The decision by Ofcom that a performance by stand up comedian Toju Okorodudu (pictured below) shown on Channel 7 breached the Broadcasting Code is interesting on several fronts for broadcasters, media lawyers and budding comedians. (See 29 August 2023 Ofcom Bulletin). SMB Consultant and former Ofcom executive Trevor Barnes explains why.
In a move that was never official or publicized, during the coronavirus pandemic Ofcom decided to ‘lean out’ from investigations about offence and focus on harm. This was for three major reasons: administrative efficiency; a way of not becoming embroiled in contentious ‘culture wars’; and to free up capacity to work on the looming regulation of online safety.
The move was a sensible one in my view. It has however often left the fortnightly Ofcom Bulletin looking as though it has been on a crash diet, and turned it into dull reading, compared to a few years ago. The Okorodudu/Channel 7 determination is far from dull, and shows that the regulator is still investigating issues – and publishing breach decisions – about offence under the ‘generally accepted standards’ Broadcasting Code Rule 2.3 in appropriate cases.
Toju Okorodudu is an experienced comedian, clearly able to nuance his act to suit the broadcast audience (he first sprang to prominence in the 2014 Britain’s Got Talent auditions). On this occasion though Channel 7 (which aims in its own words to be ‘the cord to link Africans and the continent’s friends and partners in the UK and Europe to the African continent’) bought in various pre-recorded stand up routines performed at the Top Secret Comedy Club on London.
Okorodudu’s act was one of several filmed at the Club and was shown in a programme called Number 6 at lunchtime. The comedian took aim at many targets during his ten minute routine – but especially racism in Britain. To do so he satirised not only white upper class English people and white people from the north of England but also ridiculed individuals with a Chinese background. He had a sequence about Bruce Lee and Popeye masturbating; mimicked holding a woman’s dreadlocks in one hand whilst engaging in sexual intercourse with her from behind; and frequently used the words ‘negro’ and ‘motherfucker’. You should read the Ofcom decision for a more complete description of the offensive content in the act, see here. There was no warning or information about the material before or during the broadcast.
Not surprisingly there was a complaint about the broadcast. Ofcom investigated under Rules 1.3 (children must be protected by appropriate scheduling from unsuitable material); Rule 1.14 (the most offensive language must not be broadcast before the watershed); Rule 1.16 (offensive language broadcast before the watershed must be justified by the context; and in any event must not be frequent before the watershed); and Rule 2.3 (material which may cause offence must be justified by the context).
In response Channel 7 acknowledged there had been a scheduling error, apologised and said it had taken “all the required steps” to prevent it happening again. Breaches of the first three of these rules were slam dunks for Ofcom.
Much more intriguing was Ofcom’s approach about Rule 2.3. The regulator’s decision on this point in my view was clear, well-reasoned and spot on. Rule 2.3 was broken. No reasonable adult viewer of this channel (with its target audience of largely black people), or indeed any Ofcom-regulated TV channel, would have expected content of this nature and strength to be shown just after midday. Ofcom paid due respect to the freedom of expression of comedians to reflect racism in their routines, as well as the right of licensees to broadcast (and audiences to receive) such material. Ofcom also took into account that the word “negro” was used by a black comedian to refer to himself and satirise his experiences of racism.
The decision, understandably, however did not explain what Ofcom’s position would be if this sort of material was broadcast after the 9pm watershed. (Other than for the regulator to suggest audiences would probably expect stronger comedy material like that in this case, to be “scheduled after the watershed and later in the evening”). My view is that Ofcom would likely decide it would not breach the Code – especially if preceded by some form of warning.
Having just had the pleasure of spending a few days at the Edinburgh Fringe, my hope – and indeed expectation – is that Ofcom would continue to accord challenging comedy to same flexibility after the watershed as it has regularly demonstrated in the past. Freedom of expression means nothing if (within reason and the general law, e.g. on hate speech, of course) comedians are not free to cause offence and explore issues that may make some viewers and listeners uncomfortable or even distressed.
On the basis of this Toju Okorodudu decision, Ofcom seems still to be making the right calls on broadcast comedy. Its latest message to broadcasters is that – as with all comedy – timing (or more accurately in a compliance context) scheduling, is all.
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