Joshua Rozenberg
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January 31, 2009

BBC has little to fear from Gazan challenge

The BBC’s decision not to broadcast an appeal for Gaza this week was unlawful, according to a firm of London solicitors.

Hickman & Rose have written the BBC a letter before action, warning the broadcaster of their plans to challenge its decision in the courts.

Yesterday, the BBC asked for two weeks to deal with the application for judicial review of its decision. The law firm agreed.

Hickman & Rose say they are acting for “two Gazans who have lost their homes and members of their families and are still awaiting aid, plus a client in the UK who has complained to the BBC over their refusal to air the DEC Gaza appeal”.

Their clients claim that the decision not to broadcast the appeal “is unlawful on the basis that it is ‘irrational’, meaning ... that no reasonable decision maker could reasonably have reached it”.

They also allege that “the decision has the perverse result of giving the appearance that the BBC is biased against civilians living in Gaza, and therefore not ‘impartial’, contrary to its very objective.

“It further attributes to those ‘on the other side’ [presumably those who supported the BBC’s decision] the view that they would not want humanitarian aid to reach civilians who are suffering.”

The two Gazans and the UK-based applicant are “also claiming that the BBC failed to consider whether the restriction was compatible with Article 10 of the European Convention on Human Rights, which includes a right to receive information; the BBC has not shown that the restriction was strictly necessary and proportionate to any legitimate aim”.

What are we to make of these arguments?

The first claim is based on irrationality, the classic ground on which the decision of a public body may be overturned. In my view, the BBC should have little trouble in seeing this off.

Mark Thompson, the Director General, has explained the reasoning behind his decision not to show the appeal. Clearly, the claimants are not impressed by his reasons. But it would be extraordinary if the courts were to substitute their editorial judgment for that of the BBC. Provided the BBC has reached its decision in a rational way, the courts will not interfere.

The next argument is not one for the courts. What impression the BBC gives is no concern of theirs. Still less are the judges concerned about the views the BBC is supposed to have imputed to those who supported its decision.

Finally, we come to the human rights argument. It is perfectly true that Article 10 includes the right to receive information as well as the right to impart it. And, as Hickman & Rose fairly acknowledge, this right is not an absolute one: it is subject to such restrictions as are necessary in a democratic society.

The two Gazans can hardly be complaining that they have been deprived of the right to see the appeal on television. In the normal course of events, they would not be watching domestic BBC broadcasts. Even if they were, homeless Gazans are unlikely to send international aid to themselves.

So we are left with the anonymous television viewer in Britain. I would be amazed if this viewer had not seen the broadcast on other television channels or downloaded it from the internet. Even if he or she watched only the BBC, the viewer would have received a huge amount of “information” about the appeal from the corporation’s news programmes.

Whether or not there is a “right” to information about a particular appeal — which I doubt — I am confident that this claimant has not been deprived of it. If the courts were to decide otherwise, we could all take the BBC to court for refusing to broadcast our favourite football matches.

Posted at January 31, 2009 11:17 AM