In this article, we explore Part 1 of the Media Bill, “Public Service Television”, and how this compares with Part 1 of the draft Media Bill published earlier this year.
Background
In our previous articles, we summarised 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 Media Bill and the impact assessment in relation to those proposed changes. We also discussed the recommendations made by the DCMS Select Committee (the “Committee”) in its final report on the draft Media Bill in respect of the proposed changes to the regulation of PSMOs.
Following the publication of an updated version of the Media Bill, in this article we explore any changes from the draft Media Bill and discuss the extent to which the Committee’s recommendations have been reflected in the updated Media Bill.
DCMS Select Committee recommendations
There have been relatively few changes between the draft Media Bill and the November version of the published Media Bill. While the Government stated that it accepted the majority of the Committee’s recommendations in relation to the draft Media Bill, in some cases, the Government either did not accept the recommendation at all or decided to address the relevant concern in a different way. We’ll have to wait to see the justifications for the Government’s approach in its response to the Committee’s final report.
The Committee recommended that the draft Media Bill should be revised so that PSMOs are still required to provide specific genres of content. The Government has taken the Committee’s concerns on board but has not adopted this recommendation. Instead, the Government has added a requirement that the range of genres of content made available by the PSMOs (taken together) constitutes “an appropriate range of genres”.
Where content is provided by an on-demand service, the draft Media Bill said that PSMOs would not be able to use that content to fulfil their public service remit unless it was available for viewing for at least 30 days. The Committee recommended that the Secretary of State (following consultation with Ofcom and other appropriate stakeholders) be allowed 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 Government has taken the Committee’s concerns on board but has not adopted this recommendation. Instead, the Government has maintained its position that, in general, all content should be retained on an on-demand service for at least 30 days but has added an exception so that news programmes or programmes containing coverage of sporting events can be retained for a shorter period of time on an on-demand service (without specifying a different minimum time period for this content). This meets the PSMOs’ concerns that sports rights holder restrictions and (in the case of news) the constraints of fair dealing law will often preclude content being available for as long as 30 days. It also releases the PSMOs from having to make available “yesterday’s news” for an excessive period of time.
The Committee had recommended that the Secretary of State should only be able to exercise the “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”) following a recommendation from Ofcom. The Government has accepted this recommendation, removing the ability for the Secretary of State to exercise this power without, or contrary to, a recommendation from Ofcom.
However, the Government has not introduced any changes to the threshold at which Ofcom’s enforcement powers apply, despite the Committee recommending that this be lowered. This means that Ofcom’s enforcement powers are not triggered where it considers that a PSMO has failed to fulfil the public service remit unless Ofcom considers that the PSMO’s failure is “serious and is not excused by economic or market conditions”.
Other changes
In terms of additional changes to the Media Bill that do not relate to recommendations by the Committee, the most substantive change is to the list of services that count towards fulfilling the public service remit. According to the draft Media Bill, the types of services that would count towards fulfilling the public service remit were television broadcasting services, television licensable content services, digital television programme services, internet programme services, and services provided via the internet where there is a person exercising editorial control in respect of the service. The Government has updated this list to replace those last two types of services with on-demand programme services, non-UK on-demand programme services, and any service which is principally for the provision of programmes, where: (a) those programmes are accessed via the internet, (b) the service is available for use by members of the public in all or part of the UK, and (c) there is a person with general control over which programmes are comprised in the service.
The CMS view
Rather than reinstating the requirement for PSMOs to provide content in specific genres such as entertainment, drama, comedy, music, science, religion and other beliefs, the Government has opted to introduce the requirement for “an appropriate range of genres”. It’s not clear what will constitute an “appropriate range” and, as such, may provide PSMOs with greater flexibility on how they fulfil their public service remit. It remains to be seen how this wording is interpreted by Ofcom but, for now, this is unlikely to allay concerns raised (in response to the Committee’s call for evidence) about the removal of genres.
Following concerns about the application of the 30-day requirement to sports, news and music content, PSMOs are likely to welcome the Government introducing an exemption for news programmes and programmes containing coverage of sporting events but may query why this does not cover music content as well.
One more surprising change is the freedom for PSMOs to use non-UK on demand programme services to deliver their public service remit; does the Government wish to incentivise PSMOs to license content to overseas services, or even to move the PSMOs’ own digital service jobs offshore?
Finally, the Government’s decision not to lower the threshold at which Ofcom’s enforcement powers apply is likely to be welcomed by PSMOs, although it will be interesting to see if the Government’s response to the Committee’s final report indicates whether this is a potential change in the future.
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.
Social Media cookies collect information about you sharing information from our website via social media tools, or analytics to understand your browsing between social media tools or our Social Media campaigns and our own websites. We do this to optimise the mix of channels to provide you with our content. Details concerning the tools in use are in our Privacy Notice.