The Audiovisual Media Services Regulations 2020 SI 2020/1062 have been made. They implement certain provisions of the amended Audio-Visual Media Services Directive and make amendments to the Broadcasting Acts of 1990 and 1996 and the Communications Act 2003.
As SCL readers will be aware, the amended Directive includes an expanded scope to encompass dissociable sections of a service, the principal purpose of which is to provide programmes to the general public. As an increasing number of consumers access audiovisual content online, the Directive also seeks to level the playing field between different types of providers. It removes the distinction between broadcast television and on-demand programme services in the rules to protect audiences from harm. It also reinforces protection against incitement to violence or hatred and public provocation to commit terrorist offences. Audiovisual media services are required to protect minors from harmful content using measures proportionate to the potential harm, including through selecting the time of the broadcast, age verification tools or other technical measures. Regulatory authorities must establish and keep an up to date list of providers of audiovisual media services. Lastly, the scope of measures to increase accessibility to audiovisual media services for disabled people is widened to include all disabilities. The Regulations come into force partly on 1 November 2020, and fully on 6 April 2020.
Part 2 makes amendments in respect of broadcast television services. The details of content standards for broadcast television are contained in Ofcom’s Broadcasting Code. In setting standards, Ofcom must secure the standards objectives set out in the 2003 Act, in particular under section 319 of, and Schedule 11A to, that Act. Part 2 makes amendments to those provisions, and changes will also be made to the Broadcasting Code.
Part 3 makes amendments in respect of on-demand programme services. The content standards are contained within Part 3 itself and are amended. The Regulations ensure that standards and advertising rules for on-demand programme services are equivalent to those for broadcast television. In addition, there is a new requirement for a 30% quota for European works on services (being works originating from certain European countries, or from qualifying co-productions involving those states), to be assessed over the course of a year. Exemptions are available where the service has a low turnover or a low audience or it is impracticable or unjustified for those subsections to apply because of the nature or theme of the service. There are bespoke provisions relating to the application of Part 3 to the BBC and the Welsh Authority which are amended.
The Directive also regulates video-sharing platform services for the first time. The Regulations insert a new section Part 4B into the 2003 Act to deal with this. Section 368S defines a video-sharing platform service as “a service providing videos online to members of the public where the person providing the service has general control only over the organisation of the videos on the service, and not over the videos which are available”.
The Directive requires providers of video-sharing platform services to take ‘appropriate measures’ to achieve specified protection purposes. The protection purposes are:
- to protect minors from content and advertising that might impair their physical, mental or moral development;
- to protect the general public from content and advertising that incites violence or hatred towards people with certain protected characteristics; and
- to protect the general public from content and advertising that is a criminal offence under EU law to circulate (i.e. terrorist content, content containing child sexual exploitation and abuse, and racist/xenophobic content).
The system does not involve direct regulation of content on services. Instead, there is regulation of the systems which providers of video-sharing platform services have in place. This reflects the limited level of control that service providers have over the content provided by their services, as material is uploaded by third parties. Service providers have to take “appropriate measures” to deliver the protection purposes, such as having in place and applying certain terms and conditions of service for users; establishing and operating flagging and reporting mechanisms, age verification systems, systems to rate the content and easy-to-access complaints procedures; and the provision of parental control systems. However, there are greater controls for content which is under the direct control of service providers, being audiovisual commercial communications (advertising) that are marketed, sold or arranged by service providers.
Section 368T makes provision for the appropriate regulatory authority for Part 4B. In the first instance it will be Ofcom, but Ofcom has the power to designate any body corporate meeting certain conditions to be a co-regulator. The enforcement powers include power to give enforcement notices and to impose a financial penalty. There is power for the regulatory authority to charge a fee to cover the costs of regulation in section 368Z9, to demand relevant information in section 368Z10, and in section 368Z11 for OFCOM to from time to time produce and publish reports about compliance by providers with the requirements.
There are new duties for the regulatory authority to co-operate and provide information and assistance to other member states and the European Commission to achieve compliance with the Directive.
Part 5 concerns signal integrity measures which prohibit audiovisual media services from being shortened, altered, interrupted, or overlaid for commercial purposes, without the explicit consent of the media service provider. These provisions are subject to “sunsetting” and will cease to have effect after the end of the Brexit transition period. This is because there is a lack of evidence that the behaviour prohibited by the provisions occurs in the UK. Furthermore, the relationship between parties that the provision seeks to regulate could be dealt with within contractual arrangements.
Part 7 contains transitional provisions. Regulation 53 concerns the quota for European works and deals with the issue of the requirement for the remainder of this year. Regulation 54 concerning advance notification relates to the fact that the amendments inserting section 368B(4) (advance notification of a change to an on-demand programme service) and s368V (advance notification of provision of a video-sharing platform service) do not come into force until 6th April 2021. Existing service providers at this date will have a month to provide the necessary notification. Regulation 55 specifies the time period within which matters relating to breach of the signal integrity provisions can be brought to Ofcom’s attention for potential enforcement action.
Ofcom will be issuing new guidance and updating existing guidance, codes and license conditions, for various aspects of the Directive. For broadcast services, this will include: obligations on service providers; content standards; and accessibility. For on-demand services this will include: guidance for services to help them understand whether they meet this definition and fall under UK jurisdiction; content standards; and European Works.
