Following the long-anticipated publication of the draft Media Bill on 29 March 2023, CMS published a seven-part series summarising “what’s in” the draft Media Bill and provided our analysis. Now, in this new two-part series, CMS will be looking at “what’s not in” the draft Media Bill, starting with the omission of (i) certain digital rights from within the listed events regime, and (ii) reforms to the rules on impartiality.
(i) Digital rights for listed events
The current listed events regime seeks to ensure that the British public can watch certain events of national importance at no additional cost to the widest possible audience. Currently, to be regarded as a “qualifying service”, and therefore receive the benefit of the listed events regime, services must be free-to-view and received by 95% of the UK population. As explained in Part 7 of our Law-Now series (available here), the draft Media Bill seeks to amend the “qualifying conditions” so that, going forward, only PSBs will be able to benefit from the listed events regime to the exclusion of non-PSB broadcasters (i.e., the 95% reception criterion has been removed and replaced with a qualifying condition that services must be “PSBs”).
Further, the draft Media Bill also seeks to update the range of PSB services that fall within the scope of the regime to capture “designated internet programme services”, which are internet programme services provided by the BBC, such as iPlayer, or by another designated PSB. This means that a PSB will, without requiring additional Ofcom consent, be able to acquire “listed events” and place the rights to such events on its traditional linear television service and/or (emphasis on the word “or”) on its internet programme service - bringing digital transmission within the scope of the regime.
Beyond this update, the draft Media Bill does not yet go further to expand the scope of the listed events regime regarding other rights, for example catch-up rights and clip rights that have been the subject of the “Listed Events: Digital Rights Review” consultation (for more information on this consultation, please see CMS’s Law-Now available here). However, whilst we have yet to see the results of the consultation, we understand that the final version of the draft Media Bill will include the results of the consultation.
(ii) Impartiality requirements reform
The Communications Act 2003 (the “Act”) provides for “special impartiality requirements” relating to matters of political or industrial controversy and current public policy; in particular, the Act recognises the importance of preserving “due impartiality” and excluding the views or opinions of the persons providing the relevant television or radio service in relation to such matters. Ofcom is empowered under the Act to decide what impartiality means in practice and how it should be enforced – these standards are set out in the Broadcasting Code and accompanying guidance.
With the recent proliferation of alternative news services in the UK, and the increasing frequency with which on-air talent (not to mention enhanced platforms available to such talent) have been airing their socio-political views on social media, some are of the view that a refresh of the impartiality rules is required. Even those in favour of a strong impartiality regime are of the view that the rules go “too far” and encourage (at times) those with “baseless” (or even “dangerous”) arguments disproportionate coverage on mainstream services.
Whilst it doesn’t necessarily surprise us that the draft Media Bill does not seek to update the impartiality requirements of the Act, we might have expected the UK Government to have opened the door for reform in this area. In fact, the UK Government appears to have doubled down on the current special impartiality rules in that they will to a large extent, for the first time, also apply to (Tier 1) on-demand services - with the exception of the requirement for due impartiality in relation to matters of “major political or industrial controversy and major matters relating to current public policy”. The Government explained that this omission reflects the fact that VOD services are less likely to include programmes that are reactive to live and rapidly-developing events. Nevertheless, somewhat controversially, Tier 1 services will not be able to reflect in their programmes the service providers’ views or opinions on any matters of political or industrial controversy, or current public policy. The UK Government’s plans in this regard appear to have struck a nerve with on-demand services – Netflix in particular has been quite vocal about its opposition to the planned reforms to this regime.
For now, absent of more prescriptive language from the UK Government on impartiality, it remains to be seen whether Ofcom will choose to update its impartiality standards to address the evolving (and increasingly polarised) news media landscape.
In conclusion…
What’s not in the draft Media Bill can provide (almost) as much food for thought as what’s in the draft Media Bill. Whilst it doesn’t necessarily surprise us that the inclusion of extensive digital rights in the new listed events regime and reforms to the impartiality requirements did not (or don’t yet…) feature in the draft legislation, addressing these issues might have helped future-proof the legislation for the decades to come.
In part 2 of this series to follow, CMS will examine further gaps in the new draft Media Bill, so stay tuned! For more information on all things draft Media Bill (including access to our seven-part series), please visit our Media Bill Tracker webpage, available here.
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