UK Media Bill introduced to Parliament: what's on for public service TV and video on demand?
Published on 29th Nov 2023
The government has accepted most of the media select committee's recommendations but declined some major proposals
The new Media Bill, which reforms the laws regulating public service broadcasters (PSBs) and brings the regulation of global streaming platforms into line with that of linear TV services, was introduced into the legislative process on 8 November 2023. This follows pre-legislative scrutiny by the House of Commons culture, media and sport select committee.
The bill underwent its second reading on 21 November 2023. The government has also now published its response to the committee's report on the bill, in which it explains why, in the draft legislation now before parliament, it declined to accept some of the committee's recommendations. However, the government has otherwise accepted most of the committee's recommendations.
Streaming loophole closed
The government accepted the recommendation to close the streaming loophole in the listed events regime by including an additional definition of "relevant services" that will capture standalone streaming services. These include those operated by service providers not based in the UK, which would not otherwise be covered under the definition of "internet programme service".
Digital rights and listed event wrap up
It also acknowledged the recommendation that digital rights (on-demand and other digital content) should be wrapped up in the listed events regime, thereby reserving listed events exclusively as a PSB benefit, but it is still considering this "complex issue". It plans to set out more details in due course.
Must-offer, must-carry agreements
The government agreed with recommendations in relation to the negotiation of must-offer must-carry agreements between PSBs and online services. These amended the bill to clarify the "agreement objective" relating to PSB sustainability to better reflect how deals are made; that is, there is no requirement for payment or transfers of value to PSBs (or to TV platforms). However, there may be instances where this is appropriate; for example, to cover bespoke integration costs.
Also, the explanatory notes comment that must-offer, must-carry arrangements are "underpinned by a mutual recognition that the respective value of carriage fees and payments for content should level each other out (referred to as a zero net fee arrangement)".
The government also accepted the committee's recommendation for mitigation measures to protect the independent production sector when Channel 4's publisher-broadcaster restriction is removed. Accordingly, the government announced that:
- the proportion of programmes Channel 4 will have to commission from independent production companies will be increased from 25% to 35%;
- Ofcom will be given new duties to review how Channel 4 uses its new freedoms; and
- Ofcom will be required to review the impact of Channel 4 developing its own production capability, should it choose to do so.
The bill also includes some interesting additions that weren't proposed by the committee. In the listed events regime, for example, there is now specific provision for multi-sport events, such as the Olympics, where PSBs may have the right to show various concurrent streams (for example, via pop-up OTT (over the top) channels).
Effectively, the changes mean that consent from Ofcom will not be required to show live coverage of these multi-sport events where a non-PSB service has acquired rights to show "adequate live coverage" of that event (or "adequate alternative coverage" in relation to highlights of Group B events). In practice, this amendment is designed to allow rights-sharing partnership arrangements between PSB and non-PSB services to continue in relation to multi-sport events, as they do at present.
Digital PSB prominence
Part 2 of the bill, entitled "Prominence on Television Selection Services", is designed to ensure that PSB content continues to be easy to find for UK audiences using streaming and on-demand services. The government declined to upgrade the descriptor for prominence from "an appropriate degree of prominence" to "a significant degree of prominence", as recommended by the committee, arguing that it needed to strike the right balance between ensuring public service content is easy to find, and providing flexibility across different user interfaces.
In the government's view, requiring "significant" prominence would pose operability challenges, as it would be at odds with the existing linear prominence regime (which refers to "appropriate" prominence) and too inflexible, for example, to account for regional variation. The government points out, however, that it has provided additional clarity around the agreement objectives.
Public service remit
The government also declined to add back in to the bill obligations on PSBs to provide specific genres of content, saying that it would not be compatible with the aim to simplify and modernise the remit, which has been made shorter and replaces what the government calls "the 14 overlapping purposes and objectives".
However, the government says that it has reflected on the committee's recommendation and has amended the bill to require that "the range of genres of audiovisual content made available by the public service broadcasters (taken together) constitutes an appropriate range of genres". In the government’s view, this revised drafting strikes the right balance between delivering a streamlined remit for public service television, while retaining a clear obligation on PSBs to deliver a range of genres.
The government did, however, accept the committee's recommendation that the 30-day rule, which is the minimum time that on-demand content must be available for in order to count towards the public service remit, should be varied depending on the type of content and has made news and sports on-demand programming exempt from the requirement.
The government also declined to make all VoD services subject to a new VoD code of practice and has decided to continue with its tiered approach, under which only "Tier 1" services will be made subject to the new VoD code.
In support of its position, the government cited evidence showing that applying a VoD code to a small, niche VoD service that does not provide TV-like content, such as a football team's VoD service, could unfairly penalise them with little or no benefit to audience protection. However, the government has amended the bill so that smaller services can be placed into "Tier 1" if evidence emerges of potential harm.
The government did, however, accept the committee's recommendation of laying a list of services before Parliament no less than five sitting days before the statutory designation is made.
Osborne Clarke comment
In deciding not to change "appropriate" to "significant" when it comes to prominence of PSB content, the government noted that, looking at the evidence submitted during the pre-legislative scrutiny of the bill, there is no consensus on the issue amongst PSBs. It is a complex issue and, while it may lead to some platforms preferencing their own content, Ofcom told the committee that "appropriate" works well from an enforcement perspective and aligns with their approach under the existing regime.
As for the committee's concerns over the removal of the requirement for PSBs to provide specific genres of content, that was always going to be a difficult one to persuade the government to amend. It would have meant a rowing back on one of the government's main aims: to simplify and modernise the broadcasting regulatory landscape and ensure that PSBs are not left behind.
In any event, the bill remains good news for PSBs and presents compliance challenges for platforms, especially for VoD services that are caught by the tiered regime and will have to comply with much stricter content and accessibility standards than currently. However, smaller VoD services that do not provide TV-like content will be relieved that, as the bill stands today, the current light-touch regime will continue to apply.
Please visit our Media Bill Hub to stay up to date on the latest developments.
Rachel Asaker, a trainee solicitor at Osborne Clarke, contributed to this Insight.