On 29 March 2023, the UK’s Department for Culture, Media and Sport (“DCMS”) published the draft Media Bill (the “Bill”), which will deliver on a number of legislative reforms set out in the Government’s White Paper entitled “Up Next; the Government’s vision for the broadcasting sector”, published in April 2022.
The Bill forms part of the UK Government’s wider efforts to ensure the regulation of TV and radio evolves in line with changing technology.
The proposed legislative package, which is distilled into six parts, includes significant developments in the regulation of video-on-demand (“VoD”) service providers.
Currently, VoD services, other than BBC’s iPlayer, do not fall within the scope of OFCOM’s Broadcasting Code, which sets standards for content including harmful or offensive material, due accuracy in news, fairness and privacy. However, Part 4 of the Bill, if passed into law, will give OFCOM the power to draft and enforce a new Tier 1 standards code (“VoD Standards Code”), similar to the existing Broadcasting Code, which would subject “Tier 1” VoD services to the same or similar obligations as UK broadcasters.
The government will have the power to designate, in secondary legislation, both UK and non-UK VoD services as “Tier 1” services.
In the explanatory notes to the Bill, the UK Government confirms that the new regime “will be aimed at the largest, most TV-like VoD services to ensure that major services which engage UK audiences at scale are subject to the same or similar obligations as UK broadcasters”. The government has already indicated that a number of global streaming services will be potentially within scope.
The Bill also contains accessibility requirements to support people with disabilities. If passed, the Bill will give OFCOM the power to publish an accessibility code (“Accessibility Code”) under which Tier 1 VoD services would need to provide:
- subtitles, on 80% of their programmes;
- audio description, on 10% of their programmes; and
- signed interpretation, on 5% of their programmes.
The accessibility requirements are intended to align with existing statutory requirements for broadcasters.
Under the new regime, Ofcom will have the ability to impose financial penalties of up to the greater of 5% of the relevant Tier 1 VoD service provider’s qualifying revenue or £250,000, where a Tier 1 VoD service provider has failed to observe either the VoD Standards Code or Accessibility Code. OFCOM will also have the power to restrict a service’s availability in the UK, where breaches are serious and repeated.
The Bill, which is in the pre-legislative scrutiny phase, was published in draft form to facilitate a period of engagement with stakeholders. The DCMS Committee is expected to publish its findings and recommendations this summer in response to the submissions received from industry stakeholders as part of the Committee’s call for evidence. On the basis of these findings, the Government may propose amendments to the Bill, taking into account any unintended consequences identified during the pre-legislative scrutiny phase.
Before issuing its VoD Standards Code, OFCOM must consult Tier 1 service providers, in addition to those representing the interests of potential audiences of Tier 1 services and other persons deemed to have an interest in the content of the Code. Similarly, before issuing its Accessibility Code, OFCOM must consult those representing the interests of people with disabilities, as well as Tier 1 service providers. Such consultation is still some time away, as the Bill will need to be passed into law first.