Jon Gaunt loses court challenge over 'Nazi' jibe

A radio presenter who called a councillor a "Nazi" live on air today lost his legal challenge to Ofcom's decision to uphold complaints against him.

Jon Gaunt, who made the comments on his daily Talksport radio show in November 2008, said the media watchdog's stance was an unlawful interference with his freedom of expression.

His heated interview with Councillor Michael Stark about Redbridge Council's decision to ban smokers from becoming foster parents - for which he later apologised - drew 53 complaints from listeners.

Mr Stark said the welfare of young children should outweigh the needs of foster families but Gaunt, who was in care as a child, accused him of being a "Nazi", a "health Nazi" and an "ignorant pig", arguing that the chance of finding a foster home would be lost under the new policy.

Gaunt claimed that Ofcom's June 2009 finding that the interview contained material which might cause offence which was not justified by its context was incompatible with Article 10 of the European Convention on Human Rights.

But Sir Anthony May and Mr Justice Blair dismissed his judicial review proceedings at London's High Court.

Sir Anthony said Ofcom was justified in its conclusion.

"The broadcast was undoubtedly highly offensive to Mr Stark and was well capable of offending the broadcast audience.

"The essential point is that the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification."

Gaunt was refused permission to appeal although he can renew his application directly to the Court of Appeal.

Ofcom welcomed the court's ruling that it was right to find the interview was in breach of the Broadcasting Code.

Listeners had complained that the tone of the interview was "oppressive" and "intimidating" and they felt Mr Gaunt - who was suspended by Talksport that afternoon and later had his contract terminated - was "shouting like a playground bully".

Following Ofcom's investigation, it imposed no sanction on either Talksport or Mr Gaunt.

Ed Richards, Ofcom's chief executive, said: "We were perfectly happy for this case to be taken to court to review the way in which we interpret our statutory duties.

"We are very pleased that the High Court has recognised that we came to the right decision in this case. This is a thorough endorsement of our judgment in what was a difficult case.

"Parliament has given Ofcom the duty of applying generally accepted standards to television and radio services, which we always aim to do in a way that respects the important principles of freedom of expression whilst at the same time protecting audiences from unjustified offensive and harmful material."

Mr Gaunt and his lawyers said they intended to challenge the ruling which, if allowed to stand, might have "a chilling effect on robust political interviews".

Corinna Ferguson, legal officer at human rights group Liberty, which intervened in the case because of its wider importance to free speech, said there was a great deal to welcome in the judgment.

"Ofcom should reflect on the close scrutiny it will face from now on.

"The Human Rights Act protects 'shock jocks' as much as flagship political commentators and free speech is no more worthy with extra syllables.

"However, we are not convinced that the court has fully applied its own logic and hope that this can be improved upon in the Court of Appeal."

In their ruling, the judges said that the interview as a whole could fairly be described as a "rant".

Sir Anthony said that its subject was political and controversial and Mr Stark was an elected politician who would expect to receive and tolerate a rough ride.

The expressions complained of were not essentially statements of fact, but expressions of value or opinion.

It was therefore an interview where Mr Gaunt's freedom of expression should be accorded a high degree of protection and that was capable of extending to offensive expression.

"His freedom of expression may not however extend to gratuitous offensive insult or abuse, nor, we think, to repeated abusive shouting which serves to express no real content."

He said that to call someone a "Nazi" was capable of being highly insulting.

It might be that its first use during the interview after a reasonably controlled introductory dialogue had some contextual content and justification.

Offensive though it was, it might be seen as an "emphatic and pejorative assertion" that Mr Stark was, in the matter of smoking and fostering children, one who imposed his views on others.

But, as the tone degenerated, Mr Gaunt's subsequent uses of the word assumed the nature of "undirected abuse".

The judges accepted Ofcom's submission that its finding constituted no material interference with Mr Gaunt's freedom of expression at all.

"An inhibition from broadcasting shouted abuse which expresses no content does not inhibit, and should not deter, heated and even offensive dialogue which retains a degree of relevant content."