Draft Media Bill: Final Report

This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.

Thirteenth Report of Session 2022–23

Author: Culture, Media and Sport Committee

Related inquiry: Pre-legislative scrutiny of the Draft Media Bill

Date Published: 22 September 2023

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Contents

Introduction

1. A combination of changing audience habits and rapid developments in technology has led to major structural changes in the TV industry. The viewing of broadcast TV is in long-term decline: last year, its weekly reach fell to 79%, down from 83% in 2021, the sharpest fall on record,1 and is now 16% lower than pre-pandemic levels.1F2 Nor is it only the young who are switching to streaming services: the over-64s watched 8% less broadcast TV in 2022 than in 2021.3

2. While Public Service Broadcasters4 (PSBs) continue to dominate the list of most-watched programmes, such as England’s quarter-final against France in the 2022 World Cup or the Queen’s Jubilee, the number of programmes achieving mass audiences is in considerable decline.5 Unlike in the broadcast environment, PSBs’ online services are not entitled to a privileged position on smart TVs or other connected devices, creating the very real risk that the harder it is for PSB content to be found, the less likely it is to be watched. These issues are not new: Ofcom first recommended changing the law to give PSBs prominence on connected devices in 2019.6 Now, in 2023, the Government has produced draft legislation which would deliver that, as well as tackle a range of other challenges which reflect the world of 2023 rather than 2003.

Draft Media Bill

3. The Government published its draft Media Bill7 on 29 March 2023. The Bill is intended to:

  • simplify the remit for Public Service Broadcasters (PSBs) and ensure public service content is easy to find for UK audiences on platforms and connected devices such as smart TVs and streaming sticks;
  • keep Channel 4 in public ownership and remove the existing publisher-broadcaster restriction so that the channel can produce and monetise its own content;
  • remove geographical broadcasting restrictions on S4C, enabling the channel to offer its content on a range of platforms in the UK and abroad;
  • bring Video-on-Demand platforms under stricter regulatory control;
  • remove some regulatory burdens from commercial radio stations;
  • protect radio’s position on voice-activated smart speakers; and
  • repeal Section 40 of the Crime and Courts Act 2013 which would (if commenced) require news publishers to pay both sides’ costs in any legal proceedings if they were not a member of an approved regulator.8

4. On 19 April 2023, we announced our plans for pre-legislative scrutiny of the draft Bill, with a call for evidence on issues relating to public service broadcasting, Video-on-Demand, radio and general issues the Bill raised.9

Our inquiry

5. During the course of our inquiry we found that the measures regarding radio were the most contentious part of the legislation, so we published an interim report on these measures before the summer to enable the Government to address our concerns promptly. This report focuses on the remainder of the Bill. We have also included, as an annex to the report, a schedule of drafting points for the Department to consider. Our conclusions and recommendations have been informed by more than 70 written submissions, as well as oral evidence from the Voice of the Listener and Viewer, the BBC, ITV, Channel 4, Channel 5, S4C, MG Alba, Netflix, Radiocentre, TuneIn, techUK, Google, Sky, Amazon, Ofcom, Robert Specterman-Green, Director, Media and Creative Industries at the Department for Culture, Media and Sport (DCMS) and the Government’s media minister, Rt. Hon Sir John Whittingdale MP. We would like to thank everyone who contributed to this inquiry, including our specialist adviser, Professor Catherine Johnson, Professor of Media and Communication at the University of Leeds.

1 Public service broadcasting

6. The UK’s Public Service Broadcasters (PSBs)—the BBC, ITV, STV, Channel 4, S4C and Channel 5—are grappling with technological developments and changing audience habits. Competition for viewers has shifted beyond broadcast TV towards streaming services such as Netflix, video sharing and social media platforms, such as YouTube, Facebook and TikTok, and gaming platforms.10 Not only are PSBs having to address these challenges, they are doing so while being held to a complicated range of purposes and objectives which together make up the “PSB remit”.11 Part 1 of the draft Bill updates and simplifies this remit and gives PSBs greater flexibility in how they can deliver it.

The public service remit

7. The public service remit gives viewers access to a wide range of content on a free-to-air basis. This remit was set out in detail in the Communications Act 2003, with PSBs required to meet specific purposes and objectives.12 The Act details the way PSBs should, taken together, ensure the remit is fulfilled, including providing sufficient content in specific genres such as news, entertainment, drama, science and religion and other beliefs.13 However, the Government regards this remit as “outdated” and considers that the purposes and objectives overlap.14 It wants to replace them with a shorter remit, “focussed on the things that they are uniquely positioned to deliver and that would make us poorer as a nation—culturally, economically and democratically—if they were not provided”.15

8. Accordingly, the draft Bill stipulates that the PSBs, taken together, must make available a broad range of content which is “likely to meet the needs and interests of as many different audiences as practicable”.16 However, other than news and current affairs, existing requirements to provide specific genres of content are removed. Instead, PSBs must provide what Ofcom considers to be a “sufficient quantity” of material that “reflects the lives and concerns of different communities and cultural interests and traditions within the UK and locally in different parts of the UK and is in, or mainly in, a recognised regional or minority language”.17 These languages are Welsh, the Gaelic language as spoken in Scotland, Irish, Scots, Ulster Scots or Cornish.18

9. There was considerable concern raised in our evidence about the removal of genres. While the Government committed in its 2022 White Paper to simplifying the remit, it did not announce that any genres would be removed.19 The Voice of the Viewer and Listener described genres as “societally valuable”. It noted that most had “declined significantly” since 2003 and argued that the Bill would lead to an “even faster decline”.20 Colin Browne, Chair of the Voice of the Listener and Viewer, told us that he was concerned about the impact this could have on audiences:

The approach to this Bill seems to have been to look at the interests of public service broadcasting and how that can be preserved going forward. That is good—we are big supporters of public service broadcasting—but it has to be done in a way that protects the interests of audiences and citizens. If you make things too easy for public broadcasters we fear that that will mean that we will move more down a commercialisation route and you will lose some of the high quality, societally valuable kind of content.21

10. The Creative Industries Policy & Evidence Centre at Cardiff University argued that the new remit undermined the definition of public service broadcasting. It wanted the remit to be redrafted to “explicitly include the most important, publicly valued genres of audiovisual content”:

The relaxed requirements would effectively enable PSBs to reduce their investment in the production of these socially and culturally significant genres (thereby diminishing the public value created for audiences), while still ostensibly fulfilling their expectations under the revised public service remit [ … ] Ofcom could interpret some or all of the removed genres and objectives as necessary for fulfilling its revised PSB obligations. However, in removing its responsibility for monitoring the delivery of that content, Ofcom would be unequipped to identify the extent to which these genres are sufficiently available or serving audiences effectively.22

11. The International Broadcasting Trust described the revised remit as “a cause for some alarm” amongst those keen to see an increased presence of international coverage.23 It argued that the remit should include an obligation to provide “at risk content”, such as programmes on international matters. The UK Coalition for Cultural Diversity described genres as “essential to support our creative industry and talent growth” and argued that some were “vulnerable to commercial failure”, such as arts and religious programming.24 Furthermore, Teledwyr Annibynnol Cymru, which represents the independent TV production sector in Wales, argued that the removal of genres could create “a less beneficial PSB system in terms of addressing all audiences’ needs and commissioning in already underserved genres”:

Without the protections for specific genres, we could see an increased tendency by the PSBs to gravitate towards commissioning only in those genres delivering larger audiences, leading to a reduction in range and diversity of content provided to UK audiences.25

12. Sandford St Martin Trust argued that the changes would result in “a steep decline–if not the overall extinction–of socially valuable and valued but already endangered PSB genres including content exploring religion and belief”. It described the new remit as “too vague to be enforceable”.26 Humanists UK told us that the new remit would not ensure programming for and about religion or belief and feared that this “would result in this essential programming being overlooked”,27 while UK Music argued that the removal of genres “dilutes some of the protections given to help maintain cultural content” and wanted the revised remit to retain references to music and other cultural activity.28 John Morrison, chair of the Gaelic media service MG Alba, welcomed the remit’s minority languages requirement but told us that the content provided needed to be “much higher” than it currently was.29

13. However, Magnus Brooke, Group Director of Strategy, Policy and Regulation at ITV, said that the implications of removing genres would not necessarily be significant, “partly because what that does is look at the system as a whole. It does not look at any individual broadcaster and say, “You have to provide each of those genres as part of your contribution to PSB.”30 Likewise, Mitchell Simmons, Vice President of Public Policy and Government Affairs EMEA at Channel 5’s owners Paramount, told us that Channel 5 did not foresee any changes in its output as a result of the simplified remit.31

14. The Minister told us that the greater flexibility of the new remit was designed to take account of changes in the TV landscape over the past 20 years:

To some extent it is because when the original remit was drawn up there was a relatively limited number of broadcasters. Today you have a huge range, a lot of them supplying what people might well regard as public service content, particularly in the areas of high-end drama, children’s programming, specific programmes, religious programming. The requirement has changed but that is not to say that we do not still believe that there is a need for public service broadcasting to deliver the core content that most people would regard, but this is to give a bit more flexibility in its delivery.32

He told us that he was keen that genres should still be available but did not regard it as necessary to specify this in the way that it currently is.33

15. However, Ofcom has highlighted in the past that the removal of a genre does contribute to a decline in provision. In a review of public service broadcasting in 2015, Ofcom described the provision of non-animation programming for children, beyond that of the BBC, as “limited” and reported that one of the reasons for this was the removal of quotas for children’s programming in the Communications Act 2003.34 Meanwhile, in 2020, in its most recent review of public service broadcasting, Ofcom reported that there continued to be “limited provision” of children’s programmes, arts, formal education, religion and ethics. While PSB provision was supplemented by content on other channels, including on-demand services, podcasts, radio and online, the regulator highlighted that “these alternative sources vary in terms of quality and availability for all audiences”.35

16. The Government is seeking to simplify the public service remit; however, removing the requirement to provide specific genres of content goes beyond mere simplification. The removal of origination quotas for UK children’s content for commercial Public Service Broadcasters led to significant reductions in the production of original children’s TV, and we are concerned that the draft Media Bill’s removal of the specific reference to other genres will lead to similar reductions in content, particularly in the less commercially successful areas. We recommend that the Government retains obligations on Public Service Broadcasters to provide specific genres of content.

Backstop power

17. The Bill requires Ofcom to report on the extent to which the public service remit is being fulfilled by the PSBs. It also creates a “backstop” power by which the Secretary of State can create additional quotas, requiring PSBs to provide more of a particular type of programming, if the Minister thinks such programming is not being provided “to the extent that is appropriate”.36 Any use of the power would need to have been preceded by a report from Ofcom.

18. Several organisations queried how Ofcom would judge whether audiences were being underserved if the regulator was no longer monitoring genres. Directors UK argued that, if PSBs were not obligated to produce certain types of content, then it is “unlikely that this will be measured, meaning it will be harder to track if there is a drop in provision”.37 Teledwyr Annibynnol Cymru said that the legislation was unclear regarding how Ofcom would monitor PSB provision and so, correspondingly, it was unclear how Ofcom would be able to inform the Secretary of State regarding any concerns about levels of provision.38 The Creative Industries Policy & Evidence Centre at Cardiff University argued that the Bill “substantially reduces the responsibility of Ofcom to monitor PSBs’ delivery of content”:

Ofcom could interpret some or all of the removed genres and objectives as necessary for fulfilling its revised PSB obligations. However, in removing its responsibility for monitoring the delivery of that content, Ofcom would be unequipped to identify the extent to which these genres are sufficiently available or serving audiences effectively.39

Likewise Colin Browne, chair of the Voice of the Listener and Viewer, told us that it was difficult to judge whether the backstop would provide sufficient protection “because you have to ask what will the Secretary of State be judging it against”. He argued that, if the criteria had not been set out, it would be “quite difficult for the backstop to operate”.40

Delegated powers

19. Though any decision to create a quota must be preceded by a report from Ofcom, the Secretary of State can create one even if Ofcom has not recommended it, as long as the Minister is “satisfied that it is appropriate to make the regulations”.41 The Department’s Delegated Regulation Memorandum does not explain in what circumstances the Government believes it may be necessary for the Secretary of State to use the backstop without or contrary to a recommendation from Ofcom.42 Furthermore, according to the Department’s impact assessment, PSBs argue that the backstop power is unnecessary, given that Ofcom is already able to conduct reviews of PSB output and make interventions to secure support for genres that are “perceived as at risk”.43 One (unnamed) PSB told DCMS that the power of the Secretary of State to establish new quotas for underserved content areas risked removing checks and balances to ensure that media regulation is independent of government, while another stated that it could risk undermining the independence of Ofcom as regulator.44

20. When we asked Kate Biggs, Director of Content Policy at Ofcom, whether the Government was the appropriate body to provide that backstop, she highlighted that any intervention would be informed by Ofcom’s compliance reporting, engagement with individual PSBs on their statements of programme policy and its periodic PSB reviews.45 The Minister subsequently told us that the increased flexibility of the new remit necessitated having such a power, “in case it becomes apparent that specific genres are not delivered in the way that we had anticipated”.46

21. We are concerned that the “backstop” power, enabling the Secretary of State to specify new categories of audiovisual content should the Secretary of State consider that they are being underserved, creates the perception that media regulation is no longer independent of government. We recommend that the Secretary of State’s power to specify new categories of audiovisual content should only be exercisable following a recommendation from Ofcom.

