High Court upholds fines imposed by Ofcom for serious and repeated breaches of the Broadcasting Code

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The High Court has given for The Office of Communications (“Ofcom”) in its claim against Star China Media Limited (“Star China”) for the recovery of £300,000 in outstanding fines issued for breaches of Broadcasting Code rules relating to fairness and privacy (The Office of Communications v Star China Media Limited [2025] EWHC 2816 (KB)).

Star China broadcast several programmes relating to three different individuals which contained footage of the individuals in vulnerable situations and/or purporting to confess to crimes that had not been tried in court. In the case of Mr Minhai Gui, a Hong Kong bookseller, the European Parliament had passed a resolution in 2015 which described Mr Gui’s status as “disappeared”, and Human Rights Watch had concluded that Mr Gui’s departure from Thailand was a case of “enforced disappearance”. Ofcom regarded Star China’s breaches of the Broadcasting Code as serious and repeated. Notwithstanding that it had already revoked Star China’s broadcasting licence for unrelated reasons, Ofcom saw fit to impose three separate £100,000 fines for the breaches.

Star China refused to pay the fines, and instead took the unusual approach of defending the debt by way of a public law defence rather than seeking judicial review. It argued that the fines were a disproportionate interference with its rights under Article 10 of the European Convention on Human Rights. Mr Justice Jay disagreed, finding that the fines were legitimately imposed by Ofcom in aid of the policy objective of deterrence and had taken proper account of the Article 10 rights of the broadcaster and the viewing public. Each of Ofcom’s investigations was found to be “thorough”, and the sanction decisions were said by the judge to be “compellingly reasoned and detailed, properly according weight to Article 10(1) of the Convention”.

The judgment affirms that a narrow margin of appreciation is afforded to the assessment of an expert regulator such as Ofcom in these cases. Whilst the court does not step into Ofcom’s shoes as decision-maker, what it is required to do is undertake, as it was put in R (oao Star China Media Limited) v Ofcom [2023] EWCA Civ 843; [2024] 1 WLR 248, a “close and penetrating examination of the factual justification for the restriction on freedom of speech (i.e. the derogation from article 10) … to ascertain whether it was proportionate to the legitimate aim”.

Bristows (Mark Brown, Ben Coleman and Naomi Foale) had the pleasure of acting for Ofcom in these proceedings, together with David Glen of Counsel at 11 Kings Bench Walk.

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The background

Star China is a media company incorporated in Hong Kong, a special administrative region of the People’s Republic of China. Between 2011 and 2021, it was licensed by Ofcom to broadcast in the UK. On 4 February 2021, Ofcom revoked Star China’s licence on the basis that the broadcast service was in fact being provided by the Chinese state broadcaster and Star China did not have editorial control over the content of its broadcasts.

The proceedings relate to three £100,000 financial penalties Ofcom imposed on Star China for separate breaches of Rules 7.1 and 8.1 of the Broadcasting Code (“Sanction Decisions”). The background to the three financial penalties is set out below.

Mr Peter Humphrey

• Mr Humphrey was a British citizen arrested in Shanghai for allegedly illegally obtaining and trading personal information about Chinese citizens. Star China broadcast programmes in 2013 and 2014 showing footage of Mr Humphrey in detention (in the first programme, wearing handcuffs) in which he purportedly confessed to various criminal offences.
   
• Mr Humphrey complained 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 and 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 Mr Humphrey 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).
   
• Ofcom found 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.

Mr Minhai Gui

• Mr Gui was a Hong Kong bookstore owner and prominent democratic rights activist on the island, who had subsequently left China to live abroad.
   
• In 2016, Star China broadcast footage of Mr Gui appearing to be visibly upset and stating that he was “willing to take my responsibility and accept any punishment” in respect of a historic drink driving offence, in relation to which the broadcaster reported Mr Gui had voluntarily returned to China. The report concluded by alleging that Mr Gui was also “suspected for other crimes”, albeit no further details were provided.
   
• Star China broadcasted an update on Mr Gui’s case in 2018, reporting that 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.
   
• Mr Gui’s daughter complained on his behalf, explaining 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.
   
• 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.

Mr Simon Cheng

• Mr Cheng was a Hong Kong political activist who 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.
   
• In 2019, on 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, Star China reported 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”.
   
• Mr Cheng complained the broadcast was inaccurate and omitted material context, including the assertion that he had been “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). Ofcom found that the programme had breached Mr Cheng’s privacy by broadcasting the footage in question. Ofcom also found Mr Cheng 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.

Ofcom found that programmes were serious, repeated breaches of the fairness and privacy rules at Sections 7.1 and 8.1 of the Broadcasting Code respectively. Although Star China’s licence had already been revoked, Ofcom concluded that the need for wider deterrence against other broadcasters infringing the Broadcasting Code, including the fairness and privacy rules, remained important and so imposed the same level of fine as if Star China still held a licence. Ofcom imposed three separate £100,000 fines.

Star China refused to pay any of the fines. It also refused to pay a fourth fine issued by Ofcom around the same time for unrelated reasons, namely for breach of the due impartiality requirements of the Broadcasting Code in its partisan reporting of the mass protests in Hong Kong in 2019-2020 over proposed changes to the island’s extradition laws. Star China chose to challenge that fourth fine by way of judicial review (the “JR Proceedings”), but the claim was dismissed at the first instance and then on appeal (and permission to appeal to the Supreme Court was refused).

