As part two of our seven-part series on the draft Media Bill (which can be found here), we covered the revised prominence framework for public service broadcasters (“PSBs”). In this article, we will cover the Government’s impact assessments in relation to the above (please click here for the overarching impact assessment and here for the impact assessment on the new prominence regime for PSB online services).
A new prominence framework for PSBs
By way of brief refresher, the current prominence framework for PSBs guarantees specified PSB linear channels prime positioning in EPGs, but does not extend beyond linear to PSBs’ other services, such as on-demand services, or beyond their EPGs to their user interfaces (“UIs”). The draft Media Bill seeks to bridge this gap by introducing a new, principles-based prominence regime that affords an “appropriate” degree of prominence to “designated internet programme services” (e.g., BBC iPlayer) being made available on “regulated television selection services” (e.g., large pay-TV platforms and smart TVs).
Who (or what) will be in scope of the new legislation?
The platforms
The Government envisages that “regulated television selection services” (such services to be designated by the Secretary of State) will capture major services whose main function is the delivery of audio-visual media and which are used by a “significant” number of UK viewers, such as pay-TV services, smart TVs, streaming sticks/set top boxes and potentially relevant games consoles. This will likely not include video-sharing platforms (e.g., YouTube) or SVOD services such as Netflix that do not function as platforms / aggregators.
The PSBs
The Government envisages that “designated internet programme services” (such services to be designated by Ofcom) will not only include BBC iPlayer, ITVX, Channel 4, and My5, but also regional PSB services - i.e., S4C and STV. Whilst the Government considers that online PSB prominence will be mutually beneficial to both PSBs and regulated television selection services (a claim that providers of such selection services will no doubt dispute), on balance PSBs stand to benefit more than the regulated television selection services, and in particular, the Government considers that regional PSBs will get a “vital boost” from the effects of the legislation.
PSB content and channels (including “livestream” channels)
Whilst the detail of what an “appropriate” level of prominence looks like will sit within Ofcom’s guidance documents, the Government envisages that Ofcom will be looking at how “immediately viewable” PSB services/content are to the viewer in ‘high traffic’ areas of a television selection service’s UI. Given that prominence will be different for different UIs, Ofcom will need to adopt a flexible approach, which may change over time as television selection services and UIs evolve.
Significantly, the draft Media Bill extends beyond prominence of “programme services” (e.g. a PSB’s app icon) to include prominence of “public service remit content” which includes both PSB content and “livestream channels”.
The new framework provides that television selection services must carry and give prominence to a “listed” livestream main channel if it is offered as part of a PSB’s designated internet programme service and presented separately on a UI, and also that television selection services must ensure that PSB content is readily discoverable. In the case of livestream channels, where a livestream channel is not offered as part of a PSB’s designated internet programme service, a regulated television selection service will not be required to carry it or give it appropriate prominence (so the addition of livestream does not bring into scope any additional channels (e.g., FAST channels)).
The benefits and burdens of the new prominence regime
The benefits
The Government considers that the new regime (in particular, Ofcom’s guidance and dispute resolution function) will help future proof the ‘availability’ and ‘discoverability’ of designated PSB services against the risk that they will no longer be carried on regulated television selection services or not easily visible on the UIs of these services, and will ultimately simplify and speed up negotiations (resulting in a potential cost savings).
In guaranteeing the prominence of regional PSB services, it is anticipated that the legislation will also create significant benefits to these PSBs and to audiences, as the widespread availability of regional services will encourage the production and distribution of content that represents a range of cultural perspectives, languages, and local issues.
The burdens
The Government expects that the costs associated with the new prominence framework will be relatively minimal for television selection services, given that many such services already provide prominence to PSB on-demand and livestream services through commercial negotiations (however, the Government does not address the issue of content prominence in any great detail, which is something that television selection services do not typically offer to PSBs). According to the Government, the technical costs of providing prominence to regional PSB services are also likely to be relatively insignificant compared with the revenues generated by television selection services. That said, the cost to Ofcom of the new legislation will likely be substantial, as Ofcom will need to familiarise themselves with the legislation, draft the appropriate guidance documents, and set up the dispute resolution mechanism.
Additionally, the Government noted that the new legislation may disadvantage commercial non-PSB media services seeking prominence commitments from regulated television selection services, who may face higher fees or encounter other challenges as a result of the new prominence obligations to PSBs. There is also some concern that the new prominence regime may stifle innovation and result in a less dynamic media landscape over time by limiting the flexibility of television selection services to redesign their UIs and experiment with new features or alternative content presentation methods. Significantly, content prominence may also disadvantage non-PSB content (whose content may suffer in terms of discoverability) – an issue which will no doubt feature in Ofcom’s guidance.
Conclusion
Whilst the Government’s impact assessments provide a best estimate of the impacts associated with the proposed new online prominence regime, given that so many details of the new regime are yet to be determined (i.e., because they will be set out in future Ofcom guidance), it is possible that the actual impacts of the new legislation will differ. Time will tell whether the Government’s current predictions will prove accurate - so watch this space.
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