Protection for broadcast viewers

22. The Bill would give PSBs greater flexibility in how they can deliver their remit: currently they can use only their linear broadcast services, but the Bill would enable them to use their on-demand content as well.47 The Bill does not change PSBs’ existing obligation to broadcast news on linear channels, including during peak hours,48 and it also allows Ofcom to set peak hour quotas for original productions,49 but otherwise PSBs can use on-demand content to meet their remit. While the Bill requires Ofcom to review whether broadcasters have taken steps to ensure their content could be received or accessed “by so much of the broadcaster’s intended audience as is reasonably practicable”,50 the Bill’s greater flexibility has generated concerns that this could lead to a reduction in public service content on linear channels. This would have acute consequences for the 7% of households who do not have access to the internet at home: Ofcom reports that 69% of these households say they do not want or need to be online, 20% are concerned about complexity and 20% about cost.51 Meanwhile, an estimated 68,000 premises do not have access to a decent broadband service.52

23. Colin Browne, chair of the Voice of the Listener and Viewer, emphasised that on-demand services were not universal:

Universality is really important and Ofcom needs to have the means and criteria against which to measure whether the PSBs are delivering this kind of content—this high-fibre content, as I describe it—on the main channels and not just pushing it off on to their apps.53

The campaign group Broadcast 2040+, which wants broadcast services to continue beyond 2040,54 argued that the Bill could lead to audiences who rely on broadcast services facing an “inferior experience of public service broadcasting”:

Without additional safeguards, the Draft Bill, as worded, could be damaging and undermine the importance of universality, which ensures that everyone across the nations of the UK can access free public service content [ … ] Being able to access or afford high-quality broadband or being able or willing to sign-up to and use online platforms should not become a barrier to accessing public service content.55

24. The community channel Together TV argued that “content created for younger audiences, niche interests, or as test-beds for diverse talent and representation may live online only, in PSB streaming services, YouTube and Tik Tok, increasing the demographic divide”.56 The telecommunications company Arqiva described PSBs as “key contributors” to the wider broadcasting sector and so any changes in their delivery of services “could have a wider impact on the market and potentially the business case for further investment in broadcasting”.57

25. However, Magnus Brooke, Group Director of Strategy, Policy and Regulation at ITV, told us that ITV’s “rationale” as a PSB was to secure large audiences for PSB content and so the broadcaster would have to serve linear and on-demand audiences “equally over time”:

We anticipate that there may be 50:50 viewing in the UK television market as a whole—around 50% of viewing will be on demand and 50% linear—by about the mid-2030s. So for us to be able to afford to pay for the content, we are going to have to, as it were, advertise to an audience on linear, because there is a very significant audience there. But there is a very significant growing audience in on-demand. So for us, the idea that we just put content in one place or the other doesn’t make any commercial sense.58

Likewise, Khalid Hayat, Director of Strategy and Consumer Insight at Channel 4, told us that it was committed to its main linear channel:

[Broadcasters] are all committed to and want linear terrestrial digital broadcasting to continue well into the 2030s, so that is absolutely core to what we are doing.59

26. The Minister emphasised that Ofcom retained the ability to recommend quotas for linear broadcasting if needed:

If genres that previously we have regarded as important enough to require specific quotas are not being supplied or are being supplied in a way that makes it almost impossible for most people to find them, it could well be that Ofcom would make that recommendation, but it would be ultimately for the Secretary of State to amend the regulations on that recommendation.60

27. Allowing Public Service Broadcasters to use a wider range of services to contribute towards their remit, including on-demand, should not come at the expense of linear broadcast audiences. It is imperative that broadcasters make their content as accessible as possible to all audiences, regardless of whether viewers have the means or desire to switch to on-demand services. We urge Ofcom to hold Public Service Broadcasters to the highest standards and capitalise on its role as regulator of both the broadcasting and broadband industries. We recommend that Ofcom uses its monitoring of home internet access to inform its assessments of the accessibility of public service content on broadcasters’ linear channels.

BBC broadcasting changes

28. Our concerns about the impact the Media Bill could have on audiences are part of a wider context of change in the broadcasting industry. As part of its Digital First strategy, in December 2022 the BBC closed its regional TV news programmes for Cambridge and Oxford, replacing them with programmes broadcast from Southampton and Norwich respectively.61 It also decided that its local radio stations would share more content and broadcast less programming unique to their areas.62 Ofcom’s Broadcasting and Online Content Group Director Kevin Bakhurst wrote to the BBC, questioning how the programmes will remain relevant to audiences if programmes were shared between areas as wide as Norfolk and Dorset.63 On her final show in September 2023, BBC Radio Norfolk presenter Sophie Little described the policy as “ableist, ageist, and they place economic barriers for some people too”:

These cuts are unbelievably unfair to those who need local public service broadcasting the most. Those who are lonely and isolated, or those who are unable to leave their house, or unable to use the internet, or unable to pay for broadband. Those who not only take comfort from the company of a familiar voice coming out of their radio, but who truly rely on it to keep going.64

The comments were removed from the broadcast when it was subsequently made available on the BBC’s digital audio platform, BBC Sounds.65 A BBC spokesperson said that the programme was edited because it didn’t include a right of reply which they said contravened guidelines.66

29. BBC Director General Tim Davie told us in June that the BBC had adjusted its radio plans in response to audience and industry concerns but highlighted the budgetary pressures the BBC was under and changing audience behaviour:

You cannot avoid the fact that the BBC has had 33% of income taken over the last decade and we have had to absorb inflation for the last two years. [ … ] Local radio is precious. The connection with people who often aren’t digitally connected, all of that, is absolutely critical to the BBC. There is a but, which is that it does have a big audience but it is 13% of the population, so an incredibly precious 5 million people, but it is 13% of the population. The linear local market has been declining about 20% over the last few years. In total, it is down about 20%. With that in mind and the fact that audience behaviour is changing rapidly, you don’t have to be a digital evangelist to look at the numbers and say that most 65 to 75 year-olds are getting their news online now.

In that context, we believe that reallocating about 10% of our budget—the vast majority of the budget remains in linear broadcast, by the way, and there is not a media organisation in the world that is not going through this transformation. We believe that upweighting the online offer is critical for local democracy.67

30. Our conclusions about the impact the Media Bill could have on audiences are part of a wider context of change in the broadcasting industry. We continue to be concerned about the impact of the BBC’s Digital First strategy on linear TV and radio audiences. Sharing content across large areas risks undermining the sense of localness that has, until now, made BBC local radio distinct. We are similarly concerned that the direction of travel in linear TV provision could also diminish coverage for local audiences. While we recognise that the latest license fee settlement is difficult for the BBC, its changes to local radio and local TV provision are evidence that the drive to prioritise digital strategies can often come at the expense of local audiences.

Thirty-day requirement

31. The Bill only allows PSBs to use on-demand content to fulfil their remit if that content is available for at least 30 days.68 The Government states that it chose 30 days as “it is consistent with both audience expectations and existing industry practice”.69 However, various PSBs raised issues with this requirement. Magnus Brooke, Group Director of Strategy, Policy and Regulation at ITV, told us that, in the case of some sports, ITV “simply do not have the right to keep it up for as long as 30 days, but we would love to keep it up for as long as possible”.70 S4C pointed out that its news programmes are provided by BBC Cymru but are only available for 24 hours.71 Clare Sumner CBE, Director of Policy at the BBC, described news, sports and music rights as “quite complicated” and told us that she did not understand what problem the Government was trying to solve:72

Until fairly recently we could offer coverage for only 30 days, which drove the audiences mad because you wanted to start “Happy Valley” at the beginning and you were starting at episode 4 and that was not popular. I want to be exempt from this clause because I don’t think it is particularly helpful and all of our content is public service content anyway, which is a different model to some of the others, but even for the other PSBs, I can’t see what this is getting at.73

32. We agree that there should be a minimum length of time for which material has to be available on-demand so that people can watch it at a convenient time. However, Public Service Broadcasters raise legitimate concerns about whether 30 days is appropriate for every type of content, as broadcast and on-demand rights in areas such as sports, news or music can be significantly shorter. We recommend that the Bill be amended to allow the Secretary of State to vary the 30-day on-demand requirement for particular types of content, following consultation with Ofcom and other appropriate stakeholders.

Enforcement of public service remits

33. Under the Communications Act 2003, Ofcom has enforcement powers if it considers that a Public Service Broadcaster has failed to fulfil its contribution to the public service remit, as long as it considers that the failure is “serious and is not excused by economic or market conditions”.74 This power is unchanged by the Media Bill, but Ofcom believes that the increased flexibility of the proposed new remit should be accompanied by “appropriate `step in’ powers” so that it can intervene earlier.75 Kate Biggs, Director of Content Policy at Ofcom, described the current threshold as a “reasonably high bar”:76

It is probably one where we are keen to hear Government and Parliament’s views on whether that is set at the right level for our ability to intervene.77

34. The increased flexibility of the public service remit should be accompanied by a lower threshold for Ofcom to intervene if it considers that a Public Service Broadcaster is failing to meet its remit. The current bar of “serious” is too high. Enabling Ofcom to step in earlier would protect the regime and increase public confidence that the flexibility of the new remit will not be accompanied by a decline in standards. We recommend that the Bill should lower the threshold at which Ofcom can intervene to protect the public service broadcast regime, enabling it to step in before concerns about whether a Public Service Broadcaster is meeting its remit have already become serious.

2 Listed Events

35. The listed events regime ensures that the public can watch certain events of national importance, such as the FA Cup Final and the Wimbledon Championships, at no additional cost.78 Subscription-based broadcasters are not permitted to show exclusive live coverage unless the rights have also been made available to qualifying services—defined as free-to-air broadcasters that reach 95% of the population—on fair and reasonable terms and Ofcom has agreed.79 As we highlighted in our 2022 report, Major cultural and sporting events, the regime is critical to the UK’s sporting and media landscape: it amplifies major events and enables the country to capitalise on its investment in these events and their competitors.80 The Department itself considers that the regime has supported the sustainability of public service broadcasting.81 However, while in practice the requirement to reach 95% of the population limits those who can apply to Public Service Broadcasters (PSBs), the Government fears that changing viewing habits could result in PSBs themselves failing to meet the qualifying criteria.82 It has now decided, in view of the “key role” that PSBs play in distributing content which is both distinctively British and of interest to British audiences”,83 to use the Media Bill to limit the broadcasting of listed events to PSBs and remove the 95% requirement.84

Restriction to Public Service Broadcasters

36. The restriction to PSBs would benefit S4C, which could not reach 95% of the UK population, but prevent broadcasters such as Sky bidding even if they were able to meet that reach. S4C welcomed the change and argued that such events were “a crucial means of introducing S4C’s services and the Welsh language to much wider audiences”.85 Mitchell Simmons, Vice President of Public Policy and Government Affairs EMEA at Channel 5’s owners Paramount, considered that the change was “the right way forward”.86

37. However, COBA, the organisation representing commercial broadcasters and on-demand services, described the policy as “misguided”:

This change restricts potential competition and audience choice. In so doing, it undermines competitiveness and the UK’s ability to attract inward investment. It also does not help future proof the development of the industry–although today only the PSBs meet the 95% access requirements, longer term this may not be the case and there may be new and innovative services developed in the future which UK audiences would prefer to use for these events. The decision to only provide the benefit to PSBs could disincentivize new services and restrict user choice and experience.87

In 2021, Amazon agreed a simulcast deal with Channel 4 to show the US Open final with Emma Raducanu free-to-air. Anna Hatfield, Amazon’s Public Policy Manager, argued that this was an example of why the focus should be on “the customer experience and making sure that it is free to air, rather than who delivers that content”.88

38. Alistair Law, Director of Policy at Sky, said that restricting listed events to PSBs would give PSBs a competitive advantage.89 He told us that Sky had worked with PSBs to show “moments of national significance” free-to-air, such as the Cricket World Cup in 2019, and had put the Scotland v Serbia game in 2020, which qualified them for the Euros, on its free-to-air channel, Pick TV. It secured 63% of the viewing that evening in Scotland.90 Warner Bros Discovery argued that commercial operators could provide such content for free and so restricting listed events to PSBs “would not appear to be consistent with the overarching objective of the regime”:

If, effectively, only public service broadcasters are able to bid for rights (because of the rights that in essence are reserved to them) this will reduce competition for rights. This could lead to a sports rights holder refusing to license the relevant rights with the effect that UK viewers miss out entirely. It would, of course, harm investment in the relevant sport too.91

39. However, the Minister told us that even if companies like Amazon and Sky were prepared to show events free-to-air, it did not mean that everyone could access them. He argued that the listed events were a limited list of major events which “we think it is sensible to restrict to the PSBs”.92

Streaming loophole

40. We heard that the Bill does not address a loophole that allows an unregulated TV streaming service to buy the rights for a listed event and put them behind a paywall. This is because the Bill does not capture “pure” streaming services with no connected on-demand service. In the 2022 White Paper Up Next, the Government committed to bringing such unregulated streaming services, currently available on Electronic Programme Guides (EPGs), under Ofcom regulation.93

41. Magnus Brooke, Group Director of Strategy, Policy and Regulation at ITV, said that the Government needed to ensure that the Bill closed the loophole:94

In principle, you could buy the rights to a listed event and then charge people to access it. We do not think that loophole has been closed entirely by the Media Bill. In fact, it has not been closed, nor will it be closed entirely by the extension of the regulation of EPGs, because quite a few of the streaming services are not on EPGs. That, in particular, is a really important loophole in the existing regime that needs to be closed, because that is about live rights. The Government have gone a bit of the way, but not quite as far as they need to go to close that.95

The BBC described the fact that the Bill does not close the loophole as a “missed opportunity to introduce clarity and certainty to the regime”. It was not convinced that the Government’s plan to incorporate streaming services into EPGs would fully address the issue:

For example, how would it capture pop-up channels streaming particular matches, or streaming via apps? “EPGs” have a precise legal definition and this approach might lead to further loopholes.96

42. We welcome the draft Bill limiting the Listed Events regime to Public Service Broadcasters. These events are important sporting occasions with immense cultural and social impact and the regime is critical to the UK’s sporting and media landscape. However, it is unfortunate that the Government has not taken the opportunity to use the legislation to close the loophole that allows an unregulated streaming service to buy the rights for a listed event and put them behind a paywall. We recommend that the Government amend the Media Bill to close the loophole allowing an unregulated streaming service to buy the rights for a listed event and put them behind a paywall.

