With thanks in no small part to the series of Covid-19 lockdowns across the UK from 2020-2021, the stratospheric rise of video-on-demand platforms (VoDs) over the last decade has been equally impressive as it was inevitable. According to the UK’s Office of Communications (Ofcom), younger adults watch almost seven times less, linear broadcast TV than those aged 65 and over. Nine out of ten 18-24 year old adults bypass TV channels and head straight to streaming services. Ofcom notes that one in five UK households, or 5.2 million homes, are signed up to all three of the most popular VoDs, Netflix, Amazon Prime Video and Disney+.

If you were to ask a random person on the high-street for their opinion on what this success means for the UK’s public service broadcasters (currently the BBC, S4C, ITV and the Channel 4 and 5 licence holders) (PSBs), the likely answer would be “well, it’s probably not great”.

On Tuesday 28 March, the UK’s Department for Culture, Media and Sport (DCMS) published it’s highly anticipated Draft Media Bill (Media Bill) which seeks to address concerns on the impact of digital disruption on the sustainability of the UK’s media industry, and to address the challenges posed by the rise of VoDs by modernising the broadcasting regulatory framework to better reflect changes in the media landscape and to ensure that UK broadcasters remain globally competitive.

While the Media Bill also sets out proposed reforms for Channel 4, the legal framework for the regulation of radio in the UK and seeks to strengthen protections for journalists and press freedom in the UK, this brief summary focuses on the key reforms relevant to the TV industry more generally, which will come into force if the Media Bill is passed, including the following:

1. Online programming will now count towards the current public service remit for television: The Media Bill aims to update and simplify the current public service remit for television and changes the legislative framework for PSBs, to give PSBs greater flexibility in how they contribute to that remit.

In particular, the Media Bill:

• provides that public service content made available on a wide range of audio-visual services, including VoDs, can contribute towards fulfilment of the remit; and
• amends certain quotas (quantitative obligations placed on a PSBs, generally to commission and/or broadcast at least a certain amount of a certain type of content) to allow PSBs to deliver against these quotas by way of any on-demand services which are, or are part of, a “designated internet programme service”.

Where Ofcom consider appropriate, they may designate an on-demand service as an “internet programme service” if it is either provided by the BBC, or it is provided by another PSBs (or a person associated with a PSBs) and meets the conditions set out at Section 362AA (3) of the Media Bill,  which include that the service makes or would, if designated, be capable of making a significant contribution to the fulfilment of the public service remit for that licensed public service channel, and that the public service remit content included in the service is readily discoverable and is promoted by the service. There are separate conditions for S4C and BBC at Section 362AA (4) – (5).

2. Increased prominence on Television Selection Services: Global television selection services used by a significant number of UK viewers – such as smart TVs, set-top boxes and streaming sticks (Television Selection Services) will be legally required to carry and “prominently” feature designated PSBs’ VoD/online offerings, such as on-demand platforms like BBC iPlayer, ITVX, All 4, My5, S4C’s Clic and STV Player. 

The existing regulatory framework for ensuring carriage and prominence of PSBs’ channels, set out in the Communications Act 2003, does not extend to the PSBs’ online services, including on-demand and livestreamed programme services, nor services that enable viewers to navigate and select TV programmes beyond the TV guide (electronic programme guide), such as the user interfaces (UIs) on smart TVs, set-top boxes and streaming sticks, so the Media Bill represents a major departure from the existing law.

According to the Explanatory Notes accompanying the Media Bill, “prominence effectively means giving designated PSBs a privileged (or “prominent”) position on Television Selection Services through which audiences access this content”.

The DCMS hopes that this reform will make distinctly British programming easy to find as viewing increasingly shifts online, and UK audiences can readily find the PBSs’ content when they turn on their TV.

3. VoDs now under Ofcom’s jurisdiction: Ofcom, as required under the Communications Act 2003 (as amended) and the Broadcasting Act 1996 (as amended), drew up a code for UK television and radio, covering standards in programmes, sponsorship, product placement in television programmes, fairness and privacy, including standards for harmful, offensive and accurate material found on television (Broadcasting Code). But most VoD’s are not covered by the Broadcasting Code. Some VoDs are not regulated in the UK at all.

Under the Media Bill, VoDs that are not currently regulated in the UK but who target and profit from UK audiences will be brought under Ofcom’s jurisdiction, in particular:

• Ofcom have been given new regulatory powers to draft and enforce a “Video-on-Demand Code of Conduct” which is expected to align with the existing Broadcasting Code;
• VoD viewers will now be able to formally complain to Ofcom; and the Bill will strengthen Ofcom’s duty to assess audience protection measures on VoDs such as age ratings and viewer guidance; and
• Ofcom will have more robust powers to investigate and take action to enforce standards if they consider it appropriate, including issuing fines of up to £250,000 and – in the most serious and repeated cases – restricting a service’s availability in the UK. The White Paper for the Media Bill (April 2022) proposed that VoDs either be fined the £250,000 maximum or 5% of their local revenues, whichever was higher, but it looks like the latter option has been removed from the Media Bill.

4. Improved accessibility: The Media Bill introduces new requirements for VoDs to make their content more accessible to those with seeing and hearing impairments. VoDs will have to provide subtitles on 80% of their programmes, while 10% must have audio description and 5% signed interpretation. These requirements will align with existing statutory requirements for access services in place for PSBs and other linear broadcasters. 

5. Exclusive access to TV rights for UK’s major sporting events solidified for PSBs: The Listed Events Regime aims to ensure that the British public is able to watch certain events of national importance at no additional cost, by prohibiting pay TV broadcasters from acquiring exclusive rights to listed events and giving PSBs the opportunity to bid for the broadcasting rights of those events.

Such events are drawn up on a list by the Secretary of State and currently includes major sporting events such as the Olympic Games, FIFA World Cup, FA Cup final, Grand National and Wimbledon finals. Once listed, broadcasting rights to these events must be made available for purchase to “qualifying broadcasters” – those which (i) reach 95 per cent coverage of UK viewers, and (ii) at no additional cost to the viewer than the licence fee. All services which currently qualify are operated by PSBs.

The Media Bill limits the definition of “qualifying broadcaster” to PSBs, meaning that only PSBs are able to bid for the broadcasting rights to many of the UK’s major sporting events.

While the draft Media Bill is a much-needed effort to modernise public service broadcasting, if passed, its introduction marks the beginning of a new chapter in the evolving relationship between Ofcom and VoDs. It will be interesting to see how this relationship develops, and whether the new rules and requirements under the Media Bill will be effective in keeping PSBs relevant and competitive in the digital age.