The UK government has published its draft Media Bill aimed at levelling the playing field between linear and streamed content by bringing the streamers under new Ofcom rules. 

Last year the government published a White Paper on media regulation with the aim of updating decades-old broadcasting rules.  It acknowledged that technology has moved on and regulation needs to catch up.

This week, following that White Paper, the government published a draft Media Bill. Its headline changes are:

  • It confirms plans to bring video-on-demand services such as Netflix, Amazon Prime Video, Disney+ under new Ofcom rules and aims to ensure public service broadcasters’ on-demand services are easy to discover on smart TVs and streaming sticks;
  • New reforms to guarantee access to UK radio on smart speakers and cut red tape for commercial radio stations; and
  • Streaming services will be required to provide subtitles, audio description and signing to support people with disabilities.

Video-on-demand services (VoD)

Most video-on-demand services are not covered by Ofcom’s Broadcasting Code, which sets the content standards for harmful, offensive and accurate material found on television. Some services are not regulated in the UK at all, despite being much more popular with younger people than traditional broadcasters are. Consequently, the Media Bill aims to level the playing field between public service broadcasters and video-on-demand services. 

The Bill brings mainstream VoD services under rules similar to those that already apply to linear TV in respect of harmful content and impartiality. This aims to ensure that UK audiences, especially children, are better and more consistently protected from harmful material. Mainstream VoD services which are not based in the UK and are not currently regulated by Ofcom may also be designated as “Tier 1” under regulations yet to be published. Such “Tier 1” mainstream VoD which are not based in the UK will have to comply with many of the rules that currently apply to VoDs regulated in the UK. These include rules relating to advertising, such as the (yet to be introduced) restrictions on advertising HFSS food and drink before the watershed, and the rules on programme sponsorship and product placement. The VoD rules on programme sponsorship and product placement are, however, different to those that apply to linear broadcasters, so the Bill as it stands will not achieve complete consolidation/consistency. It’s also worth noting that the Bill does not appear to extend the rules of European Works requirements to the non-UK Tier 1 VoDs.

VoD services will be required to provide subtitles on 80% of their programmes, while 10% must have audio description and 5 per cent signed interpretation. Subtitles are carried on the majority of VoD programming, but this can be inconsistent across services and audio description and signing are less common.

VoD viewers will now be able to formally complain to Ofcom, and the Bill will strengthen Ofcom’s duty to assess audience protection measures on VoDs such as age ratings and viewer guidance. Ofcom will have more robust powers to investigate and take action to enforce standards if they consider it appropriate, including issuing fines of up to £250,000 and, in the most serious and repeated cases, restricting a service’s availability in the UK.

Public service broadcasting (PSB)

The draft Bill replaces the outdated purposes and objectives for UK PSBs, set out in the Communications Act 2003 and in their individual licences, with a new remit which the government says is better suited for the digital age.

The PSBs will be given greater flexibility as to how they deliver on their obligations, which the government says will make it easier to share distinctively British programming and impartial news with viewers on a range of platforms, including on-demand services. Online programming will now count towards meeting their public service remit, not just on linear TV channels, as it stands today. Ofcom will have new powers, where appropriate and proportionate, to require PSBs to provide more of a particular type of programming if audiences are being underserved.

The government has abandoned its plans to privatise Channel 4.  It will no longer be barred from producing its own content, if it chooses to do so, and will have a new legal duty to consider its long-term sustainability alongside the delivery of its public service remit.

The draft Bill will boost S4C, the Welsh language broadcaster, by removing geographic restrictions – confirming it can broaden its reach in the UK and beyond and offer its content on a range of new digital services.

Major online TV platforms used by a significant number of UK viewers - such as smart TVs, set-top boxes and streaming sticks - will be legally required to carry and prominently feature designated PSB services, such as on-demand platforms like BBC iPlayer, ITVX, All 4, My5, S4C’s Clic and STV Player.

Regulation of radio services

Commercial radio is regulated under legislation developed in the late 1980s, which is no longer fit for purpose as radio transitions from an analogue past to a digital future. As such, in February 2017, the Government consulted on deregulating analogue commercial radio licensing.

Following that consultation, the Media Bill will relax content and format requirements on commercial radio, with the aim of allowing stations a much larger degree of flexibility to update or adapt their services without needing consent from Ofcom, thereby reducing the sector’s regulatory burdens and costs. The reforms will replace requirements based on commitments given in licence applications (in some cases 20 or 30 years ago) with new, clearer requirements for commercial stations to provide national and local news and relevant local information (traffic and travel) to reflect the importance and value of these services to the public. The reforms also include additional provisions to help manage an eventual switchover of radio to digital and to enable Ofcom to licence overseas radio stations.

The Bill will also provide that UK radio stations are not charged by tech 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.

Listed events regime

Under current rules, the listed events regime prohibits the exclusive broadcast of an event on the list drawn up by the Secretary of State without prior consent from Ofcom and ensures the availability of the rights to live coverage of listed events to free to air broadcasters who meet certain criteria. Broadcast channels which are received by 95% of the UK population and which are free to air are categorised as "qualifying services". 

The new Bill updates the listed events regime to ensure that the range of "qualifying services" that fall within the scope of the regime includes both television programme services and internet programme services, and amends the conditions so that qualifying services must be provided by a PSB (this is currently the de facto case as only channels that meet this criteria are provided by PSBs). 

Listed events include major sporting events such as the Olympic Games, FIFA World Cup, FA Cup Final, the Grand National and Wimbledon finals. DCMS carried out a review last year and continues to review whether making listed events available on digital channels only should satisfy the requirement. It says it will provide a further update in due course.

The Media Bill also reflects the government’s commitment to repeal section 40 of the Crime and Courts Act 2013, which is not in force, but would require news publishers to pay both sides’ costs in any legal proceedings if not a member of an approved regulator.

Next steps

The government has published the draft Bill and explanatory notes to allow for further engagement with the industry. The government says that it will introduce the Bill as soon as Parliamentary time allows.