In this article we discuss Part 4 of the Media Bill, “On-Demand Programme Services”, and how it compares to Part 4 of the draft Media Bill published earlier this year.
Background
When the draft Media Bill was first published, we summarised the changes that were proposed in respect of the regulation of on-demand programme services (ODPS) and the impact such changes might have on, for example, ODPS providers, audiences and Ofcom as the regulator. We also discussed the recommendations made by the DCMS Select Committee in their final report on the draft Bill.
Now the Media Bill has been updated and published, we discuss below what has changed from the first draft Bill, whether the Select Committee’s recommendations were accepted by the Government and how this might impact stakeholders.
Select Committee recommendations
Part 4 of the Media Bill remains largely unchanged. In particular, although the Government states it accepted the “majority” of the Select Committee’s recommendations, it was “unable to accept” others.
Significantly, the Government appears to have rejected the Select Committee’s call to require all Ofcom-regulated ODPS to comply with an enhanced regulatory code, rather than just the largest services. This recommendation was based on the Government’s own stated aim of ensuring that audiences will be able to feel confident that all content, however it is consumed, is subject to the same regulation. Presumably, this is in part due to the material costs associated with enhanced compliance and the impact that this may have on competition. We wait to see whether Government will explain its reasoning for not implementing this proposal in its response to the Select Committee’s final report.
Nevertheless, the Government did take on board the Select Committee’s concerns about lack of time for adequate Parliamentary scrutiny when designating ‘Tier 1’ services (i.e. compiling the list of the largest ODPS that will be subject to enhanced regulation, should the Government continue with its tiered approach to ODPS regulation).
In particular, the Select Committee report urged the Government to agree to present Parliament with a list of proposed Tier 1 services no fewer than five sitting days before the statutory designation is made. Under the draft Bill, there was no requirement specifying how long after the list was published the new regulations could be issued, which could have led to a situation where Parliament had no time to consider the list. The Bill accepts this recommendation, and includes the five day buffer.
Other changes
The Bill also includes some additional changes that were not suggested by the Select Committee.
The Media Bill reflects the draft Bill by ensuring that large ODPS that are not based in the UK (and are therefore not currently regulated in the UK) will be regulated in the same way as large UK-based ODPS. This means that, as per the draft Bill, Tier 1 non-UK ODPS will also need to comply with existing regulations around sponsorship, advertising and product placement etc. The Media Bill now provides such non-UK providers a grace period for compliance of 12 months, and allows for further flexibility around this requirement in the relevant Regulations to be issued.
Similarly, the grace period for all Tier 1 ODPS (UK and non-UK) to comply with the enhanced code has been extended from six months to 12 months.
In addition, when preparing the enhanced code, the Media Bill now requires Ofcom to take into account “the age of the content of particular programmes or particular kinds of programmes” and “the likely effect of consideration being required in order to view a particular Tier 1 service or particular programmes included in a Tier 1 service”.
Finally, although only the large ODPS will be required to comply with a new accessibility code, the Media Bill now requires Ofcom to consult all ODPS (as it sees fit), rather than limiting this consultation to Tier 1 providers only.
The CMS view
Although the updated Media Bill includes a few changes to ODPS regulation compared to the draft Bill, these are largely procedural and don’t change the overall substance of Part 4.
In particular, the Government has taken a decision to reject the Select Committee’s main recommendation of extending the enhanced regulation of Tier 1 services to all Ofcom-regulated services.
This will no doubt be good news for smaller ODPS, who were concerned that such additional regulation could be potentially burdensome and disproportionate. Indeed, it will also allay fears that tighter regulation for all platforms could hinder new players entering the market. Similarly, the Select Committee’s report stated that Ofcom considered the Government’s proposed ‘tiered’ approach would enable Ofcom to “take a practical approach” to regulation.
We will be watching this Media Bill closely as it passes through Parliament, so keep an eye out for our updates on our dedicated CMS Media Bill webpage. If you would like to discuss any aspect of the draft Media Bill or how it may affect you, please get in touch.
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