A "golden age" of television? - Government announces overhaul of broadcasting legislation
On 28 April the government published a white paper (1) setting out its vision for the broadcasting sector. Plans include regulation for streaming services, changes to the public service broadcasting regime, and reform to broadcasting rights for major sporting events.
What are the proposals?
The government has promised a new "golden age" of programming with proposals which the DCMS says will help public service broadcasters compete in the digital age and support the independent production sector. These include:
1. A new public service remit
- The government plans to 'overhaul and simplify' broadcasting legislation, including revisiting the definition and role of a public service broadcaster ('PSB'). Public service broadcasting refers to broadcasting intended for public benefit rather than purely to serve commercial interests. Currently all PSBs must achieve the purposes and objectives set out in s. 264 Communications Act 2003. Each PSB also has their own unique remit set out in legislation, and additional commitments in their broadcasting licences. The DCMS intends to simplify this structure by creating a new, shorter, remit that will recognise 'that public service takes many forms, including culturally relevant, economically important and democratically impactful content'. Each PSB will continue to have their own individual channel remit.
- A consultation will be launched on new rules to protect distinctively British programming (deemed by some as "Rules for Britishness"). The consultation arises from concerns that the globalisation of broadcasting may result in programmes produced in the UK becoming indistinguishable from those produced elsewhere.
- PSBs will be given greater flexibility in how they deliver their remits. Content streamed via on-demand platforms could soon be counted in the quota of "public service" content that PSBs are required to produce; at present only content from linear channels counts towards this quota.
- The government does not intend to open up the public service broadcasting system to other providers (as recommended by Ofcom in July 2021) but says it will keep this under review.
2. Regulation of online streaming services
- The government intends to bring larger non-UK video-on-demand services ('VoD') under Ofcom regulation and subject to a new regulatory Code. The proposed scheme, announced following the government's consultation on audience protection, aims to promote consistent standards across linear and on-demand services. Regulation will take place in a two-tier system, whereby larger VoD services which target UK audiences but are not currently regulated in the UK will have similar obligations to traditional UK broadcasters, but on-demand services that have a smaller audience size and pose lower risks to viewers will continue under existing rules. There will be scope for niche streaming sites, which cater for a select audience and may be more likely to broadcast harmful material, to be brought under the scope of the enhanced regulations through powers awarded to the Secretary of State.
- Most UK VoD services are already required to adhere to existing On-Demand Programme Services ('ODPS') regulations around product placement, protecting under-18s, and prohibitions on inciting hatred. Whilst these regulations will continue, designated UK VoD services will also be subject to the new Code, which is expected to introduce stricter rules around a broader range of potentially harmful material, including unchallenged health claims or COVID misinformation (essentially bringing across the existing Broadcasting Code but with the rules and guidance tailored to the requirements of on-demand distribution). DCMS has recognised the difficulties this could pose with potential 'double-layering of obligations' and says the proposed system will need careful consideration by Ofcom.
- UK viewers will have an enhanced ability to complain to Ofcom about content on streaming platforms, and Ofcom will have an enhanced duty to assess the audience protection measures put in place. Age ratings and content warnings for streaming services will not be mandated but will continue to be encouraged. It is envisaged that penalties under the new Code could be up to £250,000 or 5% of annual turnover, equivalent to the maximum penalties available under the Broadcasting Code.
3. Updated prominence regulation
- The government intends to update prominence rules so that online television platforms, including smart TVs and pay TV services, are legally required to carry designated PSB on-demand services and to ensure their services are easy to find on these interfaces. The proposal envisages that PSBs will be required to "offer" their on-demand services to platforms, and platforms required to "carry" these services. Ofcom will acquire a dispute resolution function to intervene to support negotiations between platforms and PSBs, as well as enforcement powers and the ability to impose fines if appropriate.
4. Changes to the broadcasting landscape
- The government has reiterated its intention to privatise Channel 4, claiming this will diversify its revenue streams and allow it to better compete with streaming services. The decision has been fiercely opposed by many in the industry, with warnings that privatisation would deal a heavy blow to the independent sector, dilute creativity, and only serve government interests.
- The government will also consider whether to introduce a revenue cap for "qualifying independent" producer status in light of the emergence of "super indies" in the sector. The aim is to ensure that independent producer status remains effective for promoting growth and diversity in the sector. Other plans include updates to the "terms of trade" rules which protect independent producers in their commissioning negotiations with PSBs; updates will address the increasing importance of on-demand commissioning to both broadcasters and production companies.
5. Reform to sports broadcasting rights
- Rules governing broadcasting rights for sporting events are set to be updated, with DCMS looking to designate certain "crown jewel" sporting events as a benefit awarded exclusively to public service broadcasters.
- Currently, linear broadcasting rights are covered by the "listed events" regime; this ensures all major sporting events can be viewed live and for free by the UK public. Qualification to broadcast these events requires a service that is free to view and accessible to 95% of the UK; all services which currently qualify are operated by the free-to-air PSBs. However, this regime does not include digital rights, meaning PSBs are forced to compete with streaming platforms for the coverage of important sporting events. The government will launch a review to consider whether the scope of the listed events regime should be extended to include digital rights, which would ensure that the public could view significant sporting events free on digital platforms.
What's the justification?
The government cite rapid technological developments, changes in viewing habits and the globalisation of programming as reasons behind the reform of the Communications Act, which they view as retrograde and built for an analogue age. DCMS says that the proposed reforms will allow public service broadcasters to compete in the digital age and will ensure consistent standards across the industry.
Is it necessary?
It is undeniable that competition for viewers and advertising revenue has increased rapidly over recent years, and the shape of the broadcasting landscape is markedly different in 2022 to that in place in 2003, when significant broadcasting reform last occurred.
Whilst consistent standards across VoD and linear channels are important to ensure adequate viewer protections and fair and accurate programming, in practice PSBs that also operate on-demand services will already be commissioning and producing programmes for those services which comply with the stringent requirements set out in the Broadcasting Code. Larger non-UK streaming services also have their own audience protection measures in place, and many will adhere to UK regulation and Ofcom decisions voluntarily. So, whilst Ofcom's duties and powers of oversight and enforcement are expected to massively increase, the practical effect of a new VoD Code on actual standards of programming is uncertain.
Industry commentators also warn that the unique role fulfilled by PSBs in the UK should not be forgone or forgotten by the government in the interests of reform. Invigorating competition in the digital age is no doubt important, but the importance of protecting and promoting democratic debate on difficult subjects cannot be understated.