Despite choosing to challenge the fourth fine by judicial review, Star China chose not to challenge any of the other three penalties by that route. Instead, it simply refused to pay. Ofcom was therefore left with no option but to commence proceedings to recover the penalties as a debt (s 346 Communications Act 2003 (“CA 2023”)).

The regulatory framework 

As with UK licensed broadcasters generally, the conditions of Star China’s Licence included an obligation that its service should comply with the provisions of the Broadcasting Code. The Broadcasting Code contains the broadcast standards and principles which Ofcom is required to set pursuant to its duties under s.319 of the CA 2023 and s.107 of the Broadcasting Act 1996.

• Rule 7.1 of the Broadcasting Code requires that: “Broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes.”
   
• Rule 8.1 of the Broadcasting Code requires that: “Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.”

Where Ofcom is satisfied that a licence holder has contravened a licence condition (including by failing to comply with the Broadcasting Code), it may impose a financial penalty on the holder of the licence (s.237 CA 2003). The decision as to whether or not to impose a sanction is informed by the Sanctions Procedures published by Ofcom. They state that Ofcom may impose a sanction (including a financial penalty) for a breach “if it considers that a broadcaster has seriously, deliberately, repeatedly or recklessly breached a relevant requirement” (paragraph 1.13).

If it decides to impose a sanction, Ofcom must have regard to its Penalty Guidelines. Paragraph 1.4 of those guidelines makes clear that the central objective of imposing a financial penalty is deterrence. Paragraph 1.5 states that “the level of the penalty must be sufficiently high to have the appropriate impact on the regulated body at an organisational level, and to deter the wider industry from doing so.”

Star China’s Defence

Star China did not challenge Ofcom’s findings that it had breached the Broadcasting Code, or its decision that a sanction was warranted, in principle.

Star China’s case was that the debt was not recoverable because the Sanction Decisions were unlawful on public law grounds. Star China advanced a narrow defence that, while a financial penalty of some order may have been warranted in principle, the level of the penalty was disproportionate and incompatible with Article 10 of the European Convention on Human Rights protecting freedom of expression. Article 10 of the ECHR states:

“Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Star China’s defence had three strands:

1. Given that Star China’s licence had been revoked, the deterrence objective insofar as Star China was concerned had fallen away. A lower sanction should therefore have been imposed compared to a scenario in which Star China retained its licence, to reflect the fact that the deterrence objective was now limited to other broadcasters;
    
2. Ofcom can rarely, if ever, impose a financial penalty for the purpose of wider deterrence in fairness and privacy cases given the alleged “chilling effect” on the practices of other broadcasters; and
    
3. Ofcom had ignored or given insufficient consideration to various other factors.

High Court decision

In his judgment handed down on 30 October 2025, Mr Justice Jay found for Ofcom, ordering Star China to pay Ofcom the £300,000 as a statutory debt. Whilst he was not persuaded that Star China’s right to defend the claim by way of a public law defence in the debt proceedings (rather than judicial review) had been excluded, the judge said he was “quite unable to conclude that [the] decisions, whether taken individually or in combination, were clearly wrong”.

The judge reiterated the well-established principle that an expert regulator such as Ofcom is accorded a margin of appreciation in which to make its decisions. The court does not stand in the shoes of the decision-maker (per Lord Sumption JSC in R (oao Lord Carlisle of Berriew and others) v Secretary of State for the Home Department [2014] UKSC 60; [2015] AC 945). As the Court of Appeal said in R (oao Autonomous Non-Profit Organisation TV-Novosti) v Ofcom [2021] EWCA Civ 1534; [2022] 1 WLR 481, “[t]he courts should give weight to Ofcom’s assessment and only second guess its expertise where it has obviously gone wrong”.

The judge rejected the three strands of Star China’s defence.

• It was not illogical for Ofcom to impose the same penalties in these three cases to reflect wider or general deterrence alone, after Star China’s licence had been revoked, notwithstanding that the provisional sanction decisions had specified sanctions which also included an element for specific deterrence. Addressing a materially similar argument raised by Star China in the JR Proceedings, Sir Geoffrey Vos MR said that “it does not follow that because a financial penalty of £125,000 was necessary and proportionate (on the basis explained above) to deter both Star China and other broadcasters, the same financial penalty was not necessary and proportionate to deter other broadcasters alone. It may be so, but it is not obvious that it is. It will depend on the circumstances.” Jay J stated that he could see no sensible basis for coming to a different conclusion in these proceedings. He also found no merit in the alternative submission that ramifications of licence revocation were not fully considered by Ofcom.
   
• It does not follow that, simply because the fairness code (which includes privacy) and the standards code (which includes due impartiality) have different regulatory and legislative origins, or that the two regimes have different styles and levels of detail, Ofcom cannot pursue the objective of wider deterrence in sanctioning breaches of the fairness code by way of financial penalties. The Judge found Ofcom correct that wider deterrence operates at a high level of generality, with any broadcaster appreciating that it is not so much the facts that matter, but the principles that emerge and the messages that flow both from what the Broadcasting Code says, and from Ofcom’s application of it to any given factual pattern.
   
• Finally, the judge gave short shrift to the assertion that Ofcom had failed to take account of various factors or give them appropriate weight. Ofcom plainly had given them due consideration. It had conducted a thorough investigation into the breaches, and the Sanction Decisions were compellingly reasoned and detailed, giving proper weight to Article 10 of the ECHR. The requirements for wider deterrence supplied the mandated compelling justification to interfere with Article 10 rights.