Like a good many turns on Britain’s Got Talent, dance troupe Diversity don’t do subtle. Slickly danced and well choreographed, its semi-final performance on 5 September nevertheless contained what looked remarkably like an uncritical and overt plug for Black Lives Matter. Among other things, it encompassed a policeman kneeling on a black man’s neck, a film of a burning car and a sequence of an activist kicking and demolishing a line of riot shields.

Unsurprisingly, nearly 25,000 complaints flooded Ofcom, almost a record for a single broadcast. ITV’s programme had, it was said, broken specific rules set by Ofcom in the Broadcasting Code, in that it had been unsuitable for children; contained scenes of violence, humiliation and apparent anti-white racism; condoned violence; and shown palpable political partisanship. Last Thursday, however, Ofcom summarily dismissed the complaints as undeserving of investigation.

Ofcom is not so much prudential regulator as a menace to both spontaneity and free speech

The right-leaning press and conservative Twittersphere were predictably unimpressed. And on one level one can see why. Ofcom published its justification for not investigating, and its reasoning was somewhat curious. The performance had been, it said, perfectly family-friendly, since in its view the imagery – violence to an arrestee, burning cars, and attacks on riot shields – had not been graphic. Nor had there been racism or condonation of violent behaviour; and besides, a few minutes after the image of a burning car there had been reassuring images of people clapping in thanks to the NHS, so that was all right. And the routine had not really been political, because no-one had explicitly said they supported the political programme of BLM. Much of this can be politely described as a mixture of naivete, disingenuousness and what appears to be a thinly disguised desire in Ofcom to reassure Diversity that the troupe needn’t worry about a few tiresome conservatives, because they could rely on the woke regulator to be on their side.

Nevertheless, there can be no doubt that – on this issue – Ofcom made the right call. ITV were right to broadcast the routine, and Ofcom to exonerate it for having done so. Even if the performance in question was mostly made up of heavy-handed left-wing propaganda aimed at boosting BLM’s agenda, this is a classic case where artistic freedom in a controversial cause ought to be upheld. However many complaints may have been received, the right response is as follows: if you don’t like it, don’t watch it. This was particularly so, since BGT is a variety show rather than a news or current affairs programme and thus a case where the political impartiality requirement applies less strictly.

Having said that, the whole episode raises a deeper question: should Ofcom or anyone else continue to have the right to control the content of broadcast programming? The closer one looks, the more difficult it is to defend.

Government control over what publishers can say and whom they are allowed to offend would be an intolerable interference

For one thing, for a censor Ofcom is a bit of a pantomime horse. A super-department set up by the Blair government in 2003, it now serves two very different functions. Most of its duties are actually technocratic and concerned with furthering the government’s policy-based agenda: supervising the Royal Mail, handing out wireless frequencies, regulating phone companies and handling the technicalities of broadband so as to ensure the right measure of efficiency and competition. These sit slightly uncomfortably with the delicate social-political function of regulating broadcasts for undesirable content, which Ofcom inherited as a duty in 2003 from two distinct bodies (the Broadcasting Standards Council and the Independent Television Commission).

Also, there is some indication that micro-managerial instincts from the former have infected the latter. So, in contrast to its laissez-faire approach with Diversity, elsewhere Ofcom has been remarkably interventionist. Last year, for example, the body savaged Talk Radio when presenter James Whale showed scepticism in response to complaints by a victim of sexual assault on his programme over the police response she had received. As a result, Ofcom concluded Whale had committed a serious breach of duty by showing insufficient sympathy to the complainant. 

In May this year, Ofcom enthusiastically intervened to sanction broadcasters for airing matter said to oppose the scientific consensus and likely to reduce confidence in government’s attempts to deal with Covid-19. In another case, Ofcom arbitrated against a TV station that provided a platform for David Icke to share his preposterous coronavirus conspiracy theories. Outside of direct regulation, in the last three years or so Ofcom has seized on the broad statutory function entrusted to it to promote equality of opportunity as regards race and sex, imposing demanding employment quotas on broadcasters under threat of fines and even licence withdrawal for non-compliance. Not so much prudential regulator, one might think, as a menace to both spontaneity and free speech.

To sum up, there is now doubt whether, if TV and radio content are to continue to be closely regulated in the UK, Ofcom is the body for the job. Even so, there is the further issue of principle: should anyone be doing it at all? After all, we don’t have censorship of newspapers and magazines (indeed, in the latter case the government rejected imposing any such controls when it rightly ignored the Leveson Inquiry recommendations). Ofcom’s jurisdiction also stops short of the Internet and most Net-based TV and radio, and rightly so: government control over what publishers can say, whom they are allowed to offend, and how politically biased they are entitled to be, would be an intolerable interference with free speech.

Is there, then, any justification for maintaining such controls? Only, I would suggest, with enormous, and increasing, difficulty.

Ofcom’s powers need urgent pruning

First of all, the original argument in favour of broadcast content regulation – that there was a limited number of radio frequencies to distribute, and therefore care had to be taken to ensure the available ones went to deserving users – is now largely irrelevant. It made some sense when the ether was the only way, apart from laborious distribution of written material, to reach a mass audience. But now the capacity of the internet is such that it can carry essentially unlimited information. And so, it is difficult to see any plausible reason to regulate one medium more than the other; and since extensive national regulation of the online content is not a practical proposition, there is no reason to continue its application elsewhere.

Secondly, even if we could achieve detailed regulation of all television, radio and similar electronic material irrespective of the medium by which it reaches people, we are still thrown back to the argument based of platform neutrality: what about the written or spoken word? Governments have for some time maintained the position that electronic media are essentially different and more pervasive, and thus need closer monitoring, but such protestations are beginning to wear thin. Only this month, indeed, the English law reform body the Law Commission provisionally recommended treating the online content in the same way as the written word. If there are to be crimes of transmitting unacceptable material, they said, these should apply to all modes of communication without discrimination. 

In short, it is getting more and more difficult to resist the argument that it is time we liberated the airwaves. Ofcom’s powers need urgent pruning – they must be limited to its primary function of distributing and managing the technical resources lying behind the mass distribution of information and other content. Our chosen content should henceforth be subject only to such controls as the general law of libel, privacy and encouragement of criminality. The choice should lie with us, and not with any government office, however well-intentioned.