Digital rights

43. The Listed Events regime does not cover on-demand and other digital rights as so few people had access to the internet when the original legislation was passed in 1996.97 As DCMS itself has noted, this means that if the Olympic 100 metre final was broadcast live in the middle of the night on the BBC, but all streaming and catch-up rights were sold to a different broadcaster and kept behind a paywall, then a culturally relevant event might not be available to a wide audience on a free-to-air basis.98 We called for the Government to review extending the regime to include such rights in our 2022 report Major Sporting and Cultural Events99 and in November 2022 the Government launched a consultation in response.100 It has not yet announced its conclusions and so digital rights are not covered in the draft Media Bill. The Minister said in June that the Government would announce the conclusions of its digital rights review “in due course”.101

44. Channel 4 argued that “if the rationale for ensuring that events of national importance are available free to air still stands, then the regime should be extended to reflect the way people now view content”:

If the regime for listed events isn’t fully modernised and brought up to date with digital developments, British audiences could see more of their cherished sporting events hidden behind paywalls.102

The BBC reported that the 2020 Tokyo Olympics gold medal-winning performance by BMX specialist Charlotte Worthington was watched by just 0.4m people on TV, due to it taking place overnight. However, in the following days, short-form coverage generated an eight-fold increase in engagement, totalling c3.4 million clip views:

If the BBC did not have access to such digital, on-demand rights (which is likely in future without regulatory protection), availability and reach of national moments such as these would very likely be restricted, contrary to the objectives of the listed events regime.103

The BBC argued that, if the Government does not conclude its review in time for the legislation to be passed, the Bill should be amended to include an enabling provision to allow digital rights to be added later.104

45. Magnus Brooke, Group Director of Strategy, Policy and Regulation at ITV told us that a company could show clips almost immediately after broadcast, and every single clip if it wished, making it “quite close” to live coverage:

The risk of that is, first, it undermines the value for the PSBs in listed events. Secondly, it fragments the audience. Potentially you get categories of the audience—younger people, potentially—choosing to watch on a social media service run by YouTube or Facebook rather than watching a PSB. We offer all these things currently via our own services, and it would be a pity to split up that audience to allow those rights to go to other people. Gradually, the PSBs would find themselves in a bit of an old world of simply live streaming, rather than bringing the whole audience together with the whole event and being able to create a national buzz around what we do, which is what we do at the moment.105

46. However, Alistair Law, Director of Policy at Sky, told us that it was “not a given that the PSBs have unparalleled reach in the digital space”:

In fact, it is often quite the opposite. If you think about something like being able to tweet out clips or make highlights available on YouTube, Sky Sports has huge numbers of subscribers who follow us on Twitter or YouTube, many times more than BBC Sport or ITV Sport. If your objective is to ensure that this is viewed by as many people as possible, I think you are restricting yourself by making that a PSB-only benefit.106

47. Digital rights should be included as part of the Listed Events regime to reflect sweeping changes in how audiences consume content since the original legislation was passed. We recommend that the Government includes provisions in the Bill to enable digital rights to be included in the Listed Events regime without the need for further primary legislation.

3 Prominence on TV selection services

48. A major driver behind the Bill is to ensure that the public can easily access public service broadcast content on devices such as smart TVs, set-top boxes and streaming sticks. Under current legislation, Public Service Broadcasters (PSBs) are given prominence on Electronic Programme Guides (EPGs), guaranteeing them the top slots.107 However, as this legislation was passed 20 years ago, it does not extend to PSBs’ on-demand or livestreamed programme services, nor any services that enable viewers to navigate and select TV programmes beyond the EPG, such as through the User Interfaces (UIs) on smart TVs.108 Part 2 of the Bill aims to address this issue and ensure that public service broadcast content is always carried and easy to find for UK audiences.109

Box 1: Viewer navigation

Electronic Programme Guides

Electronic Programme Guides (EPGs) are on-screen menus listing which TV channels are available and what their individual programme schedules are. These enable viewers to choose a programme of their choice using their remote control. EPG providers must ensure that the first five slots on its guides are PSBs. BBC1 must be in the first slot, BBC2 the second, Channel 3 (ITV or STV) the third, Channel 4 the fourth (except in Wales, where it is S4C) and Channel 5 the fifth.

User interfaces

User Interfaces (UIs) enable viewers to navigate the content on smart TVs, set-top boxes and streaming sticks. Unlike EPGs, however, providers can choose how they design their UIs and are not required to give PSBs prominence.

Many divide their UIs into “rails”. For example, one rail could provide fast access to recently used apps and another to different genres of content. Some may include “hero tiles”, a visual image of a particular programme. If a viewer clicks on this tile, it will take them directly to that programme. Some manufacturers' remote controls include shortcuts so that viewers can directly access on-demand services. Some recommend content based on past viewing and allow viewers to customise the UI to rearrange or remove apps entirely. Search functions are also becoming increasingly sophisticated, including predictive text search, voice search and listing further recommendations based on these searches.

Platforms

TV platforms are services used to access TV content on smart TVs and other connected devices such as streaming sticks and set-top boxes. Examples would include LG’s smart TVs, Amazon’s Fire Sticks and Sky Q’s set-top boxes. However, the word can also refer to those who provide content, including on-demand streaming services such as Netflix, Public Service Broadcasters’ on-demand services such as BBC iPlayer and ITVX, social media sites such as Facebook and Instagram and video-sharing sites such as Youtube and TikTok.

Devices in scope

49. Only those devices which are primarily used to access television selection services, such as smart TVs and set-up boxes, are intended to be in scope, rather than other devices, such as mobile phones, where delivery of TV is not necessarily the core function of the device.110 In addition, only those platforms which are used by a significant number of members of the public in the UK will be regulated.111 A PSB would only qualify for prominence on these platforms if it promoted its public service remit content and ensured the content was “readily discoverable”.112 This is designed to prevent a PSB benefiting from prominence on a selection service, but then on its own home page only promoting its most commercial content.

50. The existing legislation guaranteeing PSBs prominence on EPGs states that they are entitled to “such degree of prominence as Ofcom consider appropriate”.113 The draft Media Bill uses similar wording, requiring selection services to give “an appropriate degree of prominence” to the PSBs.114 However, we heard a considerable difference of opinion over whether the use of “appropriate” was suitable in an on-demand context.

51. Elin Morris, Chief Operating Officer at S4C, argued that the extent of the different ways people could access on-demand content meant that the wording should be changed from “appropriate” to “significant”:

It is not just a set of channels. There will be tiles, search functions and different ways of opening your screen. We feel the stronger the wording in the Bill, the clearer the mandate is for the platforms to follow and make sure that PSBs get a high degree of prominence.115

Channel 4 told us that “the ambiguity of `appropriate’ leaves a risk that [Public Service Media] could be minimised or lost on complex TV platform user interfaces which offer consumers a huge array of options”.116 Clare Sumner, Director of Policy at the BBC, also wanted to see the wording changed. She told us that, for example, All 4 appeared on the second page of Amazon Fire, while BBC children’s channels were “lower than we would have liked to see them”:

The natural thing that competitive markets do is to sometimes self-preference their own products. We can’t take anything for granted and “appropriate” is often a muddy term that can be used to people’s advantage either way [ … ] It is a minor change, but we need to be as tough as possible because we don’t know about the competitors.117

52. However, ITV was not convinced that there was a need to change the language, “since significant prominence could be appropriate and appropriate prominence could be significant”.118 Alistair Law, Director of Policy at Sky, was concerned that “significant” could override audience preferences:119

If you imagine somebody using a Sky remote to search for “Brassic”, one of our comedies set in the north-west of England, it would be disproportionate for the first search results returned to be non-“Brassic” programmes from the public service broadcasters and then the result of “Brassic” only coming fifth, sixth, seventh down the line. That is our concern about the idea of significant. It can override audience preferences when the word “appropriate” has been shown to be able to deliver huge levels of prominence for the PSBs.120

Likewise, COBA, the organisation representing commercial broadcasters and on-demand services, saw no need to change the wording, arguing that it was “well understood as a term in this regard, and gives the regulator due power and flexibility. `Significant’ risks tying the regulator’s hands”.121

53. User interfaces on connected devices are very different to Electronic Programming Guides. The breadth of ways in which user interfaces can be designed means that what prominence looks like will vary considerably from device to device. What matters is ensuring that public service content is always carried and easy to find. We consider that changing the descriptor from “appropriate” to “significant” would be less open to interpretation and better meet the aims of the Bill. We recommend that the descriptor for prominence is changed from “appropriate” to “significant”.

Legacy devices

54. Both PSBs and platforms were concerned about how legacy devices—those devices which contain software which has been superseded by later models—would be treated. They argued that continuing to regulate such devices could create issues for the PSBs, obliged to offer their services, and selection services, obliged to carry them.

55. Magnus Brooke, Group Director of Strategy, Policy and Regulation at ITV told us that, in the light of the broadcaster’s “bitter first-hand experience” of launching ITVX last year, the Bill needed to be clearer regarding how legacy devices should be treated. He said ITV had found it “literally technically impossible to put ITVX on some of those legacy or older platforms”:

It was either literally impossible technically or economically entirely unfeasible to do it, partly because the software simply could not support the sophistication of the service that we were offering.122

Likewise, Mitchell Simmons, Vice President of Public Policy and Government Affairs EMEA at Channel 5’s owners Paramount, argued that potentially both a PSB and a platform could be struggling to provide the technological requirements needed to carry the PSB on the platform, but there was not the flexibility in the Bill to address this. He told us that “we need to have that flexibility and Ofcom needs to be able to make the judgments, because it does feel like there may be some consensus in the industry”.123 However, to avoid platforms trying to avoid regulation by releasing new devices each year, he told us that Ofcom should judge “which specific devices still have suitable proliferation among viewers, and also that we as PSBs are able to reach the correct technological hurdles to make our products available to them”.124

56. Alistair Law, Director of Policy at Sky, told us that it was “in nobody’s interests” if the Bill applied to legacy platforms.125 Likewise, Lewis Walmesley-Browne, Head of programme, Market Access and Consumer Tech at techUK, told us that neither side wanted to be “legally required to go in and re-engineer older products”:

Sometimes the company that manufactured that product is not around anymore. It would not be contentious to include provisions to carve out those older devices. If there was a need for Ofcom to have a view on what was appropriate to keep in and take out, that would be appropriate.126

57. It is in the interests of both Public Service Broadcasters and platforms that the Media Bill enables legacy devices to be exempted from requirements, given the technical hurdles involved. However, it is important that any exemption is not exploited. Allowing Ofcom to exempt certain previously designated devices on legacy grounds would address the overall issue, providing that it considers the extent to which such devices are still used by the public. We recommend that the Bill should allow Ofcom to de-designate legacy devices so that they are no longer subject to the provisions on prominence.

Designation powers

58. Only those platforms which are used by a significant number of members of the public in the UK will be regulated: in the legislation these are known as “regulated television selection services”.127 The Bill gives the Secretary of State the power to designate which ones these will be or else specify a description of what a “regulated television selection service” means.128 The Secretary of State must receive a report from Ofcom before issuing regulations under this power.129 If these regulations differ materially from Ofcom’s recommendations, then the Minister must publish their reasons no later than the time at which the regulations are made.130

59. These regulations are subject to the negative procedure, which means that they come into law once signed by the Minister and will remain law unless either House rejects them within 40 sitting days. When we queried this with the Department it told us that, as the Secretary of State cannot use these powers until they have received advice from Ofcom, the regulator would ensure the regulations were proportionate.131

60. Only those television selection services which are deemed to be used by a significant number of viewers in the UK to access TV content online will be regulated. While the Secretary of State may only designate these services or specify a description of them following a report from Ofcom, the fact that the Minister can decide against Ofcom’s recommendations means that their decision should be open to greater Parliamentary scrutiny. We recommend that the affirmative procedure should be used when the Secretary of State designates or specifies a description of regulated television selection services.

Must-offer must-carry agreement objectives

61. At present, Public Service Broadcasters (PSBs) negotiate individually with platforms to distribute their players (such as ITVX or My5). If negotiations fail, this can jeopardise the availability of that PSB’s player on the relevant platform until a commercial resolution is reached, which Ofcom reports has occurred on several occasions in recent years.132 However, the Bill will make such voluntary agreements a statutory duty: PSBs will be obliged to offer their content (“must offer”) and platforms will be obliged to carry (“must carry”) the PSBs.133 The Bill sets three “agreement objectives” which both sides should use to negotiate their contracts134 and creates a regulatory backstop to ensure Ofcom can step in if negotiations break down.135

62. The second of these agreement objectives states that arrangements made between the PSB and the selection service must be:

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.136

The Minister told us that the aim was to encourage the platforms and the broadcasters to “reach a commercially satisfactory deal”137 and ensure that the outcome was fair.138 However, witnesses from both PSBs and platforms told us that the drafting of the objective was too ambiguous. PSBs are concerned that a platform could make significant commercial demands from a PSB, which will have no option but to offer their player. Meanwhile, platforms fear that PSBs could similarly exploit the arrangement as they will have to carry them.

