Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex
On 20 April 2020, the UK communications regulator Ofcom ruled that ESTV Ltd had breached its Broadcasting Code by airing an interview on the Coronavirus pandemic which risked causing “significant harm to viewers.”
ESTV Ltd, the licensee, is the owner of the local TV channel London Live, which serves the London area. On 8 April 2020, London Live broadcast an 80-minute interview with the former footballer and sports broadcaster David Icke, who was introduced by the presenter Brian Rose at the start of the programme as “a writer and public speaker known since the 1990s as a professional conspiracy theorist.” At the time of the broadcast, it was estimated that approximately 1.4 million people had been infected globally and the UK Government had introduced its lockdown policy to curb the spread of the virus.
Given the global Coronavirus crisis, the regulator expressed particular concern over the broadcast of Icke’s opinions which “cast doubt on the motives behind the official health advice aimed at reducing the spread of the virus.” The interviewee repeatedly suggested in the programme that the measures taken by the UK Government, other national governments and international health bodies such as the WHO were being implemented to further the malevolent ambitions of a “clandestine cult,” rather than to protect public health. While not expressly mentioning 5G technology, Icke referred, among other things, to an “electromagnetic, technologically generated soup of radiation toxicity” which, he claimed, had compromised the immune system of elderly people. Icke also expressed doubts over the use of vaccines (which are widely accepted by scientific communities as important mechanisms in controlling infectious disease outbreaks and part of a long-term solution to COVID-19), describing them as a “tidal wave of toxic shite” and any decision to make them mandatory as a form of “fascism.”
ESTV Ltd acknowledged that the programme included “controversial” and “unorthodox” material that challenged mainstream thinking, but considered it to be an exploration of Icke’s “extraordinary” views about the origins of the virus and governments’ responses within the limits of Article 10 of the European Convention on Human Rights. The regulator stated that the licensee was not, in principle, prohibited from broadcasting opinions which diverged from, or challenged official authorities on public health information and that Icke had a right to hold and express these views. However, Ofcom queried whether in the current unprecedented circumstances the programme had ensured that members of the public were “adequately protected” from the inclusion of potentially harmful material in compliance with Rule 2.1 of the Broadcasting Code.
The regulator stated that some viewers might well have expected that Icke’s opinions would not necessarily be scientifically or otherwise empirically supported, but they had also been likely to be “particularly vulnerable” during a global public health emergency. The extended nature of the interview, its sensitive subject matter, the severity of the situation and the degree of challenge (or the inclusion of opposing views) were factors that weighed significantly in the decision-making. Ofcom found that for some 80 minutes, ESTV Ltd had provided David Icke with a platform to set out highly controversial and unsubstantiated claims (which the licensee itself considered “may be absurd”) with minimal challenge within the programme. Moreover, the impact of the limited challenge that was present was minimised by the presenter’s final comments to the interviewee: after shaking hands, Brian Rose said that David Icke had “amazing knowledge and amazing perspectives about what’s going on here.” The regulator concluded that the licensee had failed to adequately protect viewers from potential harm and considered the breach of Rule 2.1 to be serious.
Ofcom directed ESTV Ltd to broadcast a summary of its ruling. Its Sanctions Panel will consider the matter further. Ofcom’s decision was delivered within just two weeks, as the regulator prioritises cases linked to Coronavirus whereby programmes may have helped spread misinformation or included material of a misleading nature about the illness and public policy in relation to it.
This article was first published in IRIS Legal Observations of the European Audiovisual Observatory and is reproduced here with permission and thanks.