Ofcom cannot be trusted to regulate our speech

Ofcom is expanding. On top of regulating all radio and TV licensed for broadcast in the UK, it’s now set to receive yet more powers. Under the Online Safety Bill (currently awaiting royal assent) and the draft Media Bill, Ofcom can look forward to getting oversight over social-media giants like Facebook and X, as well as streaming services like Netflix.

Ofcom may have jumped the gun slightly by going on a hiring spree. On Monday, a new online-safety director, Fadzai Madzingira, had to be suspended. Why? It suddenly surfaced that she had liked an Instagram post accusing Israel of ‘the ethnic cleansing and genocide of Palestinians’. She even apparently posted a lengthy rant on her own Instagram calling Israel an ‘apartheid state’.

This has been a particularly embarrassing episode for Ofcom. Madzingira was appointed with great fanfare just four months ago. She was billed as a star recruit from Zimbabwe. She had a Rhodes scholarship, two master’s degrees from Oxford University and had worked at Meta (the owner of Facebook) and software giant Salesforce.

One bad apple, you might say. Possibly. But this should still worry us. Ofcom is the body tasked with deciding what large swathes of our media are allowed to tell us. In other words, it is the outfit responsible for deciding how much free speech we are permitted to hear. And soon, it will have those powers enormously augmented.

Under the new legislation, Ofcom’s powers over social media and streaming will be wide-ranging. A great deal of discretion will be given to it in how it enforces its new duties. And as things stand, once Ofcom has given an order to censor something, the rights to appeal against it are deliberately restrictive.

Currently, media outlets that fall foul of Ofcom regulations can appeal to a court called the Upper Tribunal. But that court can only intervene on a judicial-review basis. That means the appellant must prove that Ofcom either got the law wrong, or that no reasonable body would have made the decision Ofcom did. The chances of reversing an Ofcom decision are next to nil.

The prospect of a woke fanatic like Fadzai Madzingira being entrusted with such unchecked power over social media is frightening. Indeed, we need to be alarmed at the whole idea of giving such wide discretionary powers to an essentially technocratic body like Ofcom. These powers include both writing the rules for what content is permissible, and then interpreting and enforcing those same rules.

Even in its current function of regulating the broadcast media, Ofcom has a history of acting remarkably restrictively and in favour of the establishment. It has, for example, rapped TalkRadio (now TalkTV) over the knuckles for allowing presenter James Whale to express what it saw as the ‘wrong’ attitudes to sexual assault. It has also previously come down hard on broadcasters that failed to toe the government line on Covid-19.

Most recently, Ofcom has demanded that GB News answer several complaints alleging news bias. Of course, GB News is known for its right-wing political leanings. But channels that skew woke face no penalty for this. For some reason, they are deemed to be perfectly impartial and balanced.

Nor has Ofcom’s interference been limited to the content that appears on screen or on radio. In the past, its leaders have also demanded quotas of all sorts for those working in the media, based on race, disability, sexuality, language and even place of birth.

In all likelihood, Ofcom will be just as authoritarian in its approach to social media and streaming services. There is every reason to think that its new powers will be applied with anything but a light touch.

For one thing, the Ofcom management is largely made up of those who have climbed the greasy pole of the civil service, big corporations or quangos. This is a constituency with a firm instinct to keep different interests happy by compromise. That makes it all the more unlikely that Ofcom will robustly defend free speech or the rights of ordinary people to choose what they want to hear or watch.

For another, Ofcom faces enormous external pressure to remain censorious. Parliament’s Digital, Culture, Media and Sport Committee, for example, is always keen on calling for more controls on the broadcast environment. There are also numerous pressure groups and NGOs who look to Ofcom as a tool for silencing their critics.

The omens, in short, are not good. But they are not hopeless, either. Ofcom does have an opportunity, if it wants to take it, to resist establishment pressure and apply a genuinely light touch to the bodies it is now charged with regulating. The ball lies in its court.

For far too long, Ofcom has acted as a representative of the vinho-verde-drinking classes, telling the rest of us, for our own good, what we can and can’t watch or listen to. Some things never change. One of them, I fear, is probably Ofcom.

Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.