63. Virgin Media O2 said that the objective could be interpreted in two ways: either it prevented a platform from imposing high charges on PSBs to carry their services or it required a platform to subsidise the cost of public service content. It argued that:

[The latter] would constitute an additional value transfer above the benefit derived through prominence, with no commensurate benefit for the [platform] or increased obligation on PSBs. As a result, it would enshrine an asymmetry of power that would heavily distort commercial negotiations between the two parties.139

Furthermore, techUK argued that there should be “no ambiguity in the language that could lead to a presumption of payment to PSBs for content that is freely available via other means”.140 The TV and streaming service Netgem reported that it had been unable to conclude discussions with PSBs to include their channels on its platform, which meant that those of Netgem’s users without an aerial socket could only access PSBs by switching to a different platform.141 Anna Hatfield, Public Policy Manager at Amazon, wanted Ofcom to consult on specific criteria that one or more parties needed to have met before they could refer a case to the regulator, as “that will help ensure that Ofcom is focused on the right cases”.142

64. However, Magnus Brooke, Group Director of Strategy, Policy and Regulation at ITV, told us that, other than covering PSB costs, the current drafting was “winner-takes-all for the platform”.143 He argued that, as a business, it was not enough for ITV to get its costs back, it had to make a profit.144 He feared that platforms would enforce global terms such as requiring ITV to give away at least 30% of its revenue:

They will effectively require us to go into their advertising system, so we will not necessarily have a relationship with advertisers, we will not be able to innovate in terms of our ad tech, and we will not necessarily have access to any data. That is the threat that is coming, and I would not want to understate this: that is an existential threat to PSB. There is no other way of putting it.145

He told us that there was a “win-win” scenario where both sides benefited:

We definitely have those sorts of relationships with Sky and Virgin now. That is what we want to replicate. In our relationship with them, we sell our advertising; we have our relationships with our advertisers. We can innovate in how we offer things like Planet V, which is our programmatic advertising platform, and we can use data to help target our advertising on ITVX more effectively within those partnerships. That is what we are looking to do.146

65. Alistair Law, Director of Policy at Sky, told us that Sky had negotiated “very successfully” with PSBs for over a decade:147

They are the most important and critical partners that we have, and we strike these mutually beneficial deals. Whenever you bring regulation into an area that had previously just been covered by commercial negotiations, the risk is that you create a series of perverse incentives. We seek to ensure on both sides that those incentives are lowered so that there is that freedom to negotiate commercially, because we have delivered fantastic deals for customers, and Ofcom are not called upon for every single negotiation.148

66. We also heard criticism of the fact that the objective focuses on costs alone. LG Electronics UK wanted PSBs to be obliged to provide all necessary programme metadata, which should conform to a single common standard specification.149 Channel 4 argued that the objective should also refer to other commercial and strategic issues such as access to data, advertising deals and brand attribution so that these factors could be fairly negotiated.150

67. Kate Biggs, Director of Content Policy at Ofcom, told us that Ofcom was aware that negotiations covered other factors besides costs, such as “metadata and wider factors around the functionality within a site”.151 However, she agreed that the agreement objective needed redrafting to “better express the intention, which is to ensure that terms are fair and mutually beneficial”.152 Robert Specterman-Green, Director, Media and Creative Industries at the Department for Culture, Media and Sport, told us that the Bill required Ofcom to publish guidance on how the agreement objectives would operate and must consult before doing so.153

68. The agreement objectives are fundamental to the must offer-must carry regime. Any ambiguity in their drafting is likely to lead to either or both broadcasters and platforms resorting far more frequently than anticipated to the dispute mechanism process. While Ofcom will be required to consult and publish guidance on how the agreement objectives will operate, it is essential that the legislation itself specifies clearly the principles that the guidance must deliver. However, the fact that successful deals already exist - such as that between ITV and Sky - suggests that agreeing mutually acceptable principles is possible. We recommend that the Government should examine the principles on which existing successful carriage deals have been negotiated and use this to improve the drafting of this provision in the legislation.

4 Reform of Public service broadcasters

69. Part 3 of the Bill focuses on two Public Service Broadcasters (PSBs), Channel 4 and S4C. While the Government abandoned plans for the privatisation of Channel 4, it wants the Channel 4 Corporation (C4C) to have greater commercial flexibility in order to support its long-term sustainability and growth.154 The Bill will enable the broadcaster to produce and monetise its own content and require its directors to consider the long-term sustainability of the channel when making decisions. The Bill also updates S4C’s public service remit and provides greater clarity on its ability to invest and generate commercial revenue.

Channel 4 Corporation

Sustainability duty

70. The Broadcasting Act 1990 requires C4C to “secure the continued provision” of the Channel.155 As it is a publicly owned not-for-profit corporation and has no shareholders,156 its directors are not bound by the Companies Act 2006 which imposes on directors a “duty to promote the success of the company”.157 However, Channel 4’s directors voluntarily comply with these statutory duties.158

71. The Bill gives C4C a new duty to consider the long-term sustainability of the Channel when making decisions:

The Corporation must carry on their activities in the way that they have reasonable grounds to consider would be most likely to enable the Corporation, over the long term -

(a) at least to sustain the level of their activities and

(b) to be securely in a position to meet costs incurred in carrying on their activities.159

72. The Department’s Impact Assessment said that the sustainability duty was intended to formalise what was already in place.160 The Minister told us that the Government felt that it was “sensible” that C4C’s directors should be statutorily required to take account of sustainability in their decision-making.161 Khalid Hayat, Director of Strategy and Consumer Insight at Channel 4, told us that they were “comfortable” with the sustainability duty but wanted to ensure it had no “unintended consequences” so called for it to be linked explicitly to the primary functions of Channel 4 and align with the Companies Act 2006:162

One area where we have expressed some concern is in the drafting language about the level of activities: “activities” is not clearly defined, and “level of activities” would appear to, or could, run the risk of limiting the ways we can evolve what we are doing in how we deliver the remit in the interests of viewers. [ … ] that is why we think that linking to primary functions would work better, because “primary functions” of C4C is more clearly defined in existing legislation.163

Directors UK argued that Channel 4 should be allowed to determine how it delivered its sustainability duty and for the legislation not to be “overly prescriptive”:

The requirement to report on how it is meeting this obligation should provide opportunity to monitor the approach and its effectiveness and should be kept under review.164

73. The sustainability duty reinforces what the Channel 4 Corporation is already doing. As such, the wording should reflect their primary functions and existing statutory duties to avoid there being any unintended consequences such as a conflict with their existing obligations. We recommend that the Government should review the wording of the sustainability duty to ensure that it is compatible with the Channel 4 Corporation’s existing obligations.

Removal of the publisher-broadcaster restriction

74. The majority of Channel 4’s revenues come from linear TV advertising, though the proportion has declined: C4C reports that, by the close of 2022, linear TV advertising accounted for 68% of its total revenues, down from 78% in 2020.165 Given the continued decline in linear broadcast viewing, the Government argues that Channel 4 needs to generate more income beyond advertising alone. Accordingly, the Bill166 removes C4C’s publisher-broadcaster model, which prevents it from producing and commercialising its own content without permission from Ofcom.167

75. The removal of this model has generated concern about its potential impact on the production sector. In line with other Public Service Broadcasters (PSBs), currently Channel 4 must commission at least 25% of its programming from independent production companies: in 2022, it commissioned 55%.168 The Government has committed to raising the channel’s quota and work with the industry to consider additional protections to “safeguard Channel 4’s important role supporting the production sector”.169

76. We received a range of submissions expressing concern about the policy. Directors UK, the professional association of UK screen directors, was concerned that it would “distort or negatively impact the market in which our members are employed, or negatively impact the commercial value and return on the [intellectual property] in the works they create”. It wanted to see Channel 4’s independent production quota obligations either increased or caps placed on in-house commissioning, as well as a clear separation between Channel 4’s in-house production operation and Channel 4 itself, to ensure that there was fair competition for commissions.170

77. Pact, the UK trade association representing independent feature film, television, digital, children’s and animation media companies, wanted the legislation to avoid setting “adverse impacts on competition”. It argued that Ofcom should be able to specify C4C’s licence requirements to secure “fair and effective competition” in the commissioning of programmes.171 Teledwyr Annibynnol Cymru, which represents the independent television production sector in Wales, feared that removing the publisher-broadcaster model could reduce opportunities for new entrants to the market and have “a direct impact on the vibrancy and competitive nature of the sector which makes it so strong and successful”. It wanted the Bill to require Channel 4 to commission a “significant” amount of its content externally, which it argued would provide “an element of future-proofing to any change in Channel 4’s commissioning strategy and prevent any large change from taking place, which could have a destabilising effect within the sector”.

78. Other submissions also wanted the Bill to be more specific. The streaming platform Nile wanted the Bill to state Channel 4’s maximum quota and argued that it should be between 10–15%.172 Together TV argued that Ofcom, rather than the Secretary of State, should set and change the level of in-house production permitted and only with prior public consultation:

At the very least, it should be explicit that the Secretary of State must have due regard to the impact on the production sector of changes. This would help guarantee Channel 4’s independence from Government, as well as mitigate the impact on the external supply sector.173

79. Khalid Hayat, Channel 4’s Director of Strategy and Consumer Insight, told us that the channel had not asked for the publisher-broadcaster model to be removed.174 He said that C4C shared the Government’s objective, “in that while there is benefit to Channel 4 in greater flexibility from this change, it needs to be managed in a way that is consistent with an independent production sector that continues to flourish”.175 But he argued that, if the Government wanted Channel 4 to make money from having commercial freedom, “the more onerous the additional restrictions that are placed on it in the event of that change, the harder it will be to develop a commercially sustainable business case”.176

80. The Minister told us that he was concerned about Channel 4’s future sustainability177 and that Channel 4 was under more threat now that it ever had been:178

That is a reflection of the difficult climate it now operates in. The advertising market has dropped considerably and that impacts on Channel 4, particularly because Channel 4 is totally dependent on the revenue from advertising. Channel 4 will tell you that it is only a small number of productions and that it remains confident, but it would not conceal the fact that it is operating in a challenging climate at the moment.179

He acknowledged that the removal of the publisher-broadcaster restriction was “not a silver bullet” and said that it would be up to Channel 4 whether to take advantage of it.180 Robert Specterman-Green, Director, Media and Creative Industries at the Department for Culture, Media and Sport, told us that the Department had been engaging with all interested parties “to try to strike the right balance”:

It is also worth pointing out of course that many of the independent production companies with whom Channel 4 works have grown to be very big, which is a reflection of the success of the model, but we have to take that into account when calibrating this. It is not our intention to introduce excessively negative distortions. We try to strike an appropriate balance here, given the multiple objectives that we are targeting.181

81. The Department acknowledged in its impact assessment that there could be costs to producers who may lose commissions should C4C make some programmes in-house, however, it provided no further details of what this impact could be.182 The independent Regulatory Policy Committee, which assesses the quality of the Government’s evidence and analysis for regulatory decisions, recommended that the Department should consider the potential impact of a change in programming direction should that occur.183

82. It is hard to quantify the full impact of the removal of Channel 4’s publisher-broadcaster model in the absence of an impact assessment, but the removal is a fundamental change to its status. Allowing Channel 4 to produce and monetise its own content will help diversify its revenue streams but could have significant implications for the independent production sector and the wider production ecology outside of the South East. We recommend that, on introduction of the Bill, the Government should publish a policy statement setting out its intended monitoring and mitigations for any harm to the wider production sector from the changes to Channel 4’s model.

S4C

83. S4C is the Welsh language Public Service Broadcaster and broadcasts across a range of platforms. Following an independent review of S4C in 2018, the Government committed to implementing a range of changes to support the channel in adapting to rapid technological and market developments.184 Accordingly, the Bill puts these changes on a statutory footing and updates S4C’s public service remit. The legislation enables S4C to provide a digital service and services outside Wales and agree an alternative arrangement with the BBC on its support for the broadcaster. It also provides greater clarity on its ability to invest and generate commercial revenue.185

84. S4C will benefit from the prominence provisions in the Bill, as the legislation allows for regional variation between the degree of prominence provided: the Scottish PSB, STV, will also benefit accordingly.186 However, the Bill’s provisions regarding regional variation have caused concern in the tech industry. techUK argued that technical and privacy challenges can limit a service’s ability to know the exact geographical location of their customer and therefore this provision “risks creating a disproportionate legal requirement that some services cannot reasonably be expected to comply with in all circumstances”.187 Lewis Walmesley-Browne, Head of Programme, Market Access and Consumer Tech at techUK, told us that it had proposed to the Department that the user “should be able to input their location or select their configuration preferences”.188

85. However, S4C argued that allowing user selection to replace guaranteed regional prominence “risks undermining both the policy intent underpinning this Bill and a key component of the PSB compact”:

Whether smart TV hardware is bought from a shop in Wales or elsewhere is irrelevant; it is the way the operating systems connect platforms and content with users that matters when it comes to online prominence. We presume that TV platforms already actively collect user data to some extent in order to target content offerings and advertisements and that the means of collecting user location data already exists.189

S4C argued that platforms should offer a default UK-wide prominence for S4C until they are able to configure the delivery of regional prominence.190

86. The Department’s impact assessment acknowledges that there will be additional technical costs to platforms as a result of having to provide regional PSBs with prominence, but stated that, “in the context of the revenues of the large multi-national organisations operating TV platforms, these are not significant”.191 It argued that guaranteeing prominence for regional PSBs would deliver significant economic and social benefits:

In guaranteeing the prominence of regional PSBs’ services, which are not universally prominent on TV platforms, the legislation creates significant benefits to these organisations and to wider society. For STV, a commercial regional broadcaster, this will lead to significant increases in revenue as a result of increased viewership. For S4C, the Welsh language broadcaster, prominence via TV platforms would enable them to reach a greater number and more diverse set of audiences within Wales, with social benefits associated with increased engagement with the Welsh language in line with Welsh Government objectives (and a Manifesto Commitment).192

87. Giving regional prominence to both S4C and STV goes to the heart of what the Government is trying to achieve with this Bill: to ensure public service broadcasting is not only available on platforms but easy to find. Given the size of the revenues of those television selection services likely to be in scope of the legislation, we are not convinced that the technical issues raised by the industry are such that compliance on this issue would be a disproportionate or unreasonable requirement and so we support the inclusion of this provision in the Bill.

