Forty Fifth Report
Proposed Negative Statutory Instruments under the European Union (Withdrawal) Act 2018
Instruments recommended for upgrade to the affirmative procedure
Audiovisual Media Services (Amendment) Regulations 2021
1.Amongst other changes, this instrument removes an obligation on Ofcom to notify the European Commission of the service providers that it regulates, and instead places a requirement on Ofcom to publish a list of these service providers on its website. It also introduces an ambulatory reference to the latest version of the definition of “European works” and of the European works guidelines, to ensure that domestic law references the relevant definition and guidance automatically should this be updated in future. The Department for Digital, Culture, Media and Sport (DCMS) says that the automatic reference will not apply if the Commission replaces the definition or guidance, as this “would expose the UK to risk of being subject to substantial change in rules it must observe”. According to DCMS, the UK will continue to participate in the European works regime as a signatory to the European Convention on Transfrontier Television as this will benefit the UK production sector.
2.The instrument also replaces a duty on Ofcom to co-operate with regulators in the EU, in relation to the requirements of the Audiovisual Media Services Directive (AVMSD),1 with a power to co-operate. DCMS says that the sharing of information by Ofcom with EU regulators is vital to ensuring that UK users remain protected, by supporting effective AVMSD regulatory regimes in EU Member States. The Department anticipates “that as a result of granting Ofcom the power to share information relating to investigations and jurisdiction, regulators in EU and EEA Member States will continue to cooperate with UK regulators”, and that it “will also incentivise other national regulators to cooperate if Ofcom engage with them”. DCMS adds that through this co-operation, “Ofcom can assist in the protection of UK users from harmful material on platforms established in EU/EEA [European Economic Area] states”, and that through sharing information to assist with investigations into both illegal and harmful materials, the UK is “abiding by its commitment to protecting minors from damaging content online”.
3.While replacing a duty on Ofcom to co-operate with regulators in the EU with a power to do so could be considered appropriate in the absence of mandatory reciprocity, this nevertheless creates some uncertainty with regard to the effectiveness of tackling online harm: key content providers, such as YouTube, are based and regulated in the EU. We have previously raised concerns about enforcement after the end of the Transition Period and that, as a third country, the UK will now have to rely on informal co-operation with regulators in the EU. While tackling online harm, especially in relation to young people, is a significant policy issue and one that the Government has committed to address through an Online Harms Bill, there is currently not a clear timetable for this Bill and the House may welcome an opportunity to look into these issues. On balance, therefore, we take the view that the instrument should be subject to the affirmative procedure.