The UK Department for Digital, Culture, Media and Sport recently published the draft Media Bill. This is an initiative that media organisations operating in the UK (and beyond) have been eagerly anticipating, for it will determine media policy in a post-Brexit Britain. The Media Bill may also serve as a blueprint for how media regulation in other jurisdictions may adapt to the increasing use of digital technologies.
The Media Bill will reform the legal framework for public service broadcasting (“PSB”). It will also change the regulation of radio services and on-demand programmes.
Even if it will establish obligations for providers that are not regulated (or not regulated to the same extent as “traditional” media providers), the Media Bill does not change the fundamentals of UK media regulation. For example, it seeks to support the UK’s long established PSB regime (by e.g., giving PSBs greater flexibility in how they meet their public service obligations), but it does not introduce any radical changes to the PSBs’ remit and funding framework.
Following a brief overview of the draft Media Bill, this blog post will focus on arguably its greatest novelty, namely the prominence and findability rules set out in Parts 2 (for television services) and 6 (for radio services).
The draft Media Bill in a nutshell
The draft Media Bill is divided into seven parts, as follows:
Part 1 contains provisions that update the PSB framework. For example, it explicitly provides that public service content made available on video on-demand (“VoD”) services can contribute towards the fulfilment of the remit. It also amends certain quotas (quantitative obligations placed on a PSB, 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 VoD services.
Part 2 contains provisions on online prominence, which means that public service content will be available and easy to find across a range of television platforms that viewers use to watch TV online.
Part 3 contains provisions to address the sustainability challenges faced by Channel Four, including the introduction of a new sustainability duty and removal of an existing restriction on its involvement in programme-making.
Part 4 contains provisions which provide Ofcom new regulatory powers to draft and enforce a VoD Code. This is because VoD services (other than the BBC’s iPlayer) are not subject to Ofcom’s Broadcasting Code, which establishes appropriate standards for content, due accuracy in news, fairness and privacy. The new VoD code will be aimed at the largest, most TV-like VoD services to ensure that major services reaching UK audiences are subject to the same or similar obligations as UK broadcasters.
Part 5 contains provisions to update the regulatory framework for commercial radio. The Bill will remove a number of regulatory burdens, including requirements on stations to provide specific genres of content. It will also allow for the UK licensing regime to be extended to radio stations based overseas but seeking to provide a service to UK listeners.
Part 6 contains provisions to protect UK radio’s availability on connected audio devices, including ensuring that stations cannot be charged for the provision of their live service to listeners and that they are findable in response to a listener request.
Part 7 contains miscellaneous and general provisions including the repeal of section 40 of the Crime and Courts Act 2013, which would require news publishers to pay the costs of any court judgement if they were not a member of the approved regulator, regardless of the outcome of the court judgement.
Many of the obligations introduced by the Media Bill will be given flesh by Ofcom (through e.g., codes of practice) and the Secretary of State (through e.g., “implementing” regulations).
The analysis that follows focuses on Parts 2 and 6, which concern prominence and findability of media content. Though such rules have applied in the UK for decades, the Media Bill will extend their scope to several service providers that are not covered by the existing regime. Given the range of industry players that will fall under their scope, those rules are expected to have a significant impact on the UK market, and they will undoubtedly raise interesting questions as to how to ensure that users consume “quality” content online.
Prominence on “television selection services”
Prominence means giving designated channels a privileged position on services through which audiences access content. Prominence regulation increases the chances that users will identify “quality” content (i.e., content offered by “trusted” media organisations), thereby contributing to the fight against disinformation (and, more generally, to building a well-informed audience). However, it is fair to say that it cannot really prevent audiences from “binge-watching”. In other words, it is a type of regulation the effectiveness of which largely relies on “good” user behaviour.
In the EU, the Audiovisual Media Services Directive establishes that Member States “may take measures to ensure the appropriate prominence of audiovisual media services of general interest”. However, except for some jurisdictions, such as France and Germany, many Member States have yet to adapt prominence rules to online markets.
In the UK, the existing regulatory framework for ensuring prominence of PSB 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. The Media Bill will change that by extending their scope to online services.
Who can benefit from the new prominence regime?
The beneficiaries will be “designated internet programme services”, which are services (a) provided by the BBC, or (b) provided by another PSB and designated by Ofcom. This is not surprising. In many cases, beneficiaries of prominence rules have been determined by reference to whether they offer “public service content” or “content in the general interest”. This is usually the case with PSBs, which have a public service remit to fulfil. However, this approach has been subject to criticism because commercial broadcasters have been argued to also offer content in the general interest that is subject to strict regulatory standards.
