First Impressions of the New Media Bill

The Department for Culture, Media and Sport published a Press Release regarding the imminent publication of the draft Media Bill. Although the draft Media Bill is not yet available, the Press Release provides us with an insight into some of the key provisions to expect. Many of these key provisions reflect the broad statements that were contained within the Government’s Media White Paper, however, there are also one or two surprises:

• additional regulation, in the form of Ofcom rules, to narrow the gap between the regulation of traditional broadcasters and VOD service providers. It would appear that the draft Media Bill will provide Ofcom with the power to update or replace The Ofcom Broadcasting Code to ensure the rules for regulated linear services and regulated on demand programme services are more closely aligned. The Press Release also provides that the rules will apply to those on demand programme services that “target and profit from UK audiences but currently operate outside UK regulation”, so we would expect to see a broadening of the current jurisdiction test that applies to on demand programme services. CMS surprise score: 2/10. The closing of the regulatory gap between linear and VOD has been a hot topic for some time, as has the Government’s intent to ensure VOD services that target UK audiences fall within the scope of regulation. 
• smart speaker platforms to be required to ensure access to all UK licensed radio stations. In line with the White Paper’s statement that changes may be necessary to “ensure audiences are able to access radio services on new devices without undue interference to those services or access charges” smart speaker platforms will be required to make available all UK licensed radio stations. Further, smart speaker platforms will be banned from charging UK licensed radio stations from being hosted on their services and smart speaker platforms will be banned from overlaying their own adverts over the top of those stations’ programmes. CMS surprise score: 8/10. Although access to radio has been on the Government’s agenda, the only previously published commitment was about radio listings on TV EPGs, so it is somewhat surprising that the Government appears to have taken such a broad approach. Of particular interest will be whether all, or just major, smart speaker platforms will need to comply with such requirements and also on how the Government defines smart speakers in light of rapid technological advancements (for example, will the definition include any device with an audio UI or car audio systems).  
• Relaxation of commercial radio content and format requirements: the draft Media Bill will relax content and format requirements on commercial radio, allowing stations more flexibility to adapt their services without requiring Ofcom consent. The draft Media Bill will replace the requirements based on commitments given in licence applications with new 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. CMS surprise score: 3/10. Although reference to updating certain parts of the content and format requirements was included in the White Paper, the Press Release suggests a more radical change and a replacement of the entire existing regime. 
• PSB VOD prominence. the Government notes that “major online TV platforms” will be required to carry and prominently feature “designated” PSB services. It would therefore appear that a “must offer and must carry” regime and a prominence regime will, as a minimum, apply to PSBs’ on demand services.  CMS surprise score: 0/10. Although no real surprise here, we still eagerly wait to see how the Government defines both “designated PSB services” and “major online TV platforms”. It would also appear that the prominence regime will apply to “services” rather than “content”, however, there is some scope in the wording of the Press Release to suggest the regime could have an even broader application.  
• Access services on VOD: It would appear that the draft Media Bill will mandate that VOD services will have to provide subtitles on 80 per cent of their programmes, while 10 per cent must have audio description and 5 per cent signed interpretation. CMS surprise score: 5/10. The fact VOD services will have to provide access services comes as no surprise, however, the apparent mandated targets are somewhat surprising when considered alongside the current regime that applies to linear services. The detail here will be of particular interest to see whether (as the Press Release suggests) the targets are static and apply to all VOD services, or whether there is flexibility, exclusions and different targets to, in particular, encourage new intrants to the market. 
• Listed events to become a PSB benefit. Although the current listed events regime in reality applies to PSBs (given only PSBs satisfy the thresholds required to make content available to a large enough audience) with the increased availability of broadband and connected devices it was possible that in the not too distant future a non-PSB service could achieve the required thresholds to make available listed events. CMS surprise score: 0/10. The Media White Paper noted that this would be included within the draft Media Bill. We still await to see how the Government will legislate for Digital Rights in the context of listed events, with the Press Release noting that this is still subject to ongoing review.
• Channel 4 will not be privatised. Channel 4 will no longer be barred from producing its own content and will get a new legal duty to consider its future sustainability alongside the delivery of its public service remit. In addition, the Government will raise the level of Channel 4’s independent production quota, which will be done via secondary legislation. CMS surprise score: 0/10. 11 months ago this would have been a surprise, however, the Press Release reflects the position adopted in the Government’s Channel 4 Press Release in January this year. It also, unsurprisingly, appears that the conversations between the production sector and the Government concerning production quotas are ongoing and no immediate consensus appears to have been reached.
• New PSB remit. The Press Release notes that the draft Media Bill will replace the “outdated purposes and objectives for UK PSBs” to better equip PSBs for the digital age.  CMS surprise score: unknown. Although the statement in the Press Release comes as no surprise we expect a lot more detail to be set out in the Media Bill. Currently, what we know from the Press Release is that online programming will count towards meeting PSB’s public service remit and that Ofcom will get new powers to require PSBs to provide more of a particular type of programming if audiences are deemed to have been underserved.

Our Media Bill Tracker is currently being updated, so do refresh the page over the next few days.