UK Government’s draft Media Bill is published

The question

How will the Government’s new draft Media Bill (Bill) affect UK broadcasters?

The key takeaway

The draft Bill is a key change in the media landscape, particularly affecting Public Service Broadcasters (PSB) and streaming companies through implementing consistent standards across traditional broadcasting and video on demand (VOD) services. However, its impact is slightly up for debate, with many of these companies already complying with Ofcom and UK regulation voluntarily.

The background

Following a White Paper published in April 2022, the UK Government’s objective to modernise broadcasting law, including reshaping the regulatory environment for public service broadcasters, is being put into practice with the publication of the Department for Digital, Culture, Media and Sport’s (DCMS) draft Bill.

The development

There are several key developments which will have a significant impact on UK broadcasters. However, the most significant is that Ofcom will be empowered to create and implement a new Video-on-Demand Standards Code (VOD Code). The VOD Code will apply to VOD services domiciled in the UK as well as non-UK VOD providers that engage a sizable UK audience (such as Netflix). The Government anticipates that the VOD Code will bring VOD services in line with the requirements already in place for linear programming under the Ofcom Broadcasting Code. This includes robust requirements relating to providing adequate protections for members of the public from harmful and/or offensive material, ensuring that news is reported with due accuracy, preventing unfair treatment of individuals in programming, and preventing unjustified invasions of privacy.

Ofcom will have a wide range of enforcement and investigative powers under the envisaged VOD Code, including the ability to levy fines of up to £250,000 or 5% of the relevant worldwide revenue, whichever is higher. In the most severe circumstances, Ofcom will be able to restrict the accessibility of VOD services in the UK.

Significant legislative changes include:

• giving PSBs more freedom in how they fulfil their public service requirements, including the ability to use content from VOD services
• ensuring that public service content is given enough prominence on a variety of television platforms, including smart TVs, set-top boxes, and streaming sticks, and
• regulating the commercial relationships between radio stations and radio selection services to ensure, amongst other things, that platforms cannot charge to host and/or distribute live UK radio. This reflects the fact that radio listeners are increasingly moving away from traditional means of tuning into radio broadcasts to listening via the internet on smart speakers.

Why is this important?

This update is long awaited due to the significant changes the broadcast environment has undergone. The addition of VOD services as well as significant technological change has changed the landscape of broadcasting whilst the legislative framework has not been updated since 2003. The draft Bill will bring current legislation in line with the reality of broadcasting in 2023 and beyond. The regulation of VOD services is a significant development and will have a significant impact on how VOD services are able to provide their content to UK audiences, regardless of whether they are established in the UK.

Any practical tips?

VOD services, as well as PSBs that also offer a VOD alternative, should be mindful of the draft Bill and be ready to implement changes so as to ensure compliance. PSBs and VOD services alike should start planning how to implement any necessary changes to their operations or programming to ensure compliance but to also make sure that there is no drop in their offering. Whilst complying with relevant laws is paramount, ensuring customer satisfaction remains key in an extremely competitive industry.

Summer 2023