5 Video on-Demand services

88. The increasing number of viewers switching from linear television towards on-demand platforms calls into question a regulatory issue: purely Video-on-Demand (VoD) services such as Netflix are not subject to the Broadcasting Code. The Code sets standards that broadcasters must meet, such as protecting under-18s and protecting the public from harmful and/or offensive material.193 All broadcasters are covered, regardless of size or audience share. However, as VoD services are not broadcast on linear TV channels, they are not covered by the obligations. In its 2022 White Paper, the Government committed to introducing a new Video-on-Demand Code “to ensure TV-like content, no matter how audiences choose to watch it, will be subject to similar standards”.194 Part 4 of the Bill establishes this Code but only those VoD platforms with a large UK audience will be subject to it.195

Video-on-Demand Code

Tier 1 services

89. The Department has targeted the new Code at what it calls “the largest, most TV-like” services.196 These are termed “Tier 1” services and will comprise VoD services from Public Service Broadcasters (PSBs) and any other VoD services specified by the Secretary of State.197 The Minister can only make the first designations after Ofcom has reported on the operation of the on-demand market in the UK, including aspects such as audience figures, turnover and size of individual catalogues.198 The Secretary of State can make later designations without consulting Ofcom, though the Bill allows for them to commission further reports if they wish.199

90. Tier 1 providers will have a “grace period” of six months to ensure that their catalogues are compliant.200 They will then have to monitor new content on an ongoing basis. As a result, the Department acknowledges that the new Code could create substantial costs for VoD services. It estimates, on what it calls “incomplete data”, that the total one-off cost could reach c£13m-£16m for major on-demand services for which library size data is available.201 However, it argued that this cost might be “reduced substantially” by how Ofcom chooses to implement the Code, while most on-demand providers already have some systems in place which would reduce costs:

These costs remain small in the context of the larger streaming services’ revenues. The knock-on impacts in terms of lost content are likely to be minimal insofar as broadcasters and streaming services have indicated they are confident that the overwhelming majority of their content would be fully compliant with the future code.202

91. Some witnesses wanted the new Code to apply to all VoD providers rather than take a tiered approach. Colin Browne, chair of the Voice of the Listener and Viewer, argued that it would “be easier” to include all platforms as it was complicated to discern which were important ones and which were not:203

It is equally extremely difficult to define where a line should be drawn and it is much easier and much simpler from the point of the audience if all are covered in the same way.204

Anna Hatfield, Amazon’s Public Policy Manager, told us that applying the Code to all services would enable customers to have “a consistent experience”,205 while Benjamin King, Director of Public Policy UK and Ireland at Netflix, said that a tiered approach “risk(ed) perpetuating the confusion with audiences that greater harmonisation of the regulatory regime for broadcasting and on-demand was meant to resolve”.206 He told us that the new Code set “a new highwater mark for content standards globally”, requiring Netflix’s creative executives and production companies around the world to be familiar with it. He also highlighted the issues with ensuring Netflix’s existing catalogue complied with the Code:

Netflix has tens of thousands of hours of content in its catalogue today and that would need to be carefully reviewed by Ofcom-trained compliance viewers who could ensure that it was ready for the new regulatory regime. The impact would be non-trivial and that is without knowing the detail of what a new code would comprise.207

92. However, Roku supported a tiered approach and that the Bill should specify that only the largest and most widely-used VoD services would be designated:

This will ensure that the Media Bill achieves its goal of levelling the playing field between traditional media outlets and the largest [on-demand services], while at the same time avoiding placing potentially burdensome new regulations on smaller and nascent online video services that still are trying to gain a foothold in the marketplace.208

Alistair Law, Director of Policy at Sky, also wanted the criteria for Tier 1 to be on the face of the Bill:

That is the way that you get certainty. It could be done at a principles level, on the basis of just indicating it will be on a significant number of users, for example, but I think it is important that it is on the Bill so that people can begin to scope whether they are in or out of that regulation.209

93. We heard a difference of opinion regarding what impact the Code would have on competition. COBA, the organisation representing commercial broadcasters and on-demand services, was concerned that the Code may lead to “stifling new services or dampening competition by conferring an unfair advantage on some parties”.210 Benjamin King, Director of Public Policy UK and Ireland at Netflix, told us that the tiered approach could “create perverse incentives for smaller services to avoid a regulatory threshold”.211 However, Channel 4 argued that the Code would create “a level playing field” between UK providers and international streamers. It said that the Code should not deter new providers from entering the market, as only the larger VoD services would be designated and argued that advertisers’ confidence in major VoD services being “brand-safe environments” would help sustain the advertising revenue on which much of the sector depended.212

94. Ofcom told us that the Government’s tiered approach to the Code would not make the regulator’s job harder. Kate Davies, Public Policy Director at Ofcom, said that it was important to take a practical approach and she argued that a tiered approach enabled Ofcom to do that. She emphasised that the Bill has provisions for the Secretary of State to change that designation in the future.213 The Minister told us that the reason the Department had taken a tiered approach was because some VoD services were small and watched by few people:

I was concerned when we originally looked at this that it should not restrict freedom of speech. There are some niche services on which it would be disproportionate to impose the full requirements of the code, which was designed to apply to services with substantial audiences.214

95. The Government has said that it wants audiences to be confident that all content, however they consume it, is subject to the same regulation. Requiring only the largest Video-on-Demand providers to abide by the new Code does not achieve that aim. While the Government believes that it would be disproportionate and restrict freedom of speech if all platforms were designated, to not do so undermines the regulatory principle that the Government is seeking to deliver. We recommend that, in the same way that the Broadcasting Code applies to all broadcasters, the Video-on-Demand Code should apply to all Video-on-Demand services.

Content of the Code

96. The majority of the new Code’s objectives will align with those of the Broadcasting Code.215 Ofcom will be required to consult Tier 1 services, those that represent the interests of Tier 1 audiences and any other stakeholders that have an interest.216 Some of our submissions highlighted aspects that they would like to see included: Humanists UK wanted to extend the provisions preventing abusive treatment of religious views and beliefs to non-religious beliefs as well, as those holding such views could also be victims of hate crimes. It also wanted the term “abusive treatment” of views and beliefs clarified to ensure that it did not prevent fair criticism of beliefs.217 Additionally, the Samaritans welcomed the statutory requirement for Ofcom to consider “the degree of harm or offence likely to be caused by the inclusion of any particular sort of content”,218 but wanted the Code to cover how content is communicated, in order to “enable viewers [to] make informed decisions about the content that they consume and avoid content which they may find distressing or triggering”.219 The Antisemitism Policy Trust wanted a requirement added to provide educational resources so that potentially harmful or distressing content should not only be accompanied by warnings but also by information about where viewers could seek help if they had been affected by the content.220

97. We also heard concerns about the extent to which the Broadcasting Code was an appropriate basis for the VoD Code, given the differences in their services and audience behaviour. Anna Hatfield, Public Policy Manager at Amazon, told us that the Bill had “automatically transferred” the principles from the Broadcasting Code across to the VoD Code and wanted to see more debate as to whether the principles in the Broadcasting Code applied to the VoD context.221 Disney argued that it was “critical” that the Code reflected the differences between the linear and non-linear services:

Linear services push scheduled programming to consumers and therefore control what and when audiences watch the content. Non-linear services on the other hand, offer a library of content with subscribers choosing what programmes to watch and when. The library of content can be both recent and catalogue programming. Therefore, the Bill should make clear that the Code must adequately and appropriately address these fundamental differences.222

98. In particular, we heard concerns about how impartiality obligations would work. The new Code’s impartiality requirements mirror the current provision in place for broadcasters, except for the fact that they will not include an existing provision for broadcasters regarding the need to ensure due impartiality in relation to matters of political or industrial controversy, or matters relating to current public policy.223 This obligation for broadcasters is relevant in a linear context where broadcasters may be providing live coverage of rapidly developing, often unexpected major events, but the Department believes this is likely to have “little relevance” in the VoD context as such providers generally do not respond to live and rapidly developing events.224 Aside from this, the impartiality objectives are the same.

99. However, Netflix argued that the requirement to provide due impartiality did not “readily translate from a linear to a VoD environment” and it was not yet convinced that the Government had considered this point sufficiently:

This is a particularly important consideration given the absence of any clear harms to audiences that Government has been able to identify under the status quo, and the very real concomitant risk of a pre-emptive chilling effect on streamers’ appetite to make available their libraries of documentaries for UK viewers.225

Netflix’s Director of Public Policy UK and Ireland, Benjamin King, argued that the obligations required “much clearer definition, much clearer parameters as to their application, to be workable for a service such as ours”:

This is not only true for global streaming services. This is true to an extent for all on-demand services, even UK-based ones, because of the library element of their content and the potential need to re-comply titles on a rolling basis in response to changing political context.226

100. The Motion Picture Association wanted further clarity from Ministers and Ofcom, to provide industry with “greater confidence in making content investment decisions that are by their nature a long time in planning”.227 Likewise, Colin Browne, chair of the Voice of the Listener and Viewer, said that the Bill should more clearly define exactly which output should be subjected to impartiality rules rather than leave this to Ofcom’s discretion. He told us that that was “putting an unfair burden on Ofcom “.228

101. Some of our evidence highlighted that due impartiality could be particularly problematic during election periods. COBA, the organisation representing commercial broadcasters and on-demand services, said that it was “disproportionate” to require VoD services to ensure existing content met the new impartiality rules, particularly if having to remove archive content during election periods.229 Channel 4 wanted further clarification from Ofcom on what rules the Standards Code would be likely to set during elections and referendums:

We do not think that transposing the rules that currently apply to linear broadcasters under the Broadcasting Code to VoD services would be appropriate because doing so could lead to disproportionate complexity and costs. For example, if the VoD providers were required to temporarily remove any relevant archival content from their services during election periods–something that would be very expensive and operationally complex.230

However, Mitchell Simmons, Vice President of Public Policy and Government Affairs EMEA at Channel 5’s owners Paramount, was confident that Ofcom would successfully address this issue:

We would anticipate that Ofcom, as a well-versed regulator, would address those differences and find a way to ensure that audiences are sufficiently protected, that impartiality is suitably delivered and that during election periods the right processes are taking place without instigating significant business disruption. It is important that the regulator gets the balance correct, but we have a high degree of confidence that Ofcom will be able to deliver that.231

102. Kate Davies, Public Policy Director at Ofcom, told us that the regulator recognised that audiences engaged differently with content on VoD services compared to broadcast ones and so would approach the Code differently:

The things we want to look at are, for example, the way that audiences engage with that content, so you tend to select a specific bit of content—you don’t tend to stumble upon it as much. You tend to start at the beginning, which means there is an opportunity to warn audiences about the nature of that content. Also there is a wider range of audience protection measures available to video-on-demand services and indeed the Bill requires us to write a report on those measures. In thinking about how we establish a new code, we want to take all those sorts of things into account.232

103. We recognise concerns that there are elements of the Broadcasting Code which do not translate well to a Video-on-Demand context, particularly how the due impartiality obligations will be managed in a non-linear environment. However, Ofcom is required to consult Tier 1 organisations before finalising the Code and so we anticipate that stakeholders’ concerns can be addressed prior to implementation. We agree that there needs to be more clarification but consider that this is best left to Ofcom’s consultation and therefore do not propose any change to the Bill.

Fairness and privacy code

104. The Bill requires Ofcom to create a new code of guidance for Tier 1 services on the avoidance of unjust or unfair treatment and unwarranted infringement of privacy.233 However, Netflix was concerned that non-UK complainants as well as UK ones could use Ofcom to try to have material removed.234 Benjamin King, Director of Public Policy UK and Ireland at Netflix, highlighted that the global nature of its catalogue raised the question of whether Ofcom might become a “global policeman” and a target for “complaint tourism or forum shopping for foreign actors who want to use a regulator in the UK to seek redress for a particular title where they cannot successfully pursue that redress elsewhere”.235

105. However, Kate Davies, Public Policy Director at Ofcom, while agreeing that the Bill would allow people from outside the UK to complain to Ofcom, argued that it did not matter where the complaints were coming from:

If harm is happening or there is a risk of harm to a UK audience, we would want to know about it.236

106. As the fairness and privacy code will enable complaints coming from outside the UK, this could have significant resource implications for Ofcom. It is not possible to gauge in advance the likelihood of this happening, but should it become onerous then Ofcom would need to be resourced to meet this increased demand. We recommend that the Government should monitor the extent to which the fairness and privacy code is requiring Ofcom to manage complaints from abroad and resource it accordingly.

Delegated powers

107. The Bill allows the Secretary of State to specify which VoD services will be designated Tier 1.237 Ofcom must report before the first set of regulations, and may report before subsequent regulations, and the Secretary of State “must have regard” to its report.238 The Minister must also publish a list of the proposed Tier 1 services or a description of what services would be covered.239 The Department told us that this would ensure “maximum transparency for providers” and allow for “appropriate scrutiny” by Parliament.240 We asked the Department why there was no time restriction on the publication of the list before the issuing of regulations, given that the Government was relying on that publication for the purposes of “appropriate scrutiny” by Parliament. However, the Government did not address this issue in its response.

108. Regulations laid under this part of the Bill are subject to the negative procedure, which means that they become law when signed into legislation by the Minister and remain in law unless a motion to reject them is agreed by either House within 40 sitting days. The Department told us that this allowed “swift decision making to ensure audiences are protected quickly.”241 We asked the Department why it had adopted the above approach, to which it responded that it “would be disproportionate to follow the affirmative procedure for each single change made to the list”.242

109. The Government’s approach to the scrutiny of the Secretary of State’s power to designate Tier 1 services is confused. Putting information into the public domain at the same time as legislating is not a substitute for parliamentary scrutiny of increased regulation, especially where the Government has argued there are issues of freedom of speech involved. We recommend, should the Government proceed with its tiered approach, it should be required to lay before Parliament a list of services to be designated no fewer than 5 sitting days before the statutory designation is made.

6 Press regulation

110. Following the Leveson Inquiry into the culture, practices and ethics of the press, the Government included a provision in the Crime and Courts Act 2013 which would, if commenced, require news publishers to pay the costs of any court judgement if they were not a member of an approved regulator, regardless of the outcome of the judgement.243 It has never been enacted and in 2018 the Government committed to its repeal. The final part of the Media Bill fulfils this commitment.244

Repeal of Section 40 of the Crime and Courts Act 2013

111. The Crime and Courts Act required a press regulator to have been approved by the Press Recognition Panel (the “Panel”) if its members were not to be required to pay the costs of both sides in any court case. The Panel was established by Royal Charter in 2014 to provide oversight of press regulators. Only one regulator has been approved, Impress, which represents some 200 publications, many of which are small-to-medium sized businesses, charities, not-for-profits and cooperatives.245 The vast majority of the UK’s national, regional and local newspapers and magazines are members of the Independent Press Standards Organisation (IPSO). IPSO was set up in 2014 and its members represent some 2,600 print and online titles.246 It has never applied for approval by the Panel.247 Other news organisations such as the Guardian and Financial Times run their own schemes.248

112. In 2016, the Government ran a consultation regarding whether Section 40 should be commenced or repealed. It concluded in 2018 that, although the new system was not what was envisaged when the Royal Charter was granted, “it has led to a raising of standards across the industry, independently of government”:249

Given these changes to the self-regulatory system we judge that commencing section 40 is no longer necessary, and repealing it will help support the future security of traditional publishers, especially at a local level, protecting the free press and tradition of investigative journalism that is an essential component of our democracy in ensuring the powerful are held to account without fear or favour.250

The Government committed to repealing Section 40 and has included this in Part 7 of the Media Bill.251

113. We received submissions on both sides of the debate. The Press Recognition Panel, the body which approves regulators, wanted Section 40 not repealed but commenced. It argued that the complaints systems for news publishers outside of the scheme were “arbitrary and that, in many cases, redress is out of reach for all but the wealthiest who have the means to pursue a claim through the courts”:252

Without a majority of news publishers participating in the regulatory scheme of an Approved Regulator, the balance between freedom of speech and public protection is skewed away from the public and towards news publishers, who write their own code of conduct and complaints processes. This would leave only the wealthy able to seek meaningful redress through the courts. Section 40 was designed to create a more equitable balance. But without it, this imbalance will continue with some arbitrary and inconsistent complaints handling processes across the industry, meaning there can be a highly variable response when concerns are raised.253

The approved regulator Impress argued that, rather than repealing all of Section 40, the Government should preserve the cost protections for self-regulated publishers. These protections enable a court to limit costs against the defendant or make no award at all if it considers it is “just and equitable.254

114. However, the News Media Association said that Section 40 posed a threat to press freedom and financial sustainability:

Not a single national, regional or local newspaper or magazine of any significance is willing, as a matter of principle, to sign up to any regulator recognised under the Royal Charter apparatus. No reputable independent publisher will be cowed into submitting to statutory press regulation, however arms-length it may appear to be.255

115. We note the conclusion of the Government’s review of Section 40 of the Crime and Courts Act and its decision that it should be repealed. However, there can be no room for complacency regarding press standards. We will continue to scrutinise the work of the media industry and hold the press accountable for its reporting.

