Regulating public service broadcasting and streaming services

Answer

What is the Draft Media Bill and when was it published?

Following the government white paper published in April 2022, which set out its vision for the broadcasting sector, the Department for Culture, Media and Sport (DCMS) published its Draft Media Bill on 29 March 2023.

One of the aims behind the bill is to implement the government's plans to modernise broadcasting legislation and to ensure traditional public service broadcasters are able to keep up with the "rapid changes in the media landscape".

The DCMS committee has asked for pre-legislative scrutiny of the bill, with submissions closing on 17 May 2023 at 23:59. You can submit your thoughts on the UK parliament website.

What are the key proposals for reform?

The Draft Media Bill is split into seven areas for reform:                                                                

1. Public service broadcasting

This section focuses on public service broadcasters (PSBs). The current public service remit is set out in the Communications Act 2003  which requires PSBs to provide programming that’s educational, entertaining, diverse and reflective of the cultural activity in the UK. The act also mandates that PSBs must meet particular quotas, such as ensuring that 25% of programming each year is commissioned from independent producers. 

However, the media landscape has changed over the last 20 years, particularly in relation to audience consumption patterns. A significant proportion of the public now consumes content via streaming platforms, such as Netflix and YouTube. As a result, many consider that the current legislative framework – including its extensive and precise remits expected of PSBs – is an overly burdensome and inflexible regime. Therefore, part one of the Draft Media Bill aims to update and simplify the current public service remit for television and provides PSBs with more autonomy in deciding how they meet their public service obligations.

One way this is achieved is by providing PSBs with more freedom and flexibility in how they fulfil their obligations. For example, on-demand services will start to be included when calculating PSBs' fulfillment of their remit and quotas, and quotas relating to programmes commissioned from independent producers will also be calculated by duration in hours (to be specified by the secretary of state), rather than as a percentage of channel time.

2. Prominence on television selection services

As set out in the white paper, the public is increasingly likely to watch content on non-linear platforms such as Video-on-Demand (VoD) and other online streaming services. Under the current framework, PSBs’ linear channels are guaranteed to appear in the first five channels the public find on their TVs – a concept known as appropriate prominence for public service channels.

However, this concept doesn’t extend beyond linear channels for PSBs, meaning that when the public consume content through user interfaces on other online services (eg, on smart TVs, streaming sticks, or set-top boxes) there’s no guarantee that PSBs will be given prominence.

Part two of the bill seeks to give designated PSB services prominence on major TV services beyond linear television services (including user interfaces on smart TVs) to ensure PSBs can properly compete.  

3. Public service broadcasters

Part three of the bill focuses on Channel Four Television Corporation (C4) following the DCMS’ announcement that it’ll remain publicly owned but commercially funded. This part also sets out provisions said to aim to assist C4 with challenges it faces when competing in the age of streaming giants.

C4 is in a unique position in that it currently doesn’t produce any of its own content. Instead, it commissions content from third parties, allowing it to support and protect a thriving independent production sector in the UK. The government proposes to allow C4 the flexibility to make some of its own content and intends to impose a new legal duty for it to promote long-term sustainability when producing and commissioning content – this provision was introduced in view of the concern that the linear advertising revenue which supports the channel may be in decline. 

4. On-demand programme services

Part four of the Draft Media Bill aims to change the way VoD services are regulated by aligning the regulation of content on VoD services with Ofcom's Broadcasting Code. The bill provides Ofcom with the power to draft and enforce a new VoD Code, which, like the Broadcasting Code, will impose standards relating to harmful and offensive material, fairness, privacy and due impartiality.

The bill creates a concept of tier one services – ie, VoD services which’ll be subject to enhanced regulation. The secretary of state will have the power to specify which VoD platforms are labelled tier one, but they’re expected to include the largest VoD providers if they’re not based in the UK.  The intention is to ensure that major services which engage UK audiences at scale are subject to the same obligations and standards as UK linear broadcasters. 

5 and 6. Regulation of radio services and regulation of radio selection services

The government has recognised that listening habits have changed since the current radio licensing framework was developed in the 1990s, including online listening and listening via voice-activated connected audio devices. As a result, the Draft Media Bill focuses on simplifying and modernising the framework for radio licences. As an example, large audio platforms including smart speakers will be required to carry UK-licensed radio services without charging for access or adverts. Further, the bill proposes to relax content restrictions for commercial radio stations which’ll allow them greater freedom to decide what they broadcast and how they broadcast it.

7. Miscellaneous and general

Part seven of the bill repeals section 40 of the Crime and Courts Act 2013 which would require news publishers to pay the costs of court proceedings if they themselves weren’t a member of the approved press regulator, regardless of the outcome. Following a consultation, the government concluded in March 2018 that section 40 wasn’t necessary and should be repealed. Part seven also introduces schedule 14 which would address legislative issues arising from the UK's withdrawal from the EU.

Conclusion

It’s undoubtable that the Draft Media Bill will have a significant impact on the shape of our media and broadcasting landscape. As the last significant reform to broadcasting legislation occurred in 2003, many will think this bill is long overdue and essential to protect the unique role fulfilled by PSBs, while ensuring healthy competition in the UK.  

Developments will be monitored closely by PSBs, television and audio platform providers, streaming services and radio stations alike.

Nicci da Costa is a trainee solicitor in the Media team at RPC.