In February the High Court sided with GB News in a judicial review, brought by the challenger broadcaster following decisions from Ofcom that it had breached Section Five of the Broadcasting Code (the “Code”) by allowing Jacob Rees-Mogg (who was an MP at the time) to act as a newsreader in a news programme without exceptional justification.

Ofcom’s consultation (the “Consultation”) on a proposed amendment to Rule 5.3 of the Code has recently closed. As the dust settles, we look at what prompted Ofcom to take action and what the proposed changes might mean for broadcasters.

Context – GB News, Ofcom and the question of ‘news programme’

Section Five of the Code currently (i) requires that ‘news, in whatever form, must be reported with due accuracy and presented with due impartiality’ (Rule 5.1); and (ii) prohibits any politician from being used ‘as a newsreader, interviewer or reporter in any news programmes unless, exceptionally, it is editorially justified. In that case, the political allegiance of that person must be made clear to the audience’ (Rule 5.3).

Ofcom’s original decisions centred around two episodes of “Jacob Rees-Mogg’s State of the Nation”, a one-hour programme broadcast four times per week on the GB News channel and presented by Rees-Mogg. In one programme on 9 May 2023 the MP had interrupted his normal topical discussion format to read a ‘breaking news’ bulletin covering the decision in civil proceedings in the US against President Trump, whilst in a later episode broadcast on 13 June 2023 he had once again diverted away from his normal format to cut live to a GB News security correspondent in Nottingham for an update on a breaking news story. 

Ofcom considered that these two segments both comprised ‘news programmes’ for the purposes of Rule 5.3 and that Rees-Mogg had therefore acted as a newsreader in breach of Section Five of the Code. It further considered that because Rule 5.3 had been breached, that it also constituted a de facto breach of the impartiality obligation at Rule 5.1.

In the judicial review proceedings brought by GB News the High Court found that Ofcom’s decisions were based on an inaccurate interpretation of the wording of Section Five and quashed Ofcom’s decision.

The High Court’s Decision

Ofcom and GB News were in agreement that Jacob Rees-Mogg’s State of the Nation was a current affairs programme as it is defined in the Code. Where the parties disagreed was Ofcom’s contention that it was also a news programme given the inclusion of the specific parts of the programme during which news was presented.

The High Court sided with GB News, finding that the drafting of the Code and the use of the term ‘programme’ is intended to separate items contained within a service into distinct categories by subject matter. News programmes are one category and specific provisions apply to such programmes. Current affairs programmes and religious programmes are examples of other categories, with specific provisions applying to those. Applying the normal rules of interpretation to the wording of the Code the High Court found that a programme could not be both a news programme and a current affairs programme.

In this case, whilst Jacob Rees-Mogg had clearly ‘stepped into the arena of news’, Ofcom’s argument that Rule 5.3 applied on the basis that the programme had become a ‘news programme’ on the inclusion of these breaking news bulletins was found to be flawed. The programme was a current affairs programme and Ofcom had been wrong to apply Rule 5.3.

In relation to Rule 5.1, the High Court also found that the Code clearly requires a case-by-case assessment to apply the ‘due’ impartiality and ‘due’ accuracy thresholds. That assessment was not properly undertaken in this case as Ofcom had concluded (following its incorrect application of Rule 5.3) that a politician presenting the news was a de facto breach of the impartiality requirement under Rule 5.1.

Proposed Changes

The changes proposed by the Consultation are simple and seek only to ensure that the Code prohibits politicians from being used as newsreaders, news interviewers or news reporters in any type of programme, except where:

1. there is exceptional editorial justification; and
2. the broadcaster has made the political allegiance of that person clear to the audience.

These changes are intended to ensure that Ofcom’s policy goals – in particular to robustly protect the impartiality and accuracy of broadcast news content in whatever category it is presented – are achieved.

Whilst the proposed changes will bring the Code in line with Ofcom’s original (albeit incorrect) interpretation of the Code, it will still require broadcasters to exercise a level of judgment as to when a politician presenter is being used as a ‘newsreader’, ‘news interviewer’ or ‘news reporter’ – much of which will depend on an assessment of whether the underlying content is ‘news’. Whilst the ‘breaking news’ style breakaways that were a feature of Jacob Rees-Mogg’s State of the Nation might clearly fall within the realm of news, that might not be the case for other forms of reporting on current affairs involving politicians, and Ofcom will clearly need to carefully justify any future rulings under Section Five of the Code.

Next Steps / Commentary

The proposed revisions from Ofcom are perhaps unsurprising. There are however a number of interesting takeaways from the decision, and from the broader challenges that the increasing inclusion of news-style programming outside the traditional news programme model present to the existing regulatory scheme.

• This decision is fundamentally a finding that the drafting of the Code was deficient in achieving the outcome that Ofcom sought to achieve. It is perhaps telling that the Court described Ofcom’s submissions as amounting to “a powerful, and forensically and constitutionally informed, piece of advocacy… for a point of view about what the law ought to be in this area… but that is not a question for me or for any court… my question is what the law is.” In our view this is not the only part of the Code that is difficult to apply in practice (we recently wrote about the difficulty for live sports broadcasters interpreting the rules on commercial references, for example), and where the Code is difficult to apply in practice this successful judicial review may embolden other broadcasters to challenge decisions.
• The Code was published in 2005 and, with the exception of Sections Three and Nine, has not undergone any form of wholesale review since. Ofcom’s submissions in this case note that it takes a ‘restrained’ approach to amending the Code, not least given the requirement to consult for each and every amendment and the undesirability for licensed broadcasters to be subject to frequent changes. However, the pace of change in the media landscape, in particular the huge expansion of news-style content across programmes, will continue to challenge the robustness of the Code. It is interesting that Ofcom has limited this Consultation to a simple change to close a loophole, rather than taking the opportunity to review the regulation of news content under the Code more holistically. 
• Ofcom are in the process of developing a Video on Demand Code, as part of the package of regulations which will apply to certain Tier 1 Video on Demand Providers under the Media Act 2024. We anticipate that Ofcom will release their initial consultation on the VoD Code in in Q3, and it will be interesting to see whether they adopt the same approach to the regulation of politicians presenting news as they intend to under this Consultation.

The Consultation closed on 23 June 2025. GB News has released its own response and we will look forward to seeing what other broadcasters and interested parties had to say when Ofcom releases its post-consultation statement.