There seems to be growing consensus that content in the general interest may comprise content offered by both public service and commercial providers. For example, the German Interstate Treaty establishes that commercial providers may benefit from prominence regulation if they meet certain conditions (e.g., in relation to the amount of time spent reporting on political events).
Though prominence rules under the Media Bill will only benefit PSBs, it is worth pointing out that the UK system has historically assigned the PSB status to several providers, including ITV and Channel Four.
An interesting point about the definition of “designated internet programme services” under the Media Bill is that the content they offer that may benefit from prominence regulation is not restricted to content that is broadcast on linear TV. In other words, the definition covers on demand content that is offered on a standalone basis (see Section 362AA(10), which refers to “a single on-demand programme service”). This seeks to reflect the shift from linear to on-demand content consumption and it implies that, for content to fall under the prominence regime, it need not necessarily fulfil “universality” criteria (i.e., it is not expected that the content in question should reach the entire population). In fact, certain provisions that set the conditions under which a service should qualify as a “designated programme service” establish that this could be the case where it “is capable of satisfying the needs and interests of a specific audience”.
Who should grant prominence to designated programme services?
Those that should grant prominence to designated internet programme services are referred to as “television selection services”, defined as follows:
“television selection service means a service or a dissociable section of a service, provided by means of the internet and in connection with internet television equipment, which consists of (a) the presentation of the internet programme services included in the service, and (b) a facility that enables the user (i) to make a selection between those services or between programmes provided by those services or both, and (ii) to access the service selected or the programme selected or both.”
There are a couple of points worth making on the above definition. First, it is quite broad, for it seems to cover the user interfaces (“UIs”) on smart TVs, set-top boxes and streaming sticks. However, it is still not clear which services will be subject to the new regime. This is because the covered services will be services used by a “significant number of members of the public in the United Kingdom”, a determination that will be made by the Secretary of State. Moreover, the Explanatory Notes accompanying the Media Bill mention that the Secretary of State may designate a specific television selection service or a description of a television selection service (i.e., a category).
Second, the term “television selection service” covers facilities that enable access to the programme or service selected. This refers to access by the end user, but it implicitly establishes an access right for the designated internet programme services.
How will prominence work in practice?
This is the one-million-dollar question. We know the following so far. First, as mentioned above, the television selection services that should grant prominence will be services used by a significant number of members of the public. This will be determined by the Secretary of State through regulations.
Second, the designated internet programme services and television selection services are expected to enter into an agreement. The Media Bill broadly defines the objectives of the agreement as follows:
(a) a designated internet programme service is given an appropriate degree of prominence within a regulated television selection service;
(b) arrangements made between the provider of a designated internet programme service and the provider of a regulated television selection service are consistent with the former being able to meet costs reasonably incurred in fulfilling the public service remit for the licensed public service channel in question or (as the case may be) S4C’s public service remit;
(c) arrangements so made do not disproportionately restrict how the provider of a regulated television selection service may make innovations in the ways that users may select and access internet programme services or programmes included in such services.
Ofcom will prepare and publish guidance about how parties to the agreement may act consistently with the agreement objectives. Moreover, Ofcom will adopt a code of practice describing actions that it recommends for the purpose of securing that the manner in which a regulated television selection service presents internet programme services to its users complies with the prominence duties.
Ofcom’s guidance and code of practice will undoubtedly resolve many issues of interpretation arising from the above obligations. However, such agreements can also be expected to give rise to litigation. In addition to general questions about prominence (e.g., is the fifth position in a list of search results “prominent” enough for the beneficiary’s services to be consumed?), the agreements in question will be tailored to the relationship between each television selection service and designated internet programme service. There is only so much “prime real estate” that can be granted and how this will be allocated to each beneficiary through those agreements remains to be seen.
Findability of “relevant internet radio services”
Prominence rules only concern television services. However, this does not mean that radio services will not benefit from the Media Bill. This is the objective of Part 6, which regulates findability of radio services. In a nutshell, simulcasts of UK licensed radio stations should be made available on specific voice-activated connected audio devices at no cost to the radio station itself. Moreover, such devices will not be permitted to interrupt radio station transmissions.
Who are the beneficiaries of the findability rules?
Beneficiaries are “relevant internet radio services”. An internet radio service is defined as a service “which consists in the provision […] of programmes consisting wholly of sound (together with any ancillary services) with a view to their being made available for reception by members of the public by being distributed by means of the internet (whether by the provider of the service or another person)”. The reference to “[distribution by] the provider of the service or another person” essentially covers cases where audio content is made available directly by a radio station and cases where content is made available through third-party content aggregators. This expands the scope of the protected content.
