Part 7 of our 7-part series on the draft Media Bill – listed events regime revisions and a blow for Leveson

United Kingdom

In this article, as part seven of our seven-part series, we will cover:

  1. changes to the listed events regime, which are set out in Part 1 of the draft Media Bill; and
  2. Part 7 of the draft Media Bill, which: (i) repeals section 40 of the Crime and Courts Act 2013 (“Section 40”); (ii) makes several amendments related to the UK’s withdrawal from the EU; and (iii) sets out the general provisions of the draft Media Bill. 

Listed events regime revisions

The current regulatory framework (as set out in the Broadcasting Act 1996) gives the Secretary of State the power to draw up a list of sporting events of “national interest” (e.g., the FA Cup Final). The broadcast rights to these events must be offered to “qualifying” services in the first instance.  To be a qualifying service, the service must be provided to end-users without any fee or other consideration for reception of the service and it must be received by at least 95 per cent of the population of the United Kingdom, the aim being that certain events are accessible and made available to the British public for free.

Although the current listed events regime in reality applies only to public service broadcasters (“PSBs”), given that only PSBs currently satisfy the thresholds required to make content available to a large enough audience (a list of qualifying services can be found here), with the increased availability of broadband and connected devices, it was foreseeable that in the not-too-distant future a non-PSB service could achieve the required thresholds to compete for listed events.

The draft Media Bill amends the “qualifying conditions” for the listed events regime set out in

the Broadcasting Act 1996, so that a qualifying service must be provided by a PSB. In short, this means that the listed events regime applying to qualifying services will now be a benefit available exclusively to PSBs.

In line with other measures in the draft Media Bill, the range of services that fall within the scope of the listed events regime has been updated to capture a “designated internet programme service”.  The draft Media Bill defines:

  • an “internet programme service” as a service with the principal purpose of providing programmes delivered by the internet. This includes services which are entirely on-demand or only partially on-demand and contain other services (for example, live-streamed television programme services); and
  • a “designated internet programme service” as any internet programme service provided by the BBC or any other PSB (or person associated with a PSB) that Ofcom designates. This would, therefore, capture BBC iPlayer for instance and, subject to Ofcom designation, other PSB on-demand services such as All4, My5 and ITVX. Ofcom can only designate an internet programme service where it meets certain criteria; essentially that the service makes or would, if designated, be capable of making a significant contribution to the fulfilment of the PSB’s public service remit (as defined by the Communications Act 2003). 

The draft Media Bill does not yet address the issue of whether digital rights should be included in the listed events regime, which was the subject of a Government review in November last year (which we highlighted in our previous Law-Now available here).

Part 7 of the draft Media Bill  “Miscellaneous and general”

A repeal of Section 40 

The draft Media Bill repeals the hugely controversial Section 40.  Section 40 (which is not currently in force) was introduced to incentivise news publishers to sign up to an approved regulator (i.e., one which complies with the recommendations of the Leveson Inquiry) and enable access to individuals against the press. If brought into force, Section 40 would make any publisher which has not signed up to an approved regulator liable to pay both sides’ legal costs if they are sued, even if the publisher wins the case. Many national newspaper groups objected to Section 40, arguing it was not fit for purpose and would hurt investigative journalism. Should the draft Media Bill come into force in its current form then the likely consequence is an end to the Government-backed press regulatory system.

Amendments related to the UK’s withdrawal from the EU and general provisions

The draft Media Bill makes several other amendments, including:

  • to existing legislation to address deficiencies with retained EU law.  These amendments are, in effect, housekeeping, as opposed to notable amendments: for example, removing references to the European Commission, the Audiovisual Media Services Directive, and other EU legislation;
  • permitting Ofcom to cooperate with EEA states that are subject to the Audiovisual Media Services Directive, and with the national regulatory authorities of such states, in certain circumstances; and
  • giving the Secretary of State a regulation-making power to make amendments to other legislation which are consequential to the provisions in the draft Media Bill.

The CMS view – surprise score 2/10

The changes to the listed events regime are unsurprising, given the acknowledgment to such changes in the White Paper. This will come as a disappointment to sports rights holders, some of whom would have hoped that, in the future, the emergence of new services being deemed “qualifying” (e.g., super-platforms) would drive up value in their rights. There may be further changes following the conclusion of the Government’s review on whether digital rights should be included in the listed events regime. However, as we mentioned in our Law-Now, in practice, PSBs already commonly acquire digital rights when they acquire rights to listed events, so whether intervention on the point is really needed is questionable.

The extension of qualifying services to pure internet-delivered content is more surprising.  In future, it might mean that a linear channel only available through a PSB digital service (for example, the BBC iPlayer) might be the only place for live coverage of a listed event (though that would be a brave step for the PSB concerned).

Whilst the repeal of Section 40 was not in the White Paper, the Government has long said it would do so (for example, back in March 2018, in response to a consultation). Nonetheless, the actual repeal of Section 40 will be welcome news (no pun intended) for several publishers, one of whom described leaving it on the statute books as a legislative sword hanging over the newspaper industry. This could be the final nail in the coffin for a state-backed regulation system in the UK. It is also indicative of a broader swing in political and public opinion in favour of the media in the decade since the low point for the media of the Leveson Inquiry.

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 Media Bill or how it may affect you, please get in touch.