7 Conclusion

116. We heard one consistent message throughout our inquiry: that Parliament may not get a further chance to significantly reform media legislation for another 20 years, so it is vital to get this legislation right. We have sought to scrutinise the legislation to ensure that it is proportionate, future-proofed and, most importantly of all, meets the needs of audiences.

117. The Bill is critical to the sustainability of Public Service Broadcasters (PSBs): significant shifts in viewing habits and rapid technological change make it imperative. We do not consider that these protections for PSBs disproportionately damage platforms’ commercial interests. The global players likely to be in scope of the legislation are unlikely to be materially damaged by the prominence obligations and we consider that Ofcom’s power to step in if negotiations with PSBs break down should prove an effective backstop if required.

118. We have looked carefully at the powers the Bill gives the Government to amend the legislation in the future. We agree that the legislation should be future-proofed. But, in some cases, we consider that the Bill should be amended to strengthen consultation and parliamentary scrutiny to ensure that flexibility comes with accountability.

119. Finally, we believe that, if our recommendations are accepted, the Bill is firmly in the interests of audiences. The provision of public service content is fundamental to the UK broadcasting landscape and it is because we value this so highly that we have called for genres to be retained. Likewise, our view that the Video-on-Demand Code should apply to all providers is designed to meet audience needs and enable them to be confident that all content is subject to the same standards.

120. We consider that the Bill balances the needs of audiences, platforms and broadcasters. We support the introduction of the Bill, subject to the Government reflecting on the recommendations in this report. We recommend that the Government prioritise the Media Bill in the upcoming fourth session of this Parliament.

Conclusions and recommendations

Public service broadcasting

1. The Government is seeking to simplify the public service remit; however, removing the requirement to provide specific genres of content goes beyond mere simplification. The removal of origination quotas for UK children’s content for commercial Public Service Broadcasters led to significant reductions in the production of original children’s TV, and we are concerned that the draft Media Bill’s removal of the specific reference to other genres will lead to similar reductions in content, particularly in the less commercially successful areas. We recommend that the Government retains obligations on Public Service Broadcasters to provide specific genres of content. (Paragraph 16)

2. We are concerned that the “backstop” power, enabling the Secretary of State to specify new categories of audiovisual content should the Secretary of State consider that they are being underserved, creates the perception that media regulation is no longer independent of government. We recommend that the Secretary of State’s power to specify new categories of audiovisual content should only be exercisable following a recommendation from Ofcom. (Paragraph 21)

3. Allowing Public Service Broadcasters to use a wider range of services to contribute towards their remit, including on-demand, should not come at the expense of linear broadcast audiences. It is imperative that broadcasters make their content as accessible as possible to all audiences, regardless of whether viewers have the means or desire to switch to on-demand services. We urge Ofcom to hold Public Service Broadcasters to the highest standards and capitalise on its role as regulator of both the broadcasting and broadband industries. We recommend that Ofcom uses its monitoring of home internet access to inform its assessments of the accessibility of public service content on broadcasters’ linear channels. (Paragraph 27)

4. Our conclusions about the impact the Media Bill could have on audiences are part of a wider context of change in the broadcasting industry. We continue to be concerned about the impact of the BBC’s Digital First strategy on linear TV and radio audiences. Sharing content across large areas risks undermining the sense of localness that has, until now, made BBC local radio distinct. We are similarly concerned that the direction of travel in linear TV provision could also diminish coverage for local audiences. While we recognise that the latest license fee settlement is difficult for the BBC, its changes to local radio and local TV provision are evidence that the drive to prioritise digital strategies can often come at the expense of local audiences. (Paragraph 30)

5. We agree that there should be a minimum length of time for which material has to be available on-demand so that people can watch it at a convenient time. However, Public Service Broadcasters raise legitimate concerns about whether 30 days is appropriate for every type of content, as broadcast and on-demand rights in areas such as sports, news or music can be significantly shorter. We recommend that the Bill be amended to allow the Secretary of State to vary the 30-day on-demand requirement for particular types of content, following consultation with Ofcom and other appropriate stakeholders. (Paragraph 32)

6. The increased flexibility of the public service remit should be accompanied by a lower threshold for Ofcom to intervene if it considers that a Public Service Broadcaster is failing to meet its remit. The current bar of “serious” is too high. Enabling Ofcom to step in earlier would protect the regime and increase public confidence that the flexibility of the new remit will not be accompanied by a decline in standards. We recommend that the Bill should lower the threshold at which Ofcom can intervene to protect the public service broadcast regime, enabling it to step in before concerns about whether a Public Service Broadcaster is meeting its remit have already become serious. (Paragraph 34)

Listed Events

7. We welcome the draft Bill limiting the Listed Events regime to Public Service Broadcasters. These events are important sporting occasions with immense cultural and social impact and the regime is critical to the UK’s sporting and media landscape. However, it is unfortunate that the Government has not taken the opportunity to use the legislation to close the loophole that allows an unregulated streaming service to buy the rights for a listed event and put them behind a paywall. We recommend that the Government amend the Media Bill to close the loophole allowing an unregulated streaming service to buy the rights for a listed event and put them behind a paywall. (Paragraph 42)

8. Digital rights should be included as part of the Listed Events regime to reflect sweeping changes in how audiences consume content since the original legislation was passed. We recommend that the Government includes provisions in the Bill to enable digital rights to be included in the Listed Events regime without the need for further primary legislation. (Paragraph 47)

Prominence on TV selection services

9. User interfaces on connected devices are very different to Electronic Programming Guides. The breadth of ways in which user interfaces can be designed means that what prominence looks like will vary considerably from device to device. What matters is ensuring that public service content is always carried and easy to find. We consider that changing the descriptor from “appropriate” to “significant” would be less open to interpretation and better meet the aims of the Bill. We recommend that the descriptor for prominence is changed from “appropriate” to “significant”. (Paragraph 53)

10. It is in the interests of both Public Service Broadcasters and platforms that the Media Bill enables legacy devices to be exempted from requirements, given the technical hurdles involved. However, it is important that any exemption is not exploited. Allowing Ofcom to exempt certain previously designated devices on legacy grounds would address the overall issue, providing that it considers the extent to which such devices are still used by the public. We recommend that the Bill should allow Ofcom to de-designate legacy devices so that they are no longer subject to the provisions on prominence. (Paragraph 57)

11. Only those television selection services which are deemed to be used by a significant number of viewers in the UK to access TV content online will be regulated. While the Secretary of State may only designate these services or specify a description of them following a report from Ofcom, the fact that the Minister can decide against Ofcom’s recommendations means that their decision should be open to greater Parliamentary scrutiny. We recommend that the affirmative procedure should be used when the Secretary of State designates or specifies a description of regulated television selection services. (Paragraph 60)

12. The agreement objectives are fundamental to the must offer-must carry regime. Any ambiguity in their drafting is likely to lead to either or both broadcasters and platforms resorting far more frequently than anticipated to the dispute mechanism process. While Ofcom will be required to consult and publish guidance on how the agreement objectives will operate, it is essential that the legislation itself specifies clearly the principles that the guidance must deliver. However, the fact that successful deals already exist - such as that between ITV and Sky - suggests that agreeing mutually acceptable principles is possible. We recommend that the Government should examine the principles on which existing successful carriage deals have been negotiated and use this to improve the drafting of this provision in the legislation. (Paragraph 68)

Reform of Public service broadcasters

13. The sustainability duty reinforces what the Channel 4 Corporation is already doing. As such, the wording should reflect their primary functions and existing statutory duties to avoid there being any unintended consequences such as a conflict with their existing obligations. We recommend that the Government should review the wording of the sustainability duty to ensure that it is compatible with the Channel 4 Corporation’s existing obligations. (Paragraph 73)

14. It is hard to quantify the full impact of the removal of Channel 4’s publisher-broadcaster model in the absence of an impact assessment, but the removal is a fundamental change to its status. Allowing Channel 4 to produce and monetise its own content will help diversify its revenue streams but could have significant implications for the independent production sector and the wider production ecology outside of the South East. We recommend that, on introduction of the Bill, the Government should publish a policy statement setting out its intended monitoring and mitigations for any harm to the wider production sector from the changes to Channel 4’s model. (Paragraph 82)

15. Giving regional prominence to both S4C and STV goes to the heart of what the Government is trying to achieve with this Bill: to ensure public service broadcasting is not only available on platforms but easy to find. Given the size of the revenues of those television selection services likely to be in scope of the legislation, we are not convinced that the technical issues raised by the industry are such that compliance on this issue would be a disproportionate or unreasonable requirement and so we support the inclusion of this provision in the Bill. (Paragraph 87)

Video on-Demand services

16. The Government has said that it wants audiences to be confident that all content, however they consume it, is subject to the same regulation. Requiring only the largest Video-on-Demand providers to abide by the new Code does not achieve that aim. While the Government believes that it would be disproportionate and restrict freedom of speech if all platforms were designated, to not do so undermines the regulatory principle that the Government is seeking to deliver. We recommend that, in the same way that the Broadcasting Code applies to all broadcasters, the Video-on-Demand Code should apply to all Video-on-Demand services. (Paragraph 95)

17. We recognise concerns that there are elements of the Broadcasting Code which do not translate well to a Video-on-Demand context, particularly how the due impartiality obligations will be managed in a non-linear environment. However, Ofcom is required to consult Tier 1 organisations before finalising the Code and so we anticipate that stakeholders’ concerns can be addressed prior to implementation. We agree that there needs to be more clarification but consider that this is best left to Ofcom’s consultation and therefore do not propose any change to the Bill. (Paragraph 103)

18. As the fairness and privacy code will enable complaints coming from outside the UK, this could have significant resource implications for Ofcom. It is not possible to gauge in advance the likelihood of this happening, but should it become onerous then Ofcom would need to be resourced to meet this increased demand. We recommend that the Government should monitor the extent to which the fairness and privacy code is requiring Ofcom to manage complaints from abroad and resource it accordingly. (Paragraph 106)

19. The Government’s approach to the scrutiny of the Secretary of State’s power to designate Tier 1 services is confused. Putting information into the public domain at the same time as legislating is not a substitute for parliamentary scrutiny of increased regulation, especially where the Government has argued there are issues of freedom of speech involved. We recommend, should the Government proceed with its tiered approach, it should be required to lay before Parliament a list of services to be designated no fewer than 5 sitting days before the statutory designation is made. (Paragraph 109)

Press regulation

20. We note the conclusion of the Government’s review of Section 40 of the Crime and Courts Act and its decision that it should be repealed. However, there can be no room for complacency regarding press standards. We will continue to scrutinise the work of the media industry and hold the press accountable for its reporting. (Paragraph 115)

Conclusion

21. We consider that the Bill balances the needs of audiences, platforms and broadcasters. We support the introduction of the Bill, subject to the Government reflecting on the recommendations in this report. We recommend that the Government prioritise the Media Bill in the upcoming fourth session of this Parliament. (Paragraph 120)

Formal minutes

Tuesday 19 September 2023

Members present:

Dame Caroline Dinenage, in the Chair

Kevin Brennan

Clive Efford

Julie Elliott

Rt Hon Damian Green

Simon Jupp

Jane Stevenson

Giles Watling

Draft Report (Draft Media Bill: Final Report), proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 120 read and agreed to.

Annex agreed to.

Resolved, That the Report be the Thirteenth Report of the Committee to the House.

Ordered, That the Chair make the Report to the House.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No.134.

Adjournment

Adjourned till Wednesday 18 October at 9.30 am.


Witnesses

The following witnesses gave evidence. Transcripts can be viewed on the inquiry publications page of the Committee’s website.

Tuesday 06 June 2023

Magnus Brooke, Group Director of Strategy, Policy and Regulation, ITV; Khalid Hayat, Director of Strategy and Consumer Insight, Channel 4; Mitchell Simmons, Vice President, Public Policy & Government Affairs, Public Policy & Government Affairs EMEA, ParamountQ1–77

Tuesday 20 June 2023

Elin Morris, Chief Operating Officer, S4C; John Morrison, Chairman, MG Alba; Clare Sumner CBE, Director, Policy, BBCQ78–156

Paul Oldfield, Controller, Policy, BBC; Matt Payton, Chief Executive, Radiocentre; Martin Steers, Co-founder, UK Community Radio NetworkQ78–156

Tuesday 27 June 2023

Anna Hatfield, Public Policy Manager, Amazon; Benjamin King, Senior Director of Public Policy UK and Ireland, Netflix; Alistair Law, Director of Policy, SkyQ157–283

Rosie Johnston-Luff, Public Policy Manager, Google; Richard Stern, Chief Executive, TuneIn; Lewis Walmesley-Browne, Head of programme: Market Access and Consumer Tech, techUKQ157–283

Tuesday 04 July 2023

Kate Biggs, Content Policy Director, Ofcom; Kate Davies, Public Policy Director, Ofcom; Colin Browne, Chair, Voice of the Listener and ViewerQ284–414

Sir John Whittingdale MP, Minister for Media, Tourism and Creative Industries, Department for Culture, Media and Sport; Robert Specterman-Green, Director, Media and Creative Industries, Department for Culture, Media and SportQ284–414


Published written evidence

The following written evidence was received and can be viewed on the inquiry publications page of the Committee’s website.

DMB numbers are generated by the evidence processing system and so may not be complete.