“Relevant” internet radio services (i.e., services that can benefit from the new regime) specifically include sound services provided by the BBC and services authorised to be provided by a licence. The latter category clearly includes commercial audio service providers.
A noteworthy point that concerns the scope of audio services that may benefit from the Media Bill arises from the wording of 362BF(2), which reads as follows:
“For the purposes of this section, a service corresponds to a relevant radio service if all of the programmes included in the relevant radio service, other than such programmes as are advertisements, are provided at the same time on both services.”
The above covers simulcasts, but it seems not to cover all (on-demand) services provided by relevant internet radio services. This is in contrast with the prominence rules discussed above, which cover standalone on-demand services offered by PSBs. The rationale for restricting the scope of “relevant internet radio services” to simulcasts is unclear at this stage. It may be an aspect of the Bill that would benefit from clarification during the forthcoming debates.
Moreover, under Section 362BF(3), a service qualifies as a relevant internet radio service “where the provider of the service makes reasonable efforts to secure that any advertisement included in the service is an advertisement that has been, or is intended to be, included in the relevant radio service to which the service corresponds”. This wording may be construed as restricting the ability of relevant internet radio services to deliver targeted advertising. Yet, targeted advertising reflects the business model on which most relevant internet radio services rely and interfering with the ability to offer such services would seem unjustified and disproportionate. What this provision likely attempts to do is to ensure that advertising on the relevant internet radio services complies with certain advertising standards. This is another aspect of the Bill that will benefit from clarification.
Who should ensure findability of relevant internet radio services?
Covered services are “radio selection services”, defined as follows:
“radio selection service” means a service provided by means of the internet which enables, or among other things enables, a user of the service to use that service—
(a) to make a selection between internet radio services provided by different persons, and
(b) to cause a selected internet radio service to play, by giving spoken commands that are recorded by equipment connected to the internet.
The reference to “spoken commands” does not reflect all the different ways in which listeners access internet radio services. Notably, instead of spoken commands, listeners may use screen-based navigation in order to find and select such services. A good example of a definition that effectively considers consumption patterns in audio markets (and is future-proof) is the definition of “virtual assistants” in the DMA. Under Article 2(12) of the DMA, virtual assistant means “a software that can process demands, tasks or questions, including those based on audio, visual, written input, gestures or motions, and that, based on those demands, tasks or questions, provides access to other services or controls connected physical devices” [emphasis added].
Despite the above shortcoming, the Media Bill attempts to be forward-looking; under 362BA(3)(b), the Secretary of State may make amendments to the definition of “radio selection services” depending on how users “operate the service”.
Finally, similar to what applies to prominence rules, radio selection services will be designated by the Secretary of State only if it is determined that the service is used by a significant number of members of the public in the UK.
How will the findability rules work in practice?
There are two sets of obligations for radio selection services. First, regulated radio selection services must secure that users are able to select the relevant internet radio service, and cause it to play. Notably, this should be done free of charge to internet radio service providers. This ban on carriage fees should arguably be broadened to include measures having an equivalent effect in order to prevent radio selection service providers from circumventing this requirement through other means.
Second, regulated radio selection services must secure that, where the service is used to cause a relevant internet radio service to play, the service causes only the relevant internet radio service to play. This obligation clearly seeks to protect content integrity, which is an established principle in media regulation (see, for instance, Article 7b of the Audiovisual Media Services Directive).
Interestingly, the provider of a regulated radio selection service must draw up a statement about how the provider intends to comply with the above duties; keep the statement under review (and, if appropriate, revise it); and publish the statement and any revised statement (see Section 362BI(3), (4) and (5)). This obligation reminds us of the compliance reports that “gatekeepers” will need to prepare for the purposes of the Digital Markets Act. The obligations established in the Media Bill concern complex technical matters and requiring the provider to set out in a publicly available statement that will be subject to review is an appropriate safeguard to ensure its effectiveness.
The Media Bill is one of many initiatives seeking to regulate the UK digital sector. It attempts to address important issues, including in relation to the modernisation of the PSB framework and the prominence/findability regime. Notably, the Media Bill seeks to establish rules that reflect consumption patterns, such as the shift to on-demand services and access to media content through voice-activated connected audio devices.
In addition to the Media Bill, the UK digital sector will also be shaped by the Online Safety Bill and the so-called DMU regime, which have been in the making for a while. Despite the extraterritorial application of the “EU equivalents”, notably the Digital Markets Act and the Digital Services Act, UK businesses and consumers cannot be effectively protected until all those initiatives become law.