On 27 January 2025, Ofcom launched a consultation on proposed revisions to its guidance (“Guidance”) for public service broadcasters (the “PSB(s)”) concerning the PSBs’ Commissioning Codes of Practice (collectively, the “Codes” and each a “Code”). This move comes in response to the changes introduced by the Media Act 2024 (the “Act”) to update the regulatory framework affecting the PSBs.
In response to the Act’s new transparency requirement obliging the PSBs to provide information to producers on the application of their Code, Ofcom proposes to include provisions in its Guidance to aid producers when negotiating commissioning contracts with the PSBs.
Given that Ofcom’s Guidance has not been revised since 2007, Ofcom is also proposing some additional changes to reflect market developments and current commissioning practices.
Proposed revisions to Ofcom’s Guidance for the PSBs
Ofcom is proposing several updates to the Guidance in light of the Act and to ensure it aligns with current industry standards and practices. The key changes include:
- Revised objectives and application to independent productions: Updating the objectives of the Guidance to reflect the PSBs’ revised remits, focusing on meeting the needs and interests of different audiences across the UK and the PSBs’ meeting their quota obligations. The Guidance (and the Codes) will, going forward, apply to independent productions intended for both: (i) the main PSB channels (as has always been the case); and (ii) the PSBs’ designated on-demand players (where the content is intended to count towards meeting the PSB’s programming quotas for independent productions). The PSBs’ will only be entitled to use programming commissioned in accordance with the revised Codes to count towards their quotas for independent production.
- Transparency for independent producers: The PSBs will be required to make their Code and all other relevant documentation available to producers before commissioning negotiations commence. The Code and all other relevant documentation should be easily accessible on the PSB’s website. This will improve transparency for independent producers and is expected to have a minimal administrative burden.
- Rights negotiation: Allowing the absolute prohibition on linking the acquisition of primary rights to the negotiation of secondary rights to be waived, but only with the express consent of the independent producer. In proposing this amendment, Ofcom considered the change in viewing habits of audiences today and the consequential reduction in the share of independent productions typically commissioned by the PSBs, compared to the increase in those acquired by the global streaming platforms. The Ofcom proposal aims to provide greater flexibility in negotiations, enabling the PSBs to commission programming across a wider range of services and better compete with the streaming platforms, whilst balancing the right of a producer to reject an offer which includes the acquisition of the secondary rights.
- Removal of the ‘matching rights’ prohibition: Removing the prohibition on the inclusion of matching rights provisions in the PSB’s commissioning contracts. This change aims to reflect the evolved media landscape, where global players currently spend significantly more on UK-originated drama and are able to fund much larger budgets than the PSBs. Back in 2007, when Ofcom created the current Guidance, it was felt such matching rights provisions would negatively impact competition (hence the prohibition). However, due to the transformed media landscape, it is now hoped that by allowing matching rights to be included, the PSBs may find it easier to secure more independently produced content, better serving viewer interests without materially impacting competition.
- Compliance information: Requiring the PSBs to retain sufficient information about their commissions for a minimum of 3 years to demonstrate compliance with their own Code (which should include information, such as, the prices paid for commissions, tariff ranges and the duration of the rights granted). This means that instead of submitting annual reports to Ofcom, the PSBs must keep detailed records which can be reviewed, if necessary. This change aims to reduce the administrative burden on the PSBs (and Ofcom), while preserving adherence to standards and practices.
- Arrangements for dispute resolution: The proposed change involves making only minor drafting adjustments, rather than substantive changes, to the section of the Guidance that requires a PSB’s Code to include provisions for resolving disputes related to the application of the Code. However, one PSB has questioned the practicality of the suggestion that a non-executive director of a PSB could serve as the final arbiter in a dispute. Ofcom is seeking feedback on this point.
Next steps and implementation timeline
Ofcom invited stakeholders to provide their views on the proposed revisions to the Guidance. The consultation period closed on 10 March 2025.
Proposed implementation timeline:
- 10 March 2025: Deadline for responses to the consultation.
- Summer 2025: Ofcom intends to publish a statement and the final Guidance.
- Autumn 2025: The PSBs to prepare their own updated Codes in line with the final Guidance and seek Ofcom approval. Ofcom may then issue any necessary variations to the PSB’s licence conditions to reflect the final Guidance.
- By 1 January 2026: The final Guidance takes effect and the PSBs updated Codes must be in place.
We are watching the Media Act’s progress along the roadmap for implementation, so keep an eye out for our updates on our dedicated CMS Media Act Tracker. If you would like to discuss any aspect of the Media Act or how it may affect you, please get in touch.
Co-authored by Florentina Terholli, Associate at CMS.
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