1 All-Party Parliamentary Group on Commercial Radio (DMB0047)

2 Amazon (DMB0077)

3 Antisemitism Policy Trust (DMB0001)

4 Arqiva (DMB0030)

5 AudioUK (DMB0033)

6 Authors’ Licensing and Collecting Society (DMB0055)

7 BBC (DMB0070)

8 BBC (DMB0049)

9 BBC; and Radiocentre (DMB0072)

10 BBFC (DMB0004)

11 Banbury FM Ltd (DMB0015)

12 Better Media (DMB0069)

13 Better Media (DMB0002)

14 British Film Institute (DMB0063)

15 Broadcast 2040+ Campaign (DMB0021)

16 COBA (DMB0009)

17 Channel 4 (DMB0054)

18 Cornwall Council (DMB0012)

19 DTG (DMB0035)

20 Department for Culture, Media and Sport (DMB0067)

21 Directors UK (DMB0034)

22 Fremantle UK (DMB0029)

23 Humanists UK (DMB0026)

24 IMPRESS (DMB0010)

25 ISBA (DMB0052)

26 ITN (DMB0041)

27 ITV (DMB0023)

28 International Broadcasting Trust (IBT) (DMB0011)

29 Kearns MP, Alicia (Member of Parliament for Rutland and Melton, House of Commons) (DMB0007)

30 LG Electronics UK (DMB0039)

31 Local TV Ltd (DMB0076)

32 MG Alba (DMB0066)

33 MG Alba (DMB0040)

34 Madeley, Mr Gary (DMB0042)

35 Masimo Consumer Audio (DMB0065)

36 Maxxwave Ltd; and Majority of licensed AM broadcasters (see evidence submission) (DMB0005)

37 Motion Picture Association (DMB0038)

38 Nation Broadcasting, Sunrise Radio, Panjab Radio, Dee Radio, Tindle Radio, KMFM, Angel Radio, Like Media Group, Star Media, Total Sense Media, Hot Radio, Fun Kids Radio, Switch Radio, Sunrise Radio (Yorkshire), Totally Radio and Your Harrogate (DMB0075)

39 Netflix (DMB0050)

40 Netgem (DMB0064)

41 News Media Association (DMB0020)

42 Nile (DMB0016)

43 Ofcom (DMB0027)

44 PEC team at Cardiff University (DMB0036)

45 Pact (DMB0022)

46 Paramount (DMB0043)

47 Press Recognition Panel (DMB0014)

48 RNIB (DMB0025)

49 RNID (DMB0028)

50 Radiocentre (DMB0071)

51 Radiocentre (DMB0037)

52 Reset; and Public Interest News Foundation (DMB0051)

53 Roku, Inc (DMB0059)

54 Rutland and Stamford Sound Community Interest Company (DMB0006)

55 S4C (DMB0073)

56 S4C (DMB0031)

57 Samaritans (DMB0018)

58 Sandford St Martin Trust (DMB0062)

59 Sky (DMB0053)

60 TalkTalk (DMB0045)

61 techUK (DMB0061)

62 Teledwyr Annibynnol Cymru (TAC) (DMB0024)

63 The Local TV Network (DMB0017)

64 The Walt Disney Company (DMB0056)

65 Together TV (The Community Channel) (DMB0008)

66 TuneIn (DMB0074)

67 TuneIn Inc (DMB0048)

68 UK Coalition for Cultural Diversity (DMB0019)

69 UK Community Radio Network (DMB0046)

70 UK Music (DMB0032)

71 Virgin Media O2 (DMB0057)

72 Voice of the Listener & Viewer (DMB0058)

73 Warner Bros. Discovery (DMB0060)


List of Reports from the Committee during the current Parliament

All publications from the Committee are available on the publications page of the Committee’s website.

Session 2022–23

Number

Title

Reference

1st

Amending the Online Safety Bill

HC 271

2nd

Promoting Britain abroad

HC 156

3rd

Reimagining where we live: cultural placemaking and the levelling up agenda

HC 155

4th

What next for the National Lottery?

HC 154

5th

Economics of music streaming: follow-up

HC 874

6th

Current issues in rugby union

HC 1018

7th

Sustainability of local journalism

HC 153

8th

Appointment of Richard Sharp as Chair of the BBC

HC 1147

9th

Football governance

HC 1288

10th

Connected tech: smart or sinister?

HC 157

11th

Connected tech: AI and creative technology

HC 1643

12th

Draft Media Bill: Radio Measures

HC 1287

1st Special

Major cultural and sporting events: Government Response to Committee’s Ninth Report of Session 2021–22

HC 452

2nd Special

Influencer Culture: Lights, camera, inaction?: ASA System and CMA Responses to the Committee’s Twelfth Report of Session 2021–22

HC 610

3rd Special

Influencer Culture: Lights, camera, inaction?: Government Response to the Committee’s Twelfth Report of Session 2021–22

HC 687

4th Special

Rt Hon Nadine Dorries MP

HC 801

5th Special

Promoting Britain abroad

HC 1103

6th Special

Reimagining where we live: cultural placemaking and the levelling up agenda

HC 1104

7th Special

What next for the National Lottery?: Government and Gambling Commission Responses to the Committee’s Fourth Report

HC 1208

8th Special

Economics of music streaming: follow-up: Government Response to the Committee’s Fifth Report

HC 1245

9th Special

The sustainability of local journalism: Government Response to the Committee’s Seventh Report

HC 1378

10th Special

Appointment of Richard Sharp as Chair of the BBC: Government Response to the Committee’s Eighth Report

HC 1641

Session 2021–22

Number

Title

Reference

1st

The future of UK music festivals

HC 49

2nd

Economics of music streaming

HC 50

3rd

Concussion in sport

HC 46

4th

Sport in our communities

HC 45

5th

Pre-appointment hearing for Information Commissioner

HC 260

6th

Pre-appointment hearing for Chair of the Charity Commission

HC 261

7th

Racism in cricket

HC 1001

8th

The Draft Online Safety Bill and the legal but harmful debate

HC 1039

9th

Major cultural and sporting events

HC 259

10th

Another pre-appointment hearing for Chair of the Charity Commission

HC 1200

11th

Pre-appointment hearing for Chair of Ofcom

HC 48

12th

Influencer culture: Lights, camera, inaction?

HC 258

1st Special Report

The future of public service broadcasting: Government Response to Committee’s Sixth Report of Session 2019–21

HC 273

2nd Special
Report

Economics of music streaming: Government and Competition and Markets Authority Responses to Committee’s Second Report

HC 719

3rd Special Report

Sport in our communities: Government Response to Committee’s Fourth Report

HC 761

4th Special Report

The future of public service broadcasting: Ofcom Response to Committee’s Sixth Report of Session 2019–21

HC 832

5th Special

The Draft Online Safety Bill and the legal but harmful debate: Government Response to the Committee’s Eighth

HC 1039

Session 2019–21

Number

Title

Reference

1st

The Covid-19 crisis and charities

HC 281

2nd

Misinformation in the COVID-19 Infodemic

HC 234

3rd

Impact of COVID-19 on DCMS sectors: First Report

HC 291

4th

Broadband and the road to 5G

HC 153

5th

Pre-appointment hearing for Chair of the BBC

HC 1119

6th

The future of public service broadcasting

HC 156

1st Special Report

BBC Annual Report and Accounts 2018–19: TV licences for over 75s Government and the BBC’s Responses to the Committee’s Sixteenth Report of Session 2017–19

HC 98

2nd Special Report

The Covid-19 crisis and charities: Government Response to the Committee’s First Report of Session 2019–21

HC 438

3rd Special Report

Impact of Covid-19 on DCMS sectors: First Report: Government Response to Committee’s Third Report of Session 2019–21

HC 885

4th Special Report

Misinformation in the COVID-19 Infodemic: Government Response to the Committee’s Second Report

HC 894


Footnotes

1 Ofcom (3 August 2023), Media Nations UK 2023 p3

2 Ofcom (3 August 2023), Media Nations UK 2023 p3

3 Ofcom (3 August 2023), Media Nations UK 2023 p4

4 The role of Public Service Broadcasters is explained further in Chapter 1.

5 Ofcom (3 August 2023), Media Nations UK 2023 p12–13. In 2014, 2,490 transmissions attracted more than four million TV viewers, but in 2022 there were only 1,184 – a 52% drop. Transmissions attracting more than six million TV viewers fell by 82% over the same period, from 1,172 to 213.

6 Ofcom (4 July 2019), Review of prominence for public service broadcasting p1

7 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill

8 Secretary of State for Culture, Media and Sport (29 March 2023), Media Update UIN HCWS685

9 DCMS Committee (19 April 2023), DCMS Committee launches pre-legislative scrutiny

10 Ofcom (3 August 2023), Media Nations UK 2023 p12

11 Communications Act 2003 Chapter 4. The BBC’s obligations are set out in its Charter and Framework Agreement.

12 Communications Act 2003 ss. 264(4) and (6)

13 Communications Act 2003, s. 264(6)

14 DCMS (29 April 2022), Up Next - the government’s vision for the broadcasting sector para 3.1

15 DCMS (29 April 2022), Up Next - the government’s vision for the broadcasting sector para 3.1

16 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.1 inserting new section 264(4) of the Communications Act 2003

17 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.1 inserting new section 264(5)(b) of the Communications Act 2003

18 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.1 inserting new section 264(15) of the Communications Act 2003

19 DCMS (29 April 2022), White Paper: Up Next - the Government’s vision for the broadcasting sector para 3.1

20 Voice of the Listener & Viewer (DMB0058)

21 Q284

22 PEC team at Cardiff University (DMB0036)

23 International Broadcasting Trust (IBT) (DMB0011)

24 UK Coalition for Cultural Diversity (DMB0019)

25 Teledwyr Annibynnol Cymru (TAC) (DMB0024)

26 Sandford St Martin Trust (DMB0062)

27 Humanists UK (DMB0026)

28 UK Music (DMB0032)

29 Q115

30 Q1

31 Q2

32 Q356

33 Q359

34 Ofcom (2 July 2015), Public Service Broadcasting in the Internet Age: Ofcom’s Third Review of Public Service Broadcasting para 3.38

35 Ofcom (27 February 2020), Small Screen: Big Debate – a five-year review of Public Service Broadcasting (2014–18) p18

36 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.10, inserting new section 278A of the Communications Act 2003

37 Directors UK (DMB0034)

38 Teledwyr Annibynnol Cymru (TAC) (DMB0024)

39 PEC team at Cardiff University (DMB0036)

40 Q285

41 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.10, inserting new section 278A(4)(b) of the Communications Act 2003

42 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: memorandum re delegated powers

43 DCMS (29 June 2023), Media Bill impact assessment - Modernising the UK’s system of public service broadcasting para 148

44 DCMS (29 June 2023), Media Bill impact assessment - Modernising the UK’s system of public service broadcasting para 148

45 Q287

46 Q360

47 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.1 inserting new section 264(8A) of the Communications Act 2003. This part of the Bill applies to Channel 3 (which comprises 13 ITV licensees, two STV ones and a national breakfast TV service), Channel 4 and Channel 5. The BBC can already use iPlayer in addition to its linear channels to meet its remit.

48 Communications Act 2003 s279

49 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill Clause 9(2)

50 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill Clause 1(6) and (7)

51 Ofcom (29 March 2023), Adults’ Media Use and Attitudes Report 2023 p25

52 Ofcom (10 May 2023), Connected Nations update spring 2023 p2

53 Q354

54 DCMS anticipates that, based on the current level of Digital Terrestrial Television (DTT) used by households across the UK, DTT will continue to be an important content distribution channel for at least the remainder of the 2020s and likely into the early 2030s. Ofcom now has the power to renew DTT licences through to 2034. DCMS (29 April 2022), White Paper: Up Next - the Government’s vision for the broadcasting sector para 5.3

55 Broadcast 2040+ Campaign (DMB0021)

56 Together TV DMB0008

57 Arqiva (DMB0030)

58 Q5

59 Q4

60 Q358

61 BBC (26 May 2022), Plan to deliver a digital-first BBC - Media Centre and BBC News (16 December 2022), Regional BBC shows in Oxford and Cambridge end. Accessed 13 September 2023.

62 BBC (31 October 2022), BBC sets out plans to transform its local services to deliver greater value to communities across England - Media Centre

63 Ofcom (24 February 2023), Letter from Ofcom to the BBC, 24 February 2023

64 The Mirror (11 September 2023), BBC host embarks on furious rant during final show to blast ‘ageist’ local radio cuts. Accessed 13 September 2023

65 The Mirror (11 September 2023), BBC host embarks on furious rant during final show to blast ‘ageist’ local radio cuts. Accessed 13 September 2023; and, BBC Sounds, Treasure Chest – 10 September 2023. Accessed 13 September 2023

66 Daily Mail (12 September 2023),  BBC presenter who launched on-air attack on Corporation’s ‘ageist and ableist’ local radio cuts after it axed her show now accuses broadcaster of ‘censorship’ after her tirade was removed from catch-up service Accessed 13 September 2023

67 Oral Evidence taken on 13 June 2023, HC (2021-23) 382, Q513

68 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.1 inserting new section 264(8A) of the Communications Act 2003

69 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: memorandum re delegated powers para 14

70 Q10

71 S4C (DMB0031)

72 Q105 and Q106

73 Q105

74 Communications Act 2003, s.270(2)

75 Ofcom (DMB0027)

76 Q351

77 Q351

78 Ofcom, Listed Events (accessed 1 September 2023)

79 DCMS (29 June 2023), Media Bill Overarching Impact Assessment para 15

80 Digital, Culture, Media and Sport Committee (8 March 2022), Major cultural and sporting events para 51

81 DCMS (29 June 2023), Media Bill Overarching Impact Assessment para 58

82 Department for Culture, Media and Sport DCMS (29 June 2023), Media Bill Overarching Impact Assessment, Table 1, p19

83 DCMS (29 June 2023), Media Bill impact assessment - Modernising the UK’s system of public service broadcasting para 20

84 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.20 amending section 98 of the Broadcasting Act 1996

85 S4C (DMB0031)

86 Q16

87 COBA (DMB0009)

88 Q214

89 Q209

90 Q209

91 Warner Bros. Discovery (DMB0060)

92 Q368

93 DCMS (29 April 2022), White Paper: Up Next - the Government’s vision for the broadcasting sector para 5.4

94 Q21

95 Q13

96 BBC (DMB0049)

97 DCMS (29 April 2022), Up Next - the government’s vision for the broadcasting sector para 3.3. Only 4% of UK households had access to the internet in 1996, para 3.3.

