A month ago Piers Morgan gave the thumbs up to Ofcom’s high profile ruling clearing him of breaching the Broadcasting Code over his comments about Meghan Markle on ITV’s Good Morning Britain. He acclaimed it as a ringing endorsement of freedom of expression and this view was echoed by the British press. Ofcom said its decision was “finely balanced”. But my research has uncovered just how finely balanced.

Several sources at Ofcom confirm that the original Ofcom decision when first drafted was to find that Morgan’s comments about Markle’s mental health (as Markle had revealed in her high profile interview with Oprah Winfrey) DID breach the Code. With such a sensitive decision the top bosses at Ofcom sensibly wished to review it (see my previous blog of 1 June). A combination of Kevin Bakhurst (Group Director, Content and Media Policy), Melanie Dawes (Chief Executive) and the Ofcom Legal Department then had the original decision reversed and the draft rewritten.

Kevin Bakhurst

Thank goodness in my opinion. Much more weight was accorded to ITV’s right to freedom of expression and wording developed stressing that the broadaster should take care in the future when discussing sensitive mental health issues. But clearly within Ofcom there are divided opinions about the importance of freedom of expression, with in this case some staffers being willing to sacrifice it on the altar of avoiding potential harm or offence to viewers – a increasingly contested area in light of the ‘culture wars’ and debates about allegedly ‘woke’ ideas we are living through.

Ofcom recognised in the final Good Morning Britain decision that if it had gone the other way (ie a ‘Victory for Meghan’ as the tabloids would have dubbed the story) there would have been a ‘chilling’ effect on freedom expression. Every time Ofcom finds a broadcaster in breach of the Code, their compliance and legal advisers take note. Being cautious, they advise prudence. The result is often more and more self-censorship by presenters and broadcasters, and TV and radio being less willing to take risks with offending people.

Remember the Code does not give viewers or listeners any right not to be offended. Rather it states that broadcasters must enforce ‘generally accepted standards’. If offence might be caused by broadcast material then it must be justified by the “context” (Rule 2.3).

The Ofcom meaning of “context” does not include freedom of expression. Instead this pivotal right is woven into the application of the Code via section 3(4)(g) of the 2003 Communications Act and Article 10 of the European Convention on Human Rights. Before deciding that a broadcaster has breached the Code, I also think Ofcom needs to pause and ask every time whether it is having proper regard to the important principle that its regulatory activities should be “targeted ONLY [my emphasis] at cases in which action is needed” (see Ofcom’s general duty in section 3(3)(a) of the 2003 Act).

Within Ofcom however more dissension has been created, according to several sources, by a “vocal minority” who strongly disagree with Ofcom’s decision of 25 August to withdraw from the workplace diversity scheme run by LGBT+ charity Stonewall. Ofcom said it withdrew from the programme because of “the need to remain impartial and independent at all times” and because taking part “poses a conflict or risk of perceived bias”. Other organisations including the Equality and Human Rights Commission and the Cabinet Office have also quit the scheme in recent months.

With Stonewall’s more more high profile stance on trans rights in recent years, membership of the scheme has become controversial in certain circles. It seems some in Ofcom are unwilling to recognise this, and Kevin Bakhurst had to defend the withdrawal at an open meeting in Ofcom. Ofcom’s decision here was an interesting and quite a bold one in my opinion. It was a decision the BBC has not taken – so far. Perhaps all these moves help to explain well-informed rumours that Kevin Bakhurst is a front runner to take over the newly vacant and crucial role of head of news at the BBC.

Nadine Dorries

The BBC will almost inevitably have skirmishes in the coming months and years with the conservative government’s new Culture Secretary, Nadine Dorries, over accusations by some of ‘woke’ politics and a lack of impartiality at the Corporation. In those spats, it may be helpful for the BBC to have as head of news an outside candidate like Bakhurst, untainted by internal problems like the Cliff Richard and Martin Bashir scandals, who is capable of taking tough – and in some quarters unpopular – decisions in our divisive culture wars.

Meanwhile – broadcasters beware. There are some at Ofcom who do not place the same value on freedom of expression as many broadcasters, and many (largely silent) members of their audience, do.