High Court endorses Ofcom’s deterrence rationale

The High Court has ruled in favour of the Office of Communications (“Ofcom”) in its claim against Star China Media Limited (“Star China”) for recovery of £300,000 in unpaid regulatory penalties. The judgment, The Office of Communications v Star China Media Limited [2025] EWHC, concerns three financial sanctions of £100,000 each imposed following serious findings of unfairness and unwarranted infringement of privacy under the Broadcasting Code. Star China had refused to pay and advanced an unusual public law defence in the debt proceedings, contending that the penalties were a disproportionate interference with its Article 10 rights. Mr Justice Jay rejected that argument, holding that Ofcom had acted lawfully and proportionately in pursuit of its regulatory objectives, including the need for wider deterrence.

The decision provides a significant affirmation of the “narrow margin of appreciation” accorded to expert regulators such as Ofcom when assessing proportionality in the broadcasting context. Importantly, the Court emphasised that while judicial scrutiny must be “close and penetrating”, per R (oao Star China Media Limited) v Ofcom [2023] EWCA Civ 843; [2024] 1 WLR 248, it does not involve substituting the court’s view for that of the regulator. Ofcom’s sanction decisions in this matter were found to be detailed, cogently reasoned, and properly attentive to the broadcaster’s Article 10 rights and those of the viewing public.

Background to the dispute

Star China is a company incorporated in Hong Kong, licensed by Ofcom between 2011 and 2021 to broadcast in the UK. Ofcom revoked its broadcasting licence in February 2021 after concluding that editorial control rested not with Star China but with the Chinese state broadcaster. This revocation was unrelated to the sanctions at issue in the present proceedings.

The present claim concerns three discrete financial penalties of £100,000 each, imposed for breaches of Rule 7.1 (unjust or unfair treatment) and Rule 8.1 (unwarranted infringement of privacy) of the Broadcasting Code. Each penalty related to broadcasts featuring vulnerable individuals, including footage of purported confessions and material suggestive of guilt prior to trial. Ofcom determined that the breaches were serious, repeated and struck at the core of the fairness and privacy protections.

Star China declined to pay the penalties, asserting instead, through a public law defence to the debt claim, that although some sanction may have been permissible, the amount was disproportionate and incompatible with Article 10 ECHR. The company did not challenge the underlying breach findings, nor did it seek judicial review of these three sanctions, despite doing so in relation to a separate due-impartiality penalty imposed at a similar time.

The three broadcasts: breaches of fairness and privacy

The Peter Humphrey broadcasts

Peter Humphrey, a British citizen, was arrested in Shanghai for allegedly obtaining and trading personal information. In 2013 and 2014, Star China aired footage showing Mr Humphrey in detention, at times handcuffed, apparently confessing to criminal wrongdoing. Mr Humphrey later complained that the broadcasts created the false impression that he had voluntarily admitted the offences despite not having been tried or convicted at the time.

He further alleged that he had been sedated, forcibly brought to a steel cage, restrained in a metal chair and handcuffed prior to the recorded interview, unaware that filming was taking place. According to his account, the questioning was led by a police officer who required him to read from a prepared script off-camera, and he was pressured into apologising as this was presented as a route to favourable treatment.

Ofcom concluded that the programmes displayed highly intrusive footage of an individual held in vulnerable custody conditions and that Star China had committed an unwarranted infringement of privacy. It also found the broadcasts materially unfair: viewers were led to conclude that Mr Humphrey was voluntarily confessing to crimes, despite ample grounds to doubt the voluntariness or reliability of the statements. The omission of contextual information rendered the portrayal misleading.

The Minhai Gui broadcasts

The second sanctions concerned two programmes relating to Mr Minhai Gui, a Hong Kong bookseller and prominent democratic rights advocate. Mr Gui had left Hong Kong to live abroad but disappeared in Thailand in 2015. The European Parliament had categorised his situation as an enforced disappearance, and Human Rights Watch described him as having been abducted by Chinese authorities.

A 2016 broadcast showed Mr Gui visibly distressed, saying he was ready to “accept any punishment” for an historic drink-driving offence, reportedly having returned voluntarily to China. The programme ended with allegations that he was “suspected for other crimes”, though no specifics were offered.

A subsequent 2018 broadcast reported that Mr Gui had been taken into custody while travelling with “two Swedish diplomats”, allegedly carrying material relating to state secrets, and was suspected of illegally providing intelligence overseas. The programme asserted that he had been arrested and re-detained.