98 DCMS (29 April 2022), Up Next - the government’s vision for the broadcasting sector para 3.3

99 DCMS Committee (8 March 2022), Major Cultural and Sporting Events para 51

100 DCMS (15 November 2022), https://www.gov.uk/government/publications/listed-events-digital-rights-review

101 HC Deb vol 734 col 214WH (15 June 2023)

102 Channel 4 (DMB0054)

103 BBC (DMB0049)

104 BBC (DMB0049)

105 Q13

106 Q213. Twitter was renamed X on 24 July 2023.

107 Communications Act 2003 s.310(2). The current legal framework guarantees that the first five channels on EPGs are operated by PSBs.

108 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: explanatory notes para 10

109 Department for Culture, Media and Sport (29 March 2023), Written statement UIN HCWS685, Media Update

110 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: explanatory notes para 109

111 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AE(2) of the Communications Act 2003

112 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AA(3) of the Communications Act 2003

113 Communications Act 2003 s310(2)

114 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AL(1) of the Communications Act 2003

115 Q78

116 Channel 4 DMB0054

117 Q79

118 ITV DMB0023

119 Q185

120 Q185

121 COBA (DMB0009)

122 Q39

123 Q40

124 Q41

125 Q231

126 Q252

127 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AE(2) of the Communications Act 2003

128 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AE(1) of the Communications Act 2003

129 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AE(4) of the Communications Act 2003

130 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AF(7) of the Communications Act 2003

131 Department for Culture, Media and Sport (DMB0067)

132 Ofcom (DMB0027)

133 The BBC is already obliged to seek to enter into partnerships with other organisations “where to do so would be in the public interest”: BBC Royal Charter (December 2016) para 13(1). It must also do “all that is reasonably practicable” to ensure that viewers, listeners and other users are able to access its content: BBC Framework Agreement (December 2016) para 61(1).

134 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AI(5) of the Communications Act 2003

135 Ofcom can decline a case if it considers that there are alternative means available for resolving the dispute: Draft Media Bill c.23 inserting new section 362AR(4) of the Communications Act 2003.

136 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AI(5)(b) of the Communications Act 2003

137 Q375

138 Q378

139 Virgin Media O2 (DMB0057)

140 techUK (DMB0061)

141 Netgem (DMB0064)

142 Q199

143 Q42

144 Q42

145 Q42

146 Q42

147 Q195

148 Q198

149 LG Electronics UK (DMB0039)

150 Channel 4 (DMB0054)

151 Q318

152 Q318

153 Q398 and Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.23 inserting new section 362AK of the Communications Act 2003

154 DCMS (5 January 2023),  Channel 4 to remain publicly owned with reforms to boost its sustainability and commercial freedom

155 Broadcasting Act 1990 s.24(1)

156 Channel 4, Frequently Asked Questions. Accessed 2 August 2023

157 Companies Act 2006 s.172

158 Department for Culture, Media and Sport DCMS (29 June 2023), Media Bill Overarching Impact Assessment para 98

159 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.24(2) inserting new section 23A of the Communications Act 2003

160 Department for Culture, Media and Sport DCMS (29 June 2023), Media Bill Overarching Impact Assessment para 98

161 Q379

162 Qq44–45

163 Q47

164 Directors UK (DMB0034)

165 Channel 4 (12 July 2023), Channel 4 Television Corporation Report and Financial Statements 2022 p15

166 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.25

167 Communications Act 2003 s.295

168 Channel 4 (12 July 2023), Channel 4 Television Corporation Report and Financial Statements 2022 p96

169 Secretary of State for Culture, Media and Sport (29 March 2023), Media Update UIN HCWS685

170 Directors UK (DMB0034)

171 Pact (DMB0022)

172 Nile (DMB0016)

173 Together TV (The Community Channel) (DMB0008)

174 Q49

175 Q50

176 Q51

177 Q382

178 Q383

179 Q383

180 Q384

181 Q381

182 DCMS (29 June 2023), Draft Media Bill - Overarching Impact Assessment para 100

183 Regulatory Policy Committee (7 June 2023), Draft Media Bill - Overarching IA p8

184 DCMS (29 March 2018) Government response to the S4C independent review:`Building an S4C for the future’

185 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill Clauses 26–28

186 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s362AL(2)

187 techUK (DMB0061)

188 Q280

189 S4C (DMB0073)

190 S4C (DMB0073)

191 DCMS (29 June 2023), Media Bill impact assessment - A principles-based framework for a new prominence regime for PSB online services para 108

192 DCMS (29 June 2023), Media Bill impact assessment - A principles-based framework for a new prominence regime for PSB online services para 107

193 Ofcom (30 December 2020), Ofcom Broadcasting Code. Accessed 4 August 2023.

194 DCMS (29 April 2022), Up Next - the government’s vision for the broadcasting sector para 5.1. The regulatory obligations for the BBC’s on-demand service, BBCiPlayer, are set out in the BBC Charter and Framework Agreement rather than directly in legislation. Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: explanatory notes para 247

195 The Government stated in its White Paper that, in order to respect issues of free speech and proportionality, “smaller, lower risk” services would be regulated under existing rules, to ensure that they were not “unfairly or unnecessarily penalised”. DCMS (29 April 2022), Up Next - the government’s vision for the broadcasting sector para 5.1

196 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: explanatory notes para 13

197 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill Clause 31

198 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: explanatory notes para 250

199 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s.368HB(5)

200 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s.368HJ(3)

201 Department for Culture, Media and Sport (29 June 2023), Media Bill - impact assessment - Video-on-Demand regulation para 73

202 Department for Culture, Media and Sport (29 June 2023), Media Bill - impact assessment - Video-on-Demand regulation paras 73–74

203 Q340

204 Q341

205 Q157

206 Q158

207 Q164

208 Roku, Inc (DMB0059)

209 Q159

210 COBA (DMB0009)

211 Q162

212 Channel 4 (DMB0054)

213 Q342. The powers enabling the Secretary of State to specify Tier 1 services are found at Draft Media Bill s.368HB.

214 Q413

215 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s.368HF(2) and (3). The advertising and product placement provisions are not included in the VoD Code as advertising on VoD services will be considered through the Online Advertising Programme, which the Government published a consultation on in March 2021. Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: explanatory notes para 261

216 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s.368HI(1)

217 Humanists UK (DMB0026). “(A)busive treatment” is referenced at Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s.368HF(3b)

218 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s.368HH(2b)

219 Samaritans (DMB0018)

220 Antisemitism Policy Trust (DMB0001)

221 Q172

222 Walt Disney Company (DMB0056)

223 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill s.368HG

224 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: explanatory notes para 264

225 Netflix (DMB0050)

226 Q169

227 Motion Picture Association (DMB0038)

228 Q302

229 COBA (DMB0009)

230 Channel 4 (DMB0054)

231 Q70

232 Q344

233 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill Schedule 9(2)

234 Netflix (DMB0050)

235 Q165

236 Q345

237 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c. 31, Schedule 7, inserting new section 368HB of the Communication Act 2003

238 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.31, Schedule 7, inserting new section 368HB(4) and (5) of the Communications Act 2003

239 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill c.31, Schedule 7 inserting new section 368HB(3) of the Communications Act 2003

240 Department for Culture, Media and Sport (DMB0067)

241 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill: memorandum re delegated powers para 120

242 Department for Culture, Media and Sport (DMB0067)

243 Crime and Courts Act 2013 Section 40

244 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill Clause 43(2)

245 IMPRESS (DMB0010)

246 News Media Association DMB0020

247 Press Recognition Panel DMB0014 and News Media Association DMB0020

248 The Guardian How to make a complaint about Guardian or Observer content and Financial Times How do I raise a complaint?. Accessed 8 August 2023.

249 UK Government (1 March 2018), Government response to the consultation on the Leveson Inquiry and its implementation p24

250 UK Government (1 March 2018), Government response to the consultation on the Leveson Inquiry and its implementation p25

251 Department for Culture, Media and Sport (29 March 2023), Draft Media Bill Clause 43(2)

252 Press Recognition Panel DMB0014

253 Press Recognition Panel DMB0014

254 Crime and Courts Act 2013 Section 40(3)

255 News Media Association DMB0020

Annex: drafting points

Clause

Text

Comments

1 (new section 264(8D)(a)CA 2003)

“specify, and comment on, whatever changes appear to OFCOM to have occurred, during the period to which the report relates, in the extent to which the public service remit for television in the United Kingdom has been fulfilled;”

Are the first set of commas necessary? Length of clause means they obscure rather than clarify

“in the extent” isn’t very clear. Should it be replaced by“to”? Or does the clause need redrafting for clarity?

1 (new section 264(8D)(c)CA 2003)

“set out the findings of OFCOM on their consideration of the matters mentioned in subsection (8C)”

Should “on their consideration” be “from their consideration”?

3 (new section 265(2) and 265(3) CA 2003)

“adequate contribution”

“adequate contribution” is not defined in s.264(13) CA 2003. Is it clear what it means for relevant parties?

3 (new section ]265(b) CA 2003)

“significant quantity”

This is not defined in the Bill. Is it clear what it means for relevant parties?

c.6 (new section 270(1)(a) CA 2003)

(a)

Suggest the drafting of paragraph (a) is absorbed into 270(1) as the deletion of paragraph (b) means it is no longer needed.

c.9 (new section 278(1)(a) CA 2003)

“a range of original productions”

Is “a range” sufficiently clearly defined elsewhere that providers will be able to comply?

c.10 (new section 278A(1)(a) CA 2003)

“to the extent that is appropriate”

This test does not appear to be further defined anywhere. Are there plans to further define it or provide guidance for stakeholders?

c.10 (new section 278A(4)(b) CA 2003)

“the Secretary of State is satisfied that it is appropriate”

Is the test of “satisfied that it is appropriate” going to be further defined anywhere?

c.10 (new section 278A(5) CA 2003)

“the conditions that OFCOM consider appropriate”

Is the test of appropriate going to be further defined anywhere?

c.10 (new section 278A(7)(c) CA 2003)

“as the Secretary of State considers appropriate”

Is the test of “considers appropriate” going to be further defined anywhere?

c.14(2)(b) (new section 286(2)(aa) CA 2003)

“at least the number of hours OFCOM considers appropriate”

Will stakeholders receive any further guidance on how Ofcom will determine the “appropriate” number of hours?

c.14(2)(d) (new section 286(2)(c) CA 2003

“a suitable amount”

Will stakeholders receive any further guidance on how Ofcom will determine “a suitable amount” of expenditure?

c.14(4) (new section 286(6)(b) CA 2003

“a significant amount of the expenditure”

How will “significant” be determined? Will Ofcom and/or stakeholders receive any further guidance on what “a significant amount of the expenditure”?

c.14(8)(b) (new section 288(1)(aa) CA 2003)

“at least the number of hours that OFCOM consider appropriate”

Is the test of “considers appropriate” going to be further defined anywhere?

c.14(9)

“a significant amount of the expenditure.”

How will “significant” be determined? Will Ofcom and/or stakeholders receive any further guidance on what “a significant amount of the expenditure”?

c.23 (new section 362AD(7)(b) CA 2003)

“make such amendments or repeals of any provision of this Act or any other Act as appear to the Secretary of State to be expedient in consequence of the amendments made by virtue of paragraph (a).”

This is an unusually broad consequential amending clause. Is it necessary for this power to be so broadly drafted or could it be limited at least as far as existing legislation is concerned?

Why is the test “to be expedient” used rather than a test of necessity?

c.23 (new section 362AI(3) CA 2003)

“the provider of the channel does its best”

“does its best” is unclear. The apparent intention of this clause could be better expressed by “takes all reasonable steps” or similar.

c.23 (new section 362AJ(1)(b) CA 2003)

“keep them in force.”

It’s not clear what this requires the provider to do. Does it mean e.g. not amend the agreed arrangements or regularly review them to ensure they are up to date? Or simply to abide by them?

c.23 (new section 362AK(2) CA 2003)

“,where they do,”

The words “where they do” don’t obviously add anything to the duty on Ofcom. Is there a reason for their inclusion?

c.23 (new section 362AO(2)(b) CA 2003)

“agrees it is not necessary”

Where are the grounds on which Ofcom and the Secretary of State can agree it is not necessary to abide by subsection (1) (e.g. de minimis)?

c.23 (new section 362AX CA 2003)

“considers appropriate”

Further clarity may be added by amending to “reasonably considers appropriate”.

c.23 (new section 362AZ(3) CA 2003)

“at least 28 days”

Suggest amending to make clear whether working or calendar days apply.

c.23 (new section 362AZ1(6) CA 2003)

“as least 28 days”

Suggest amending to make clear whether working or calendar days apply.

c.23 (new section 362AZ3(6) CA 2003)

“must have regard to any guidance published for the time being under this section”

Not clear what “for the time being” means. Suggest clarification.

c.24 (new section 23A BA 1990)

“carry on their activities in the way that they have reasonable grounds to consider … ”

Should this be “a way”? “The way” sounds prescriptive and suggests there is only one way in which this duty could be fulfilled which is unlikely given the breadth of the duty and that the Corporation only need “reasonable grounds” to satisfy it.

c.24 (new section 23(b) BA 1990)

“to be securely in a position to meet costs incurred in carrying on their activities”

It is not clear what “to be securely” means. It is debatable what it adds to “be … in a position to meet”.

c.26(2) (new section 204A(3) CA 2003)

“considers appropriate”

Suggest amend to “reasonably considers appropriate” for clarity.

45(1)

“The Secretary of State may by regulations make provision that is consequential on this Act.”

Suggest it reads “The Secretary of State may by regulations made by statutory instrument make provision that is consequential on this Act” allowing 45(4) to be deleted

45(2)(b)

“in the same session of Parliament as this Act.”

Should this read “later in the same session of Parliament as this Act” for clarity?

Schedule 1, paragraph 2(2)(1A)

is allocated to the broadcasting of original productions included in S4C Digital at peak viewing times.

Is “in” rather than “on” is correct given the temporal aspect to the clause?