In the first article of our two-part series on “what’s not in the draft Media Bill”, we looked at two notable omissions from the draft Media Bill: (i) certain digital rights from within the listed events regime, and (ii) reforms to impartiality rules. Here in part two we look at further areas that have not been addressed in the draft Media Bill, being:
- powers granted to the Secretary of State for Digital, Culture, Media and Sport (the “Secretary of State”) and Ofcom to define and designate the scope of certain provisions of the draft Media Bill;
- Free Ad-Supported Streaming Television (“FAST”) channels; and
- content on social media platforms.
1. Delegated powers
The draft Media Bill has granted each of the Secretary of State and Ofcom the power to implement certain provisions of the draft Media Bill via future orders or additional regulations. Whilst the intent of many of the relevant provisions within the draft Media Bill is clear, exactly how they will operate in practice (and, importantly, which organisations will be caught by the provisions) is still unknown. We have consolidated a list of some of these key provisions that are still to be defined/clarified:
(i) The Secretary of State has been granted key powers to:
- amend, by way of additional regulations, the period for which PSMOs’ on-demand content must be made available in order for such content to count towards the PSMOs’ remit (currently 30 days);
- on the advice of Ofcom, designate “regulated television selection services” (e.g., significant smart TVs, set top boxes or pay TV operators) that will be subject to “must carry” obligations to make available “designated internet programme services” (i.e., internet-based services provided by PSMOs, such as BBC iPlayer) and to afford such services an appropriate degree of prominence;
- determine which on-demand programme services, including non-UK on-demand programme services (i.e., services that are not headquartered in the UK, and/or do not make editorial decisions in the UK but are made available to members of the public in the UK, such as Netflix or Apple TV) that will fall under the new Tier 1 regulatory code;
- designate “regulated radio selection services” (such as smart speaker operators), which will have “must carry” obligations in relation to the carriage of certain radio services;
- define what is meant by “independent productions” and amend the independent production quota requirements of public service broadcasters (which we are calling ‘public service media owners’ in this article (“PSMOs”)); and
- define what is meant by “original productions”, to which a PSMO must dedicate a specific amount of broadcasting hours (as determined by Ofcom) (these last 2 powers being similar to, but broader than, existing powers).
(ii) Ofcom has been granted key powers to:
- determine what “designated internet programme services” are, which will then benefit from new prominence and availability requirements;
- issue a new code of practice relating to what steps a “regulated television selection service” must take in order to provide an appropriate degree of prominence to “designated internet programme services”;
- develop and enforce a new standards code for the regulation of Tier 1 services which will level the playing field between UK linear broadcasters and VOD service providers, including, amongst other duties, implementing complaints and handling procedures where Tier 1 service providers have failed to observe the code;
- determine how applications for a licence of local radio services are made;
- issue a new code of practice setting out requirements that will apply to “regulated radio selection services” (such as smart speaker providers) in order to, for example, enable users to access services that they have requested using a voice assistant;
- determine the minimum proportion of broadcasting hours which must be allocated to original productions by licensed public service channels (including at peak times); and
- determine the minimum proportion of broadcasting hours which must be allocated to regional productions (i.e., programmes made outside the M25 area) by licensed public service channels (as with the DCMS powers, these last 2 powers track similar existing powers.
2. FAST Channels and social media
(i) FAST channels
The draft Media Bill does not make specific reference to the regulation of FAST channels, meaning that FAST channels will continue to fall under (or in most cases, outside of) the existing linear regulatory regime. Given the nature, commercial model and growth of FAST channels (FAST channels are currently viewed weekly by 15% of online audiences in the UK) the draft Media Bill provided an opportunity for the Government to: (i) clarify the position on the regulation of FAST channels, to ensure that all linear services fall within Ofcom’s remit; and/or (ii) to create a new (potentially less burdensome and cheaper) regulatory regime for FAST channels. The latter would need, for example, to reflect that it is not realistic/economically viable to charge a minimum fee of £2,500 for a portfolio of hundreds of often-changing, often single-show channels.
As FAST channels are expected to make up 20% of the UK’s ad-supported video market by 2027, we can assume that the issue of FAST channel regulation is something that will continue to be a topic of discussion.
(ii) Social media
The draft Media Bill does not include provisions regulating audiovisual content found on social media platforms. Whilst not necessarily a surprise, given that there is other pending legislation, such as the Online Safety Bill, that will specifically target social media platforms, there is a growing view that social media platforms are increasingly becoming entertainment platforms and not solely social ones. In fact, many content makers are bringing their content directly to these services and, while user-generated content remains at the core of social media, a 2022 Ofcom study found that social media is now being used as a means to deliver news, educational and children’s content and has, for example, overtaken traditional TV as a route to receive news amongst 16-34 year-olds.
It remains to be seen whether, as social media platforms continue to draw audiences away from traditional media such as TV and radio, there will be pressure on the Government to further regulate such services.
Conclusion…
Although many have welcomed the draft Media Bill and expect its provisions to provide an effective framework for the UK’s media industry to grow and thrive, there is still some uncertainty as to how some of its measures will be implemented in practice. However, when you consider the rapid evolution of the media sector, and of how audiovisual content is delivered, it could be viewed as sensible that the Government has introduced some flexibility for the Secretary of State and Ofcom to respond to changes by amending existing or developing additional regulations.
That brings this two-part series to a close! We are continuing to monitor the draft Media Bill’s progress, and will keep you updated on any news as it emerges, right here on our Media Bill Tracker.
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