Ofcom no longer has a place to hide. It must soon take sides in the increasingly divisive “culture wars” in the UK. This is because the regulator must shortly take a decision on the high profile complaint by Meghan Markle, Duchess of Sussex, against the outspoken remarks by Piers Morgan on ITV’s Good Morning Britain on 8 March 2021 when Morgan said he “didn’t believe a word” of Markle’s interview with Oprah Winfrey.

Morgan stormed off the set after an on screen altercation with fellow presenter, Alex Beresford, about the interview. Morgan subsequently left the programme after – reportedly – being asked by ITV to apologize and the presenter refusing to do so. The high profile nature of the Duchess’ interview, and controversial personalities of both Markle and Morgan, helped ensure that over 57,000 complaints were made to Ofcom – a record.

Morgan storms off the GMB set

One of those complaints was made by the Duchess, presumably on her behalf by her London law firm, Schillings, but it has not been published. It has been suggested though that Meghan’s complaint was not about Piers Morgan’s dismissive complaints against her, but about mental health generally and the Duchess’ attempts to deal with her mental health issues. Ofcom announced that it was formally investigating the programme but under which rules in the Broadcasting Code is not clear. My informed guess, after years dealing with such complaints at Ofcom, is Rules 2.1 and 2.3 (viewers must be adequately protected from harmful and/or offensive material; and offensive material must be justified by the context), and – perhaps – Rule 3.3 (material abusive or derogatory of individuals or groups must be justified by the context).

Why is this case so perilous for Ofcom? It must reach a decision in this case. And however carefully Ofcom drafts their determination – the Code was breached or it was not – it will receive wide publicity. The decision will inevitably be interpreted by the media, and the public in general, as Ofcom siding either with Meghan Markle (and her perceived “woke” views) or with Piers Morgan (and his perceived “anti-woke” opinions). The meaning given to “generally accepted standards” and “justified by context”, and weight accorded to freedom of expression will be central to Ofcom’s decision-making. Whatever the decision, it may also play into the re-run race to become Ofcom Chair, and if Ofcom opts to uphold the complaints and be seen in a number of quarters as siding with Meghan, it may perhaps encourage the government to seek to appoint someone with more “anti-woke” opinions like Paul Dacre, the former editor of The Daily Mail.

Leaders of Ofcom are clearly aware of the risks. A straw in the wind was a recent decision about the Talking Pictures channel, which specialises in showing old TV series and films from the archives. Inevitably some of these programmes contain language and material which can shock and offend some people in 2021 in ways inconceivable when the shows were first made and shown decades before. An example was the TV series Rogue’s Rock produced in the 1970s.

A still from Rogue’s Rock

A niche channel, with largely elderly viewers who have audience expectations different to many younger viewers, and having previously been been admonished by Ofcom, Talking Pictures had begun giving warnings to viewers before showing potentially controversial material. One recent episode shown on the channel included a ‘blackface’ scene. This led to one complaint to Ofcom, which launched a formal investigation. The case prompted Lord Grade, the former BBC and ITV chairman, to write a letter to Ofcom warning that the watchdog must not take sides in the “culture war”. An investigation would serve to “patronise, infantilise and demean” the intelligence of the audience, Lord Grade said.

Then, mysteriously and suddenly, the investigation was ended by Ofcom – before reaching a conclusion. No explanation was given as to why – and who at – Ofcom had reversed the decision to open the investigation. Almost certainly a senior executive or executives understood how potentially damaging the outcome might be for Ofcom in terms of publicity, especially if Talking Pictures were to be sanctioned.

The Meghan/Morgan case is many times more treacherous for the regulator than the Talking Pictures one in terms of Ofcom being seen to take sides in the “culture war”. Whatever its final decision on the Good Morning Britain complaints, Ofcom will face brickbats. Broadcasters, lawyers and the public will watch and read about the decision and argue and be divided about it. If senior executives at Ofcom are not watching the progress of this case like hawks, they would be well advised to start now.

It is already almost three months since Piers Morgan walked off the Good Morning Britain set. My prediction is that Ofcom will not be in any hurry at all to publish their decision in this case. The determination will go through many drafts, and not see the light of days until late summer at the earliest.