Mr Gui’s daughter submitted a detailed complaint noting that her father had been abducted in Thailand, had been held incommunicado since October 2015, and had not faced trial for the alleged offences. She emphasised that the 2018 programme presented speculation as fact and omitted the critical context of his detained status at the time of the alleged conduct.

Ofcom determined that both broadcasts unlawfully intruded into Mr Gui’s privacy: he was shown in extreme vulnerability, in circumstances not of his choosing and without context. The programmes also unfairly suggested guilt and misled viewers by presenting allegations as established fact. Highly material information about the involuntary nature of his detention was omitted.

The Simon Cheng broadcast

The third set of findings related to Simon Cheng, a Hong Kong political activist and former employee of the British Consulate. In 2019, after Mr Cheng told the BBC that Chinese authorities had tortured him during his detention (including being shackled, blindfolded and beaten) to elicit a false confession that he was a British spy, Star China broadcast a report the following day claiming “Shenzhen police have released videos of Simon Cheng soliciting prostitutes”.

CCTV footage allegedly showing the misconduct was aired, with further claims that Mr Cheng had acknowledged breaking the law. Mr Cheng complained that the programme was inaccurate and omitted critical context: he had not been tried, had merely been placed in administrative detention (a non-judicial process), and the broadcast misrepresented his custody conditions and the nature of his allegations.

Ofcom held that the footage constituted an unwarranted breach of privacy and that the programme treated Mr Cheng unfairly. Highly relevant contextual information, particularly about his detention, the absence of judicial process, and the circumstances surrounding his purported confession, was omitted despite being known to the broadcaster.

Ofcom’s sanctions and the issue of deterrence

Ofcom found the breaches across all three sets of broadcasts to be serious, repeated and in clear contravention of Rules 7.1 and 8.1 of the Broadcasting Code. Even though Star China’s licence had already been revoked on different grounds, Ofcom considered it necessary to impose the same level of penalty it would have applied had the licence remained in place. The regulator emphasised the importance of general deterrence, to signal to the industry that fairness and privacy breaches would be met with serious consequences.

Star China refused to pay the three penalties. It also refused to pay a fourth contemporaneous fine, this one for breach of due impartiality rules in relation to its coverage of the 2019–2020 Hong Kong protests. Star China challenged that fourth penalty through judicial review (JR Proceedings), but the claim failed at first instance, on appeal, and ultimately when permission to appeal to the Supreme Court was refused.

By contrast, Star China did not seek judicial review of the three fairness/privacy sanctions. Instead, it declined to pay and raised public law objections within the debt recovery proceedings brought under s.346 Communications Act 2003 (CA 2003).

The regulatory framework

As a UK-licensed broadcaster, Star China was subject to licence obligations requiring compliance with the Broadcasting Code. The Code reflects Ofcom’s statutory duties under s.319 CA 2003 and s.107 of the Broadcasting Act 1996, and sets standards to secure fair treatment, respect for privacy, due accuracy and impartiality, and other broadcasting principles.

Rule 7.1 requires broadcasters to avoid unjust or unfair treatment of individuals or organisations in programmes.
Rule 8.1 provides that any infringement of privacy… must be warranted.

Where Ofcom determines that a licensee has breached a licence condition, it may impose a financial penalty under s.237 CA 2003. Ofcom’s Sanctions Procedures state that sanctions may be imposed where a breach is serious, deliberate, repeated or reckless. Ofcom must also have regard to its Penalty Guidelines, which identify deterrence, both specific and general, as the central objective of penalties.

The Guidelines emphasise that penalties should be set at a level “sufficiently high” to have organisational impact and to discourage similar breaches across the industry.

Star China’s public law defence

Star China did not dispute Ofcom’s findings of breach or the principle that a sanction was merited. Its defence focused solely on proportionality under Article 10 ECHR. It advanced three distinct strands:

• The absence of a need for specific deterrence: Because its licence had already been revoked, Star China argued that Ofcom should have adjusted the penalty downward to reflect the limited relevance of specific deterrence.
• The alleged “chilling effect” on other broadcasters: Star China contended that, in fairness and privacy cases, wider deterrence should either carry no weight or be treated cautiously due to the risk of discouraging investigative journalism.
• Failure to consider relevant factors: It alleged that Ofcom had misapplied or ignored factors required for a proper Article 10 proportionality analysis.

Star China accepted that some penalty might be justified, but maintained that three £100,000 fines were disproportionate.

The High Court’s decision

In his judgment of 30 October 2025, Mr Justice Jay found entirely for Ofcom and ordered Star China to pay the £300,000 statutory debt. While he accepted that Star China was not necessarily precluded from raising a public law defence in debt proceedings, none of its arguments succeeded.

The judge reiterated the established approach to judicial review of regulatory decisions: regulators like Ofcom are granted a margin of appreciation, and courts should not substitute their own views for the regulator’s expert assessment. As confirmed in R (oao Autonomous Non-Profit Organisation TV-Novosti) v Ofcom [2021] EWCA Civ 1534; [2022] 1 WLR 481, courts “give weight” to Ofcom’s evaluations and intervene only where it has “obviously gone wrong”.

The Court rejected Star China’s argument that revocation of its licence should automatically have reduced the penalty by removing the specific-deterrence rationale. The judge endorsed the Court of Appeal’s reasoning in the JR Proceedings, where Sir Geoffrey Vos MR observed that it does not follow that a penalty proportionate to deter both Star China and others becomes disproportionate once Star China’s own licence is revoked. The same penalty may still be needed to deter the wider broadcasting industry.

Mr Justice Jay held that there was “no sensible basis” for reaching a different conclusion here. Ofcom was entitled to conclude that general deterrence alone justified the level of the penalties.

The Court also dismissed the contention that fairness and privacy sanctions should rarely carry general deterrence weight. Mr Justice Jay found that Ofcom was correct to emphasise that deterrence operates at a high level of generality and does not turn on the particular facts of the case, but on the principles and compliance signals that flow from the Code and the regulator’s decisions.

That the fairness and impartiality regimes have different statutory origins did not preclude deterrence from being a legitimate consideration in the fairness/privacy context.

Finally, the Court found no basis for the assertion that Ofcom had ignored or undervalued relevant considerations. Ofcom’s investigations were “thorough”, its sanction decisions “compellingly reasoned and detailed”, and it had given proper and explicit weight to Article 10 rights. The judge was therefore “quite unable to conclude” that Ofcom’s decisions were “clearly wrong”.

Crucially, he found that the imperative of wider deterrence supplied a “compelling justification” for any interference with freedom of expression.

Significance of the judgment

The decision solidifies a number of important principles for regulatory enforcement under the Broadcasting Code:

Affirmation of Ofcom’s regulatory discretion

Courts continue to recognise the particular expertise of Ofcom in assessing fairness, privacy and proportionality. Judicial scrutiny remains rigorous, but intervention will be limited to clear error.

General deterrence remains central, even where the licensee has exited the market

A revoked licence does not diminish Ofcom’s mandate to deter misconduct across the industry.

Article 10 analysis does not dilute the weight of fairness and privacy rules

The judgment underscores that freedom of expression, while fundamental, must be balanced against individuals’ rights not to be unfairly treated or have their privacy infringed. Ofcom’s structured approach, applying its Penalty Guidelines with explicit reference to Article 10, was vindicated.

Sanctions for unfairness and privacy can properly be significant in scale

The decision counters the suggestion that high-value financial penalties in this category risk creating a chilling effect. The Court accepted Ofcom’s reasoning that strong deterrence is necessary to guard against irresponsible or abusive broadcasting practices.

Conclusion

Ofcom v Star China Media Limited [2025] EWHC is a notable confirmation of Ofcom’s authority and discretion in enforcing fairness and privacy standards, even where the broadcaster is no longer operating under a UK licence. Star China’s attempt to resist payment through an Article 10-based public law defence failed at every turn. The High Court found the regulator’s investigations and reasoning to be meticulous, proportionate and legally robust, reflecting a proper balancing of individual rights, regulatory obligations and the broader public interest.

For practitioners, the case underscores the courts’ continuing respect for the role of specialist regulators in balancing freedom of expression with the rights of individuals featured in broadcasts. It also highlights the importance of clear, contextualised reporting where allegations are untested, where individuals are detained or vulnerable, and where broadcasters may be relying on material obtained through state authorities.

The judgment serves as an emphatic reminder that breaches of fairness and privacy will attract serious sanctions, and that Ofcom’s commitment to deterrence remains a central pillar of the UK broadcasting regulatory landscape.

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