On 22 September 2023, the DCMS Select Committee (the “Committee”) published its final report on the draft Media Bill (the “draft Bill”), having published its interim report on the draft Bill’s radio measures in July.
In our previous articles, we looked at the proposed changes to the regulation of public service broadcasters (which we will refer to as public service media owners or “PSMOs”) set out in Part 1 of the draft Bill (see here) and the impact assessment in relation to those proposed changes (see here).
In this article, we explore the Committee’s findings in respect of the proposed changes to the regulation of PSMOs.
In the report, the Committee makes five recommendations:
- The draft Bill should be revised so that PSMOs are still required to provide specific genres of content.
The draft Bill is intended to simplify the public service remit. This includes removing the requirement for PSMOs to provide content in specific genres such as entertainment, drama, comedy, music, science, religion and other beliefs. In its place, the draft Bill introduces a requirement that PSMOs provide content that “meets the needs and satisfies the interests of as many different available audiences as practicable as regards … the subject-matters covered by it" and “reflects the lives and concerns of different communities and cultural interests and traditions within the United Kingdom, and locally in different parts of the United Kingdom”.
Concerns were raised (in response to the Committee’s call for evidence) about the removal of genres, with one of the respondents arguing that this would lead to “a steep decline–if not the overall extinction–of socially valuable and valued but already endangered PSB genres”.
In turn, the Committee noted that removing origination quotas for UK children’s content for PSMOs had previously contributed to a decline in the production of original children’s TV, and expressed concerns that the proposed removal of the requirement to provide content in specific genres would lead to “similar reductions in content, particularly in the less commercially successful areas”.
2. The draft Bill should be revised so that the Secretary of State can exercise the “backstop” power only following a recommendation from Ofcom.
The draft Bill introduces a “backstop” power, entitling the Secretary of State to create additional quotas for particular types of content where the Secretary of State considers that such content is not being provided “to the extent that is appropriate”. This “backstop” power can be exercised only if: (a) Ofcom has recommended the creation of an additional quota in its latest report on the fulfilment of the public service remit by the PSMOs; or (b) having considered Ofcom’s latest report, the Secretary of State considers it appropriate to create an additional quota.
The Committee noted that it was unclear as to the circumstances in which it might be necessary for the Secretary of State to exercise the “backstop” power under this second limb, whether without or contrary to a recommendation by Ofcom. The Committee also referred to the impact assessment for the draft Bill, according to which one PSMO warned that giving this “backstop” power to the Secretary of State would risk removing “checks and balances to ensure that media regulation is independent of government” while another PSMO highlighted the risk of “undermining the independence of Ofcom as regulator”. Having expressed its concern that the “backstop” power created the perception that media regulation has ceased to be independent of government, the Committee recommended removal of the second limb of the power.
3. Ofcom should use its monitoring of home internet access to inform assessments of the accessibility of public service content on PSMOs’ linear channels.
The draft Bill allows PSMOs to use on-demand content to fulfil their public service remit. It also requires Ofcom to review whether PSMOs have taken steps to ensure that their content can be received or accessed “by so much of the broadcaster’s intended audience as is reasonably practicable”.
However, concerns have been raised that the increased flexibility of the proposed new remit could lead to reduced public service content on linear channels. One respondent argued that this would result in an “inferior experience of public service broadcasting” for audiences who rely on broadcast services and “could be damaging and undermine the importance of universality” (i.e. the principle that public service content is made widely available to those in the UK and free at the point of access).
The Committee concluded that the increased flexibility for PSMOs should not be at the expense of linear broadcast audiences and that it was “imperative” that PSMOs make their content “as accessible as possible” to all audiences, urging Ofcom to hold PSMOs “to the highest standards”.
4. The draft Bill should be revised to allow the Secretary of State (following consultation with Ofcom and other appropriate stakeholders) to vary the requirement to keep on-demand content available for at least 30 days, where a shorter time period is appropriate for particular types of content.
The current wording of the draft Bill means that, where content is provided by an on-demand service, PSMOs cannot use that content to fulfil their public service remit unless it is available for viewing for at least 30 days.
Various PSMOs raised issues with this requirement, pointing out that they did not have the right to keep certain content, such as news, sports and music, available on-demand for as long as 30 days.
The Committee recognised that, while there should be a minimum length of time for which material is available on-demand (so that people are able to watch it at a convenient time), 30 days might not be appropriate for all types of content.
5. The draft Bill should lower the threshold at which Ofcom’s enforcement powers apply, so that Ofcom can intervene at an earlier stage (rather than waiting until it considers there has been a serious failure by a PSMO to meet its remit).
The Communications Act 2003 gives Ofcom enforcement powers where Ofcom considers that a PSMO has failed to fulfil the public service remit, but only if Ofcom also considers that the failure of the PSMO is “serious and is not excused by economic or market conditions”.
This threshold of “serious” failure has not been altered by the draft Bill. However, in the light of the increased flexibility of the proposed new public service remit, Ofcom has questioned whether the threshold is set at the right level.
The Committee concluded that there should be a lower threshold to allow Ofcom to intervene if it considers that a PSMO is failing to fulfil its remit. By enabling Ofcom to step in earlier, the Committee’s view is that this would protect the public service television regime and would increase public confidence that the increased flexibility of the new remit would not result in standards declining.
The CMS view – surprise score 5 / 10
If adopted, the Committee’s recommendations will go some way to addressing concerns that, although the draft Bill makes it easier for PSMOs to fulfil their public service remit, this may end up being at the expense of linear broadcast audiences. The recommendation of the Committee that PSMOs should still be required to provide specific genres of content removes some of the flexibility of the proposed remit. In addition, a recommendation that Ofcom should be able to intervene at an earlier stage if a PSMO is failing to meet its remit is unlikely to be welcomed by PSMOs. However, while the Committee has urged Ofcom to hold PSMOs to the highest standards in terms of the accessibility of content, the Committee stopped short of recommending additional requirements for the PSMOs.
While the recommendation of the Committee that it should be possible to vary the 30-day on-demand requirement for certain types of content may result in a less favourable position for audiences, this simply reflects the nature of the relevant broadcast and on-demand rights.
Finally, and similar to other Committee recommendations to curtail some of the powers of the Secretary of State in other parts of the draft Bill, the Committee has recommended that the Secretary of State’s “backstop” power (to introduce additional quotas for underserved content) should only be exercisable following a recommendation from Ofcom.
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.