Key take-aways

The draft Media Bill contains significant changes to the regulation of on-demand programme services (“ODPSs” - as defined in the Media Bill) and television & radio broadcast services. The headline points to note are that:

• ODPSs will be treated more like traditional audio-visual broadcasters – they will be subject to audience protection regulations, have minimum accessibility requirements and be regulated by Ofcom (who are given increased enforcement powers);
• Digital audio devices will be treated more like traditional radio devices – UK radio stations will receive protections including enforced availability on smart speakers without commercial overlay added by the manufacturers; and
• The UK’s public service broadcasters (“PSBs”) will have more flexibility in respect of the content they produce.

Further detail

Public Service Broadcasters vs Commercial On-demand Programme Services

The draft Media Bill, released on 29 March 2023, grants additional rights to the UK’s PSBs (namely BBC, ITV, Channel 4, Channel 5, STV and S4C) with the objective to allow PSBs to effectively compete with the larger (and now mainstream) ODSPs (e.g. Netflix et al).

Specifically, PSB services such as BBC iPlayer must be given sufficient “prominence” on smart TV’s, streaming sticks and other similar devices when viewers are browsing ,enabling them to be found easily and quickly. This brings the requirements of the Communications Act 2003, which guarantees the prominence of PSB’s channels on electronic programme guides etc., in-line with modern technology.

As well as promoting the on-demand offerings of PSBs, the Media Bill seeks to provide additional regulatory oversight over ODPSs. Specific rules will be enacted to ensure that at least 80% of programmes provide subtitles, 10% provide audio description and at least 5% provide signed interpretation (this matches the existing minimum requirements for all traditional broadcast channels – although the BBC, ITV and Channel 4 have higher subtitling requirements). ODPSs which are caught by the new rules will have 5 years to implement these quotas; many already contain accessibility services and so are unlikely to struggle in achieving these deadlines.

The scope of ODPS regulation has increased to include providers: (i) which do not have their head office in the UK; and (ii) those for whom editorial decisions are not taken in the UK. The Media Bill seeks to protect audiences through the use of age ratings, content warnings and parental controls, similar to those already in place for PSBs. Ofcom, who have regulatory oversight, will be charged with producing a content code covering the new protections.

Given the increasing trend of big-draw sporting (and other) events of national being targeted by ODPSs to enhance their viewer offerings in a competitive market, it will come as no surprise to see that Listed Events (including the FIFA World Cup, the Olympics and Wimbledon) are further enshrined as being available via PSBs. To qualify as a service which is permitted to broadcast a Listed Event, the broadcast provided must be: (i) free of charge and, significantly; (ii) by a PSB.

In terms of flexibility, the Media Bill proposes that Channel 4 should no longer be bound by the rules in respect of showing schools programmes. Of even more significance, is the fact that Channel 4 will be able to produce its own content (instead of having to engage with external production companies), should it choose to do so. However, in providing this independence, the Bill also imposes a duty on Channel 4 to carry out its activities sustainably in order to meet costs that are incurred.

Bringing the Radio to the 21st Century

Perhaps as an acceptance that radio services may not be as popular and/or as profitable as they once were, the Media Bill broadens the scope of financial assistance which may be provided to such services. The Secretary of State, in their full discretion, may give financial assistance by way of grant, loan, guarantee or any other form it considers appropriate. They are also empowered to attach to such assistance any conditions deemed necessary including, without limitation, requirements for repayment.

The Media Bill also envisages protection of UK radio in respect of smart speakers, which have become increasingly ubiquitous in recent years, as listeners move away from traditional radios devices and towards internet-based listening. Proposals include ensuring that UK radio stations cannot be charged by device manufacturers for the inclusion of their broadcasts.

Regulated radio selection services (which encompass the most common smart speakers) will have to:

• ensure that they do not overlay content on top of the radio coverage;
• establish complaint procedures for failing to comply with their new duties;
• produce and publish a statement as to how they intend to comply with their new duties; and
• (our personal favourite) “the provider of a regulated radio selection service must, within a reasonable period… secure that, so far as reasonably possible, the service deals effectively with the spoken commands of those users who seek to select and cause to play the relevant radio station” and we wish such providers good luck considering certain UK accents.

Ofcom will issue a code of practice with recommended steps for regulated radio selection services to comply with duties set out in the Media Bill.

Empowerment of Ofcom

The Media Bill will provide for additional level of regulatory oversight and the closing of enforcement gaps. Ofcom’s powers to investigate and request information from a broad range of operator within the media and broadcasting sector have been increased, now including the ability to issue penalties of £250,000 or up-to 5% of worldwide revenue (whichever is greater) for a company's non-compliance with the new prominence requirements. Parent companies will be liable for the failures of their subsidiaries (and vice versa) and where considered appropriate, fines may be ordered against individuals for the failures of their entity.

Concluding thoughts and haiku

Whilst the draft Media Bill brings about significant modernisation of some very outdated rules to protect and grow PSBs, questions are likely to remain about whether it goes far enough and whether in fact the proposed reforms are too late. We'll keep you updated as the Media Bill progresses through parliament, until then here's a summarising haiku to help you remember the bill's content: 

Old media defended

From streamers, speakers and more

Ofcom empowered.