As part seven of our seven-part series on the draft Media Bill (which can be found here), we covered changes to the listed events regime and the repeal of section 40 of the Crime and Courts Act 2013 (“Section 40”). In this article, we will cover the Government’s impact assessments in relation to the above (click here for the overarching impact assessment and here for the impact assessment on modernising public service broadcasting).
Listed events regime revisions
As a brief refresher, the listed events regime is a benefit which applies to services which meet the “qualifying conditions” (i.e., broadcast services received by 95% of the UK population and which are free-to-air). In practice, as of today, only services by public service broadcasters (“PSBs”) are designated by Ofcom as currently meeting these conditions. The draft Media Bill essentially amends the “qualifying conditions” to a service provided by a PSB, making the listed events regime a PSB-specific benefit.
According to the impact assessments, the Government’s rationale for making this intervention is that, in the context of changing consumption habits and more fragmented viewing, it is possible that PSBs could fail to meet the current qualifying conditions.
In relation to the cost/benefit analysis, the impact assessments state there will be zero cost associated with this intervention, given it is maintaining the status quo; it will, however, have the benefit of providing more clarity and certainty for PSBs over the long term. However, this fails to assess: (i) the impact on rights holders (looking into the future) where non-PSBs may have met the qualifying conditions (therefore potentially opening up a larger marketplace); and (ii) the impact of including designated internet programme services within the scope of the listed events regime (which could be seen as a back door introduction of digital rights into the listed events regime).
Repeal of Section 40
As another brief refresher, if brought into force, Section 40 would make any publisher which has not signed up to an approved regulator liable to pay both sides’ legal costs if they are sued, even if the publisher wins the case.
The overarching impact assessment states the Government no longer considers Section 40 necessary nor proportionate. This is because, amongst other things, there has been (according to the Government) a raising of standards across the industry and the commencement of Section 40 is no longer required to improve the regulation of publishers.
In relation to the cost/benefit analysis, the overarching impact assessment states there are no direct costs or benefits associated with this intervention, given Section 40 is not currently in force. There is, of course, some benefit in removing this from the statute books: to remove the potential of this being enacted in the future. However, the overarching impact assessment goes as far as to state: “it is expected that even in a do nothing scenario, [Section 40] will never be commenced.”
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