R (Avaaz) v Ofcom, Sky and 21st Century Fox

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The High Court has upheld a decision by Ofcom that Sky would remain a “fit and proper” broadcast licensee if a planned merger with 21st Century Fox were to proceed.

A campaign group, the Avaaz Foundation, had brought judicial review proceedings challenging Ofcom’s decision of 29 June 2017. The Administrative Court (Supperstone J) held that the claim had become academic in light of the Secretary of State’s decision of 5 June 2018 to block the merger unless Sky News could be divested on appropriate terms (paras 40-46). The Court further held:

that Ofcom had not erred in law by applying a high threshold (paras 47-61);
that Ofcom had adopted a rational approach to Fox’s conduct in relation to broadcasting regulation (paras 62-77);
that Ofcom’s assessment of Fox’s corporate governance in relation to serious allegations of sexual and racial harassment at Fox News was adequate (paras 78-89); and
that Ofcom had not failed to take account of earlier findings made in 2012 in respect of James Murdoch (paras 90-97).

The full judgment can be read here.

Pushpinder Saini QC, Jessica Boyd and Flora Robertson acted for Ofcom (instructed by Ofcom); Kieron Beal QC acted for Sky (instructed by Herbert Smith Freehills); and Lord Pannick QC and James Segan acted for 21^st Century Fox (instructed by Allen & Overy).