Following the UK Government’s consultations to reform the UK broadcasting industry (including both on demand services and video service providers) and the incoming introduction of the Online Safety Bill, organisations that produce and broadcast media content have been left in a state of uncertainty as to how their obligations will change under the incoming regulatory frameworks.
This article outlines the current obligations imposed on service providers under the Audiovisual Media Services Directive and previous UK regime that was imposed by EU law, as well as the Government’s plans for the future and how organisations requirements may change post-Brexit.
Audiovisual Media Services Directive
The Audiovisual Media Services Directive 2018/1808/EU (“AVMSD”) was introduced in 2018 as an update the previous AVMS Directive 2010/13/EU, aimed at extending the scope of obligations placed on broadcasters and on-demand services to video sharing platforms (“VSPs” - being any commercial service with the principal purpose of providing programmes or user-generated content to the public, but who do not have editorial responsibility for the content that is communicated).
Following the UK’s departure from the EU on 31 January 2020, the UK was still obliged to implement the AVMSD during the transition period as that legislation fell within the scope of EU retained law. The UK government carried out the required changes through various amendments to the Broadcasting Act 1996 and the Communications Act 2003.
The obligations contained within the AVMSD are split between those applicable to television broadcasters and on-demand services, and those imposed on VSPs. The costs of non-compliance for organisations are considerable, with the AVMSD granting OFCOM the power to issue fines of up to 5% of ‘applicable qualifying revenue’ or £250,000, whichever is greater, as well as suspending or restricting an organisation’s services where OFCOM deems it necessary.
Obligations for Television Broadcasters and On-Demand Services
The AVMSD imposes a number of obligations that television broadcasters and on-demand services must comply with, including:
- Sponsorship: content cannot be influenced by sponsorship where it may affect the editorial independence of the provider, and sponsored programmes must be clearly identified as such;
- Product Placement: this is permitted for certain types of programming, provided it does not affect the editorial independence of the provider and viewers are clearly informed of the existence of product placement at the beginning, end and during each interval of any programme containing it;
- European Content Quotas: television broadcasters must ensure that 10% of their budget is dedicated to content originating in a country that is a signatory to the European Convention on Transfrontier Television Convention (which includes the UK) and on-demand services must ensure 30% of their catalogue contains such European works; and
- Harmful and Illegal Content: content must not include any incitement to violence or hatred or any public provocation to commit terrorist offences. Broadcasters and On-Demand Services also ensure that programmes that may impair the physical, mental or moral developments of minors (i.e. under-16s) are made available in a way to ensure minors will not view them, such as introducing ‘watersheds’ or age verification tools.
Television broadcasters are also subject to additional requirements relating to advertising quotas and exclusive broadcast rights to major societal events, which are beyond the scope of this article.
Obligations for VSPs
Whilst the AVMSD extended its scope to cover VSPs, these organisations are subject to separate rules to television and on-demand services. VSPs are required under the AVMSD to implement appropriate measures in order to protect:
- minors against content which may impair their physical, mental or moral development; and
- the general public from content containing incitements to violence or hatred against a group of people and from the dissemination of illegal content.
Appropriate measures in this content has been generally viewed by regulators as having in place terms and conditions for users relating to the above content, as well as age verification systems and mechanisms for reporting harmful or illegal content.
The Future Post-Brexit
Whilst the AVMSD contains a minimum set of requirements that EU member states must impose on organisations, member states are also free to regulate beyond this standard as they see fit. The UK looks set to shift the regulatory landscape post-Brexit, with a host of incoming changes for organisations which may increase the burden placed on them and introduce new obligations those broadcasters and content providers must comply with.
In a growing trend amongst UK Government following Brexit and the adoption of UK-specific regulatory frameworks, the former Secretary of State for Digital, Culture, Media and Sport (“DCMS”) Nadine Dorries recently outlined to Parliament the Government's vision for the broadcasting sector, which aims to bolster the UK’s broadcasting capabilities and introduce new growth incentives for television broadcasters and on-demand services.
However, as part of these reforms, the DCMS has also outlined its consultation in relation to Audience protection standards on Video-on-Demand Services, which includes proposals to increase obligations on on-demand services, as well as ensure that non-UK based providers are required to meet the enhanced OFCOM standards before providing services to UK audiences. These proposals contradict the EU-based ‘country of origin’ principles which allows providers who meet the standards in one member state to be able to broadcast in any other member state, regardless of the standards applicable in that member state.
For VSPs, the Government has announced that the AVMSD standards will be replaced by the incoming Online Safety Bill, which will introduce significantly increased obligations on providers to protect their users and monitor their platforms for harmful content. It also appears that this will apply to any VSPs providing services to UK audiences, meaning they must also comply with the standards outlined on the Online Safety Bill before providing services to UK users. The relatively controversial Bill has already been subject to a number of significant revisions, and it remains to be seen whether the obligations on VSPs will be enhanced or diluted prior to its provisions coming into force.
If you have any questions or would otherwise like to discuss any issue raised in this article, please contact David Varney or Richard Hugo.