On 22 September 2023, the DCMS Select Committee (the “Committee”) published its final report on the draft Media Bill (the “draft Bill”). The report follows on from the Committee’s interim report on the draft Bill’s radio measures (which was back in July), focusing on the remainder of its provisions. In this article, we explore the Committee’s findings regarding the changes to the listed events regime (which we covered in our previous Law-Now here).
As a brief reminder, the draft Bill changes the listed events regime to make it a benefit specifically for public service broadcasters (“PSBs”). Despite the arguments raised by commercial operators (such as that the changes could restrict user choice and experience, and reduce competition for rights), the Committee supports the Government’s decision.
However, the Committee does not believe the draft Bill goes far enough, and makes two recommendations:
1. The draft Bill should be amended to close the ‘loophole’ allowing an unregulated streaming service to buy the rights for a listed event and put the listed event behind a paywall.
The Committee mirrors the concerns raised by some of the PSBs that the draft Bill does not address an existing loophole that allows an unregulated TV streaming service to buy the rights for a listed event and put them behind a paywall.
This is because the draft Bill does not capture “pure” streaming services and these services will still not be captured by an expansion of the rules on electronic programme guides (“EPGs”) as many of these “pure” streaming services do not appear on EPGs.
The Committee therefore recommends that the Government amend the draft Bill to close this loophole.
It should be noted that, on 20 September 2023, the Government opened a consultation in relation to its proposal to expand the list of regulated EPGs (see more here).
2. The draft Bill should include provisions to enable digital rights to be included in the listed events regime without the need for further primary legislation.
As we mentioned in our previous Law-Now, in November 2022, the Government launched a consultation on whether digital rights should be included in the listed events regime, which was in response to the Committee’s 2022 Major Sporting and Cultural Events report. In June 2023, the Government said it would announce the conclusions of the digital rights review “in due course”. However, to date, we still have no visibility as to when the digital rights review will present itself.
The BBC argued that, if the Government does not conclude its review in time for the legislation to be passed, the draft Bill should be amended to include an enabling provision to allow digital rights to be added later – an argument which the Committee adopts.
The CMS view – surprise score 3 / 10
The recommendation in relation to the streaming loophole provides some much-needed clarification. To date, the streaming loophole has not achieved much attention in the UK (presumably due to lack of exploitation); however, streaming loopholes have received attention elsewhere, such as in Australia and therefore, it was arguably just a matter of time until these arguments gained more attention in the UK.
The recommendation in relation to digital rights is unsurprising and consistent with the Government’s approach to date.
We are watching the 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.