The UK government has published a draft Media Bill, following its Broadcasting White Paper. The Media Bill will reform the legal framework for the regulation of public service broadcasting, make changes to on-demand programme service (ODPS) regulation in the UK and make changes to the legal framework for the regulation of radio; including conferring new powers and duties on Ofcom and the Culture Secretary.
The legislative framework has had to evolve in line with changing technology. Most recently, the proliferation of smart TV’s, coupled with high-speed fixed and mobile internet connections, has allowed viewers to access TV programmes flexibly from an ever greater range of providers. As a result, audiences are increasingly moving away from watching linear television on a traditional TV set.
The Bill therefore makes changes in the following areas:
Public service television
The Bill updates and simplifies the current public service remit for television. It also seeks to change the legislative framework for PSB to give PSBs greater flexibility in how they contribute to that remit. In particular, it provides that public service content made available on a wide range of audiovisual services, including VoD services, can contribute towards fulfilment of the remit. This Part also amends certain quotas (quantitative obligations placed on a PSB, generally to commission and/or broadcast at least a certain amount of a certain type of content) to allow PSBs to deliver against these quotas by way of any on-demand services which are, or are part of, a designated “internet programme service”. It also repeals provisions relating to the public teletext service, which ceased in 2009.
Prominence on television selection services
Prominence effectively means giving designated PSB channels and services a privileged (or prominent) position on services through which audiences access this content. The existing regulatory framework for ensuring carriage and prominence of PSB channels, set out in the Communications Act 2003, does not extend to the PSBs’ online services, including on-demand and livestreamed programme services, nor services that enable viewers to navigate and select TV programmes beyond the TV guide (electronic programme guide), such as the user interfaces on smart TVs, set-top boxes and streaming sticks. The government seeks to give designated PSB services prominence on major TV services.
Public service broadcasters
The government has abandoned its proposal to privatise Channel 4. Channel 4 faces long-term sustainability challenges, partly because the linear advertising revenue on which is substantially relies is in decline. In this context, the Bill gives Channel 4 a new duty which requires that it carries out its activities in a way that it considers most likely to enable Channel 4 to at least sustain its current level of activities over the long term and to securely meet those costs incurred in doing so. The Bill also removes an existing restriction on Channel 4’s involvement in programme-making.
S4C is the UK’s only dedicated Welsh language broadcaster, and as such has a unique cultural and social value, as well as making a vital economic impact. The Bill updates S4C’s public service remit, and provides a greater clarity on its ability to invest and generate commercial revenue. The new unitary board and audit arrangements, recommended by the review and already implemented on an administrative basis, will be given a statutory footing. Finally, the Bill also enables S4C and the BBC to agree an alternative arrangement for BBC support to S4C, which in the government’s view would better suit the evolving broadcasting landscape and the changing way in which people access content.
On-demand programme services
VoD services (on-demand programming services or ODPS), such as Netflix and Amazon Prime Video, are not subject to the Broadcasting Code (with the exception of BB iPlayer), which sets out appropriate standards for content including harmful or offensive material, due accuracy in news, fairness and privacy. The Bill will give Ofcom powers to draft and enforce a new Video-on-demand Code, similar to the Broadcasting Code, to ensure TV-like content will be subject to similar standards. This new regime will be aimed at the largest, most TV-like VoD services with the aim of ensuring that major services which engage UK audiences at scale are subject to the same or similar obligations as UK broadcasters. This section of the Bill also provides for requirements on VoD service providers to ensure that on-demand services are accessible to people with disabilities.
Regulation of radio services
Analogue (AM/FM) commercial radio services in the UK are regulated under a licensing framework which was developed in the 1990s, before the emergence of online listening. The Bill removes some regulatory burdens, including requirements on stations to provide specific genres of content, as well as creating a new, narrow duty to secure the availability to listeners of local news and information. It will also allow for the UK licensing regime to be extended to radio stations based overseas but seeking to provide a service to UK listeners, as well as updating the legislative powers relating to any potential future switch-off of analogue services. It will also expand existing grant-making powers to allow funding for community-related programmes to be made to small commercial stations and producers of audio content.
Regulation of radio selection services
With the rapid growth of listening via voice-activated connected audio devices over recent years, UK radio is increasingly operating within an environment which is occupied by larger platforms with competing services and the capability to drive audiences elsewhere. The Bill aims to ensure that UK radio stations are not charged by these platforms for the provision of their live services to listeners, that platforms cannot overlay content (such as advertising) over the top of those services, and that stations are reliably provided in response to listeners’ voice commands. It will also enable broadcasters to request a default route for their stations to be delivered to listeners.
Miscellaneous changes
Finally, the Bill will also repel an uncommenced provision of the Crime and Courts Act 2013 related to the regulation of news publishers. It also makes amendments to primary broadcasting legislation to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU.
Next steps
The government has published the Bill in draft form so that it can engage with the industry for further comment, and intends to introduce it to parliament as soon as parliamentary time allows.
