Ofcom was referring to.

Taken into care as a child, the presenter reacted to being told by Stark, head of children’s services at Redbridge Council, that the experience had “obviously had an effect on him”. Gaunt was sacked by the station 10 days after the Ofcom ruling which criticised him for “persistently bullying and hectoring.”

Gaunt’s legal team referred to the necessity of finding the right balance when enforcing the broadcasting code and respecting the right to freedom of expression prescribed by the Article 10 of the Convention.

Sir Anthony May and Mr. Justice Blair, sitting at the hearing, were told by Millar that a "fundamental right" could be infringed only where a "pressing social need" existed to do so.

He said that Gaunt's comments were not personal assaults but were made by a journalist acting under his professional duty to disseminate information to the public.

He said that Gaunt did not divert from the topic being discussed and did not resort to personal insults. "It was a classical polemical attack on a politician ... in his capacity as a politician."

Liberty director Shami Chakrabarti was in attendance as Gaunt won his battle for a Judicial Review earlier this year. She has voiced her support of Gaunt: “This is not about one journalist and one politician…there is a big principle here. People do not have the right not to be offended. It’s a very dangerous right to assert.”

An Ofcom spokesman said: “Parliament gave Ofcom a duty to ensure that whilst standards in programmes are maintained, the right to freedom of expression is also protected. Ofcom regularly makes decisions under the broadcasting code that respect and balance these principles.”

“In this case, Ofcom found Jon Gaunt’s interview to be a breach of generally accepted standards. We believe the breach finding was proportionate.”

Published June 16, 2010

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