An attempt to mount a formal legal challenge to Ofcom's decision not to investigate complaints about the BBC Panorama programme 'Is Labour antisemitic?' has been rejected by the High Court on the grounds that it came nowhere near reaching the high threshold for such a challenge.
Justin Schlosberg - a vocal supporter of the pro-Jeremy Corbyn Jewish Voice for Labour group and a senior lecturer in journalism and media at Birkbeck College – had sought a Judicial Review into the broadcast watchdog’s decision to reject the complaints into the July 2019 show, arguing that it was irrational and unlawful.
Rejecting the case on 10 June Mrs Justice Lang said: "The Claimant submits that Ofcom’s decision was irrational. In my view, he comes nowhere near reaching the high threshold which has to be met for an irrationality challenge to an expert regulator’s exercise of judgment to succeed.”
Mr Schlosberg had launched a crowdfunding campaign for his legal challenge “on behalf of a group of complainants” in January and had confirmed that on the 13th February “we successfully raised £25,900 with 1037 supporters in 28 days.”
But last month the Court also ruled that Schlosberg was out of time when he filed his application to apply to JR Ofcom’s decision.
He was told he was required to pay costs of £4,812 for preparing the Acknowledgment of Service and a further £4000 to the BBC.
Mr Schlosberg has now attempted to challenge the basement of costs.
Announcing his decision to launch a legal challenge to Ofcom, he said on the Crowdfunder website this was a “landmark and important case”.
Mr Schlosberg said the "future of our democracy hinges on our public service media offering fair and accurate coverage of political controversies, and a regulator that properly holds them to account.”
The application for a Judicial Review was subsequently filed by Mr Schlosberg on April 14. Rules for applications of this type stress they must be filed promptly and “in any event not later than 3 months after the grounds to make the claim first arose.”
Explaining the delay he told the JC: “In late January I was admitted to hospital via Accident and Emergency and had to undergo surgery a day later as a result of a deep neck infection.
“Though the procedure was relatively standard and successful, it took 3-4 weeks for me to recover, during which time my work rate was significantly impacted.
“By the time I had made a full recovery, I was faced with a huge backlog of urgent workload resulting from the pandemic fallout in my employment as a senior member of academic staff at a leading London university.”
Assessing Mr Schlosberg’s complaint in relation to an email from former Labour General Secretary Jennie Formby, which was he said used wrongly in the Panorama show, the Court concluded that the programme had made it clear that its interpretation was disputed by the Labour Party.
Mr Schlosberg was also criticised after failing to submit a list of the complaints to Ofcom about the Panorama.
The Court also ruled that he was out of time when he filed his application to apply to for a Judicial Review of Ofcom’s decision on April 14.
The Court confirmed that the episode of Panorama had passed strict BBC editorial standards and that the Corporation’s Editorial Complaints Unit had rejected all complaints about the programme - as had Ofcom.
Responding to the Court’s decision that this case came “nowhere near” succeeding, Mr Schlosberg told the JC: "The words “nowhere near” were used by the judge in respect of only one of the grounds on which my application was based – irrationality – which is indeed a notoriously high threshold in matters of public law, especially when applied to an expert regulator. “
He said he had “already challenged the summary assessment of costs “and was “awaiting the Court’s determination” over the pay £8,812 he was asked to pay.
