What is the current 'state of play' of the draft UK Media Bill?
Published on 3rd Aug 2023
The pre-legislative scrutiny stage has concluded with eyes now on the next steps for the UK broadcasting reforms
The Department for Culture, Media, and Sport (DCMS) select committee has been hearing evidence from key stakeholder since the long-anticipated draft Media Bill was published on 29 March 2023. Contributors have included public service broadcasters (PSBs), video-on-demand (VoD) providers and industry bodies.
The UK government released its overarching impact assessment on the draft bill on 29 June 2023, which aims at reviewing the effect of the proposed legislation on the media industry, the cost of the proposals and analysing whether it would achieve the government's policy objectives. Specific impact assessments on the digital prominence, PSB and VoD reforms were also published.
White paper 2022
Nadine Dorries, the secretary of state for DCMS, presented the white paper, "Up next - the government’s vision for the broadcasting sector", to Parliament on 28 April 2022, outlining a set of proposals to reform the UK's legal framework for broadcast and VoD.
Draft Media Bill published
Almost a year on from the broadcasting policy paper, the draft Media Bill was published on 29 March 2023. The bill followed the framework set out in the white paper, albeit with a few surprises, such as a new regime for voice-activated smart speakers. The draft legislation proposes a major overhaul of UK broadcast law, with TV and radio broadcasters, OTT services, digital content selection platforms and smart devices all affected by the proposed legislation.
On the 19 April, the DCMS select committee published a call for evidence, inviting stakeholders to provide written and oral feedback on the bill. Ofcom, Sky, Google, Amazon, Netflix, Channel 4, BBC and TuneIn are among those that have given evidence. This has covered a range of key issues for PSBs, VoD services, radio broadcasters, smart speakers, audio platforms and sports.
The deadline for written submissions, as part of the draft Medial Bill's pre-legislative scrutiny, was 17 May (you can find the submissions here). Oral evidence commenced on 6 June and the final hearing took place on 4 July, marking the end of this phase of the pre-legislative process.
PSB prominence and remit
One of the main areas of focus of the oral and written evidence was the proposal to ensure prominence of PSB-operated internet programme services on television selection services. Although there was a clear consensus from PSB services that the general principle is correct, many noted that the drafting and scope could be tightened up in some areas, and more future proofed.
For example, more clearly setting out in the Bill what constitutes a regulated television selection service and the scope of application of the prominence regime to individual items of content (as well as full PSB services and apps).
PSBs and industry bodies also provided feedback on the new PSB remit. In particular, stakeholders considered the removal of quotas for particular genres, how this would impact diversity of programming and the importance of original content quotas to UK production companies.
Respondants also considered what the criteria for a "tier one" service should look like. Overall, there was concern that a tiered regulatory system would not be entirely consistent with the aspiration to align the VoD regime with the linear approach.
A number of industry participants commented on the implementation of a new VoD code. In particular, stakeholders considered that they would benefit from a longer grace period in order to ensure compliance with the code, given the far-reaching ramifications of these changes and the need to re-assess all of the legacy content in (often extensive) VoD libraries.
VoD services discussed the bill's accessibility requirements. These changes were generally welcomed and many were of the view that access services are already being provided to a high standard.
However, it was suggested that the bill should clarify that the legal responsibility for compliance would fall upon the service provider rather than platforms (although depending on the technical distribution arrangements, a content provider may need to rely on a thirdparty platform to enable access services in some instances).
Radio selection services
Platforms and industry bodies provided feedback on the new obligations surrounding radio selection services. Some concern was expressed about the asymmetry of a "must carry" obligation for these selection services, without a corresponding 'must offer' for the content providers.
Questions were also raised as to why the scope of the bill is limited to voice-activated smart speakers, rather than a broader range of connected devices and platforms used to access internet radio, including connected car systems.
Major sports events
PSB and other platforms discussed the proposal to extend the listed events regime to PSB-operated internet programme services. Unsurprisingly, non-PSB content providers felt that broadcasting listed events should not be within the exclusive remit of the PSBs, provided they were still available on a free-to-air basis.
Impact assessments published
The government's overarching impact assessment was published on 29 June 2023. This covers the policy rational, market context and cost benefit analyses.
This assessment concludes that PSBs will benefit from most provisions of the bill, such as prominence and the primary costs will simply be the time spent familiarising themselves with the new rules.
On the other hand, subscription VoD services may experience significant additional costs if they are excluded from prominent positions on interfaces in favour of PSB services. In addition, VoD services may experience significant additional costs in complying with new standards and accessibility codes, if they fall within the tier one category.
Finally, the government acknowledges that all measures will impact Ofcom, but an exact quantification is not possible as the proposals are early stage. Nonetheless, the assessment notes that any costs to Ofcom will be "appropriately and proportionately recovered through incremental fees levied on the businesses in scope of any regime".
On 21 July, the DCMS select committee published its report on the radio and smart speaker elements of the draft Media Bill. The report notes that during the evidence phase of the inquiry into the draft bill, the written and oral evidence indicated that the measures relating to radio are the most contentious aspects. In particular, the evidence highlighted differing views on the provisions relating to the interaction between radio stations and radio selection platforms; that is, the platforms used by audiences to access those stations.
Given these concerns, DCMS has published its report as early as possible and with the intention that the government can now engage with and address those concerns in the version of the bill introduced to Parliament, expected in the autumn of 2023. The committee intends to report on the remaining provisions of the bill after the summer.
The final oral hearing took place on the 4 July 2023, bringing the pre-legislative scrutiny of the draft to an end. The DCMS select committee has reported on the radio measures and is expected to report its other findings and recommendations on the rest of the bill to the government later in the summer.
The government may then decide to make amendments before formally introducing the bill to Parliament, where it will go through the usual legislative process in each house
Osborne Clarke comment
The draft Media Bill contains sweeping reforms to the legislative framework regulating PSBs and other providers. Part two of the draft introduces new rules for the prominence of public service VoD and other internet-delivered content on television platforms. With digital prominence a focus for the industry for many years, the reforms are not unexpected but leave issues unanswered.
This Insight was updated on 7 August 2023.
Our next Insight in this series will explore digital prominence, as the industry seeks clarity on statutory obligations to remain competitive in an online environment.
You can find more detail on developments at our Media Bill Hub, which will be launched shortly, including articles and podcasts looking at each part of the bill.