O’Brien dedicated a part of two of his shows to fringe conspiracy theories, without researching alternative views or giving the IEA a right to reply. In fact he made it clear no such right would be offered given his own political bias against the organisation. He had further previously no-platformed another think tank spokesperson live on air to underline this point. These are clear breaches of the Broadcasters Code, at least under a reasonable person test.
When compelled to give a grudging right to reply by his employer, long after the items had been broadcast he issued a partial retraction. The IEA decided to test whether this was adequate, and whether concerns of bias in Ofcom among other regulators (at the time), would be proven well founded. IEA authors tend to the view that both Ofcom and the Broadcasters Code are unnecessary, but if they exist those rules should be applied even-handedly.
Ofcom’s response to this was to ignore both the evidence of no-platforming and failure to seek comment from the IEA, to focus instead on whether the conspiracy theory broadcast might have been reasonable, based solely on evidence gathered by the conspiracy theorist. This included a regulatory sanction applied to the IEA at the time, which was later overturned, in part due to evidence of political bias and incompetence on the part of the regulator. It included ignoring another regulator’s ruling in favour of the IEA that found no merit in the exact same conspiracy theory being peddled.
At one level the IEA welcomes the ruling. The defence of freedom of expression for a broadcaster’s right to be biased and incompetent will ensure a livelier media landscape, if not a more accurate one. O’Brien and his fellow no platform campaigners can now have no reasonable complaint that Britain’s media rules require perfect balance, or indeed basic competence. If a broadcaster intends to make a point based on something they read on twitter, without checking the facts with the target, that’s entirely permitted by Ofcom.
That is at one level a win for the free society, albeit a nuisance for the IEA to deal once again with an incompetent state regulator fanning the delusions of conspiracy theorists peddling smear campaigns.
For those interested in the case, you can find the key documents here: