Ofcom, I have a complaint! Inside the system that deals with your outrage

There are few organisations to whom you can complain that have a legal duty to consider how outraged you are and a statutory code that essentially covers “being offended”. You can complain to an editor, tweet at an airline or get huffy on TripAdvisor – but really, who cares? No-one has to do anything unless they want to. Complain to Ofcom, however, and it must. It’s a legal requirement.

Ofcom’s forays into the bellwether of outrage, as measured by the nation’s response to television and radio, are always instructive. Their findings on the public’s “attitudes towards offensive language”, as laid out in a report this week, are both a little surprising and a bit predictable.

On the one hand, we – the general public – have “increasingly relaxed attitudes about the use of swear words”. We’re fine with “bitch” and “douchebag”, a little iffy on “bell-end” and “son of a bitch”, and only really jumpy on the f-word, the c-word and some very specific sexual acts.

On the other hand, 2020 saw Ofcom receive the highest number of complaints since it sprang to life in 2002. The watchdog received 142,660 of them between April 1 2020 and March 31 2021, an eye-watering 410 per cent rise on the previous 12 months’ total of 34,545. So, we seem to be more offended than ever before.

But parse those numbers, and only three incidents in the top 10 received more than 3,000 irate calls (or e-mails, or letters in green ink). These were, in order: Piers Morgan on Good Morning Britain, for his comments this March on the Duke and Duchess of Sussex’s Oprah Winfrey interview (number one, with 54,453 complaints); then Britain’s Got Talent’s foray into radicalism last September with Diversity’s Black Lives Matter-inspired dance (25,017); then I’m A Celebrity… Get Me Out of Here! which, last November, faced accusations of animal cruelty (11,516).

As the Ofcom report proves, we are not offended by the stuff that outraged Mary Whitehouse. The oral sexathons in Industry passed without complaint; Naked Attraction made no waves. These days, by contrast, it’s race, gender, disability and mental health that get to us. (And animal cruelty. The far-Right may be rising and the climate crisis looming, but some things remain constant in Britain.) For everything else, Ofcom is in the front line of what passes in the UK for the culture wars.

And yet, looking at these record numbers, one thing becomes painfully clear: Ofcom has not upheld these complaints. Piers Morgan, Diversity and ITV’s celebrities are united by the freedom Ofcom grants them. If the petulant squabblers of Right and Left are looking for a referee, Ofcom seems to have left the ring.

“The key thing to remember is that there is no right not to be offended by what you see on TV and radio,” explains Adam Baxter, Ofcom’s director of broadcasting standards. “There are a lot of people who complain to us about a whole swathe of things – that’s their right – and given the culture wars, there will often be people at the poles who may be offended about the same item from a different perspective… But a lot of [the complaints] we never pursue.”

There’s a broad misconception, Baxter adds, that the higher the volume of complaints, the more likely it is that they’ll be upheld. But social media campaigns and headlines that scream “viewer outrage” are not Ofcom’s concern. Everything is judged under section one to four of the Ofcom Broadcasting Code: “Protecting the Under-Eighteens” (section one); “Harm and Offence” (section two); “Crime, Disorder, Hatred and Abuse” (section three) and “Religion” (section four). There’s also “Impartiality” and “Elections” and “Commercial Prominence”, but these are less a measure of the national mood.

Most of “Harm and Offence” is about factual accuracy: claiming the occult is real, hypnotising the audience or running an unfair competition. “If you say, ‘Take these magic beans to cure cancer’,” Baxter says, “huge alarm bells ring.” Where the fun begins is Rule 2.3, which refers to “generally accepted standards” for “material which may cause offence”. Things that must be “justified by context” include “offensive language, violence, sex, sexual violence, humiliation, distress, violation of human dignity, discriminatory treatment or language… and [the] treatment of people who appear to be put at risk of significant harm as a result of taking part in a programme”.

Ofcom triages your complaint against this code, and either closes it or moves it on. In 2020/21, for instance, there were 128,825 complaints made. Of these, 6,511 went forward and became cases; 25 went on to full investigations and only 10 of those were found to be in breach of the code. In 2019/20, by comparison, only 25,834 complaints were made but 40 were upheld. We are shouting louder but about the wrong things.

If an investigation is launched, Ofcom’s 40-strong standards team creates a draft decision that’s passed to a panel composed of two members drawn from the regulator’s Content Board. At the moment, this jury of 16 good men and women includes the chair of the Scottish Environment Protection Agency, a University of Swansea academic and a member of the Advertising Standards Authority, as well as former journalists, businesspeople, producers, teachers, an engineer, commissioning editors, a management consultant and a tech think-tank boss.

The panel’s views are considered by one of Baxter’s fellow standards directors, and stage one ends. Stage two is more back-and-forth with a new Ofcom team, more broadcaster input and a separate two-person panel from the Content Board to give a fresh set of eyes on the decision – like two doctors doing rounds on the ward – before it goes to Baxter.

“We have two stages for fairness,” he explains, “so I have no part in stage one and Sian has no part in stage two – we are kept totally apart from each other.” This raises the delightful image of separate entrances and internal corridors where rulings are discussed in hushed tones. “I am the final decision-maker,” Baxter adds. “But not in a vacuum – I’m not kept in a little glass jar in the corner of Ofcom.” (Another image dashed.)

Over lockdown, most of the harshest rulings – most of the 10 found guilty out of the 25 investigated – were for smaller channels broadcasting harmful content, such as cable stations accusing 5G of causing Covid, or state broadcasters pumping out propaganda in Britain. Ofcom’s standards team has linguistic and cultural experts who can tackle these channels, translating and contextualising.

“We’re researching all the time,” Baxter explains. “‘Offensive language’ is refreshed every five years… Every time we ask, we find that discriminatory words have been growing in salience compared with old-fashioned swearing. There are no prohibitions on specific words. Context is everything. Even the N-word is acceptable, provided the context is appropriate.”

And so the world changes, and “offence” morphs. These days, Ofcom accepts that balance isn’t merely the automatic presence of the opposing point of view. Flat-Earthers and climate change deniers are not required when someone suggests that the world is round and global warming is real.

But the public is getting more cross. Baxter has been in the role since 2008, and while Ofcom doesn’t oversee BBC complaints – those are handled in-house – he knows that the Corporation has seen a huge increase recently. “They used to bump along at about between 200,000 to 250,000 complaints a year, and then after the 2019 election, they shot up to 350,000 complaints, and it’s stayed up there,” he explains. “We saw this step change in 2020–21, and it looks like we’ll be staying at a similar level.

“The whole psychology of complaining is a fascinating area. I wouldn’t want to say what’s going on, as we haven’t done the research. But I think it all boils down to the difference between politics and culture. With Diversity, we decided that they were talking about culture, not politics, so impartiality didn’t matter. But is racism a cultural phenomenon, or is it a political entity?” He pauses. “It’s context… read the research.”