The government recently published the Broadcasting (Amendment) (EU Exit) Regulations 2019 (the “Regulations”), which will come into force in the event of a no-deal Brexit. The Regulations will make a number of changes to primary and secondary legislation to address certain deficiencies arising from the withdrawal of the UK from the EU.
In particular, the Regulations address issues of authorisation (given that the UK would no longer be part of the “country-of-origin” principle under the Audiovisual Media Services Directive (the “AVMS Directive”) on a no-deal Brexit) as well as content standards, European works, listed events, conditional access services, on-demand programme services, unauthorised decoders and gambling.
An explanatory memorandum has been published alongside the Regulations, and is accessible here.
The AVMS Directive
The AVMS Directive is the main piece of EU legislation regulating the audio-visual media market. It provides for freedom of reception and transmission of television and other audio-visual services across the EU. Under the AVMS Directive, audio-visual media services licensed or authorised in the country from which they originate can be broadcast into any other EU member state without further authorisation under the country-of-origin principle.
The AVMS Directive was implemented in the UK pursuant to a number of pieces of legislation, including the Broadcasting Act 1990, the Broadcasting Act 1996 (the “BA 1996”) and the Communications Act 2003 (the “CA 2003”), and certain reciprocal aspects, in particular the country-of-origin principle, will no longer apply in the UK if it leaves the EU without a deal.
The Regulations amend the authorisation system in the UK to a “country of destination” system. Subject to certain exceptions, section 211 of the CA 2003 is amended such that any television services available in the UK must be licensed and regulated by Ofcom (regardless of their origin).
The Regulations also implement the European Convention on Transfrontier Television (the “ECTT”) to continue a system of freedom of reception and transmission, content standards and mutual co-operation between parties to the ECTT. The changes implemented by the Regulations would mean that broadcasters in states that are members of the ECTT will not need a licence from Ofcom to broadcast into the UK. In effect, the country-of-origin principle would be retained in relation to ECTT countries.
UK broadcasters established in EEA countries that are not party to the ECTT will be able to continue broadcasting without an Ofcom licence for six months from exit, giving them time to apply for / acquire a licence.
The AVMS Directive obliges broadcasters to comply with minimum content standards, which are currently contained in the Ofcom Broadcasting Code (pursuant to section 319 of the CA 2003).
The Regulations amends section 319 of the CA 2003 to ensure that the UK's current obligations to take into account the obligations contained in the AVMS Directive (e.g. the ban on tobacco advertising; the protection of minors from harmful content etc.) are preserved. Certain amendments will also ensure that Ofcom takes into account ECTT standards when setting UK standards.
Articles 16 to 18 of the AVMS Directive require broadcasters to reserve a proportion of their transmission time to European works.
The Regulations preserve this obligation by amending section 335 of the CA 2003 to make them international obligations. A notification under this section will require Ofcom to maintain conditions in broadcasting licences to ensure quotas are met.
Part 4 of the BA 1996 makes provision for a listed events regime to ensure that major events of national importance (e.g. the Olympics; the World Cup; Wimbledon etc.) are available on free-to-air television. Broadcasters in the UK are prohibited from purchasing exclusive rights to broadcast an event that another EU member state has published on their list of events in a way that deprives a substantial proportion of the public in the original state from watching the coverage on free-to-air television.
The Regulations amend the BA 1996 to extend this listed events regime to those ECTT countries that are not EEA states. The regime will continue to apply to EEA states.
On-demand programme services
The provisions in Part 4A of the CA 2003 regulating on-demand programme services (which are derived from the AVMS Directive), are retained but with amendments to ensure its continued operation following the exit of the UK from the EU.
In particular, the definition of "on-demand programme service" in section 368A is amended such that, instead of the person with editorial responsibility being "under the jurisdiction of the UK for the purposes of the AVMS Directive", persons with editorial responsibility must have their head office (and editorial decisions must be taken) in the UK. This will ensure that services are not subject to dual regulation in the UK and member states.
Conditional access services
The Regulations amend section 75 of the CA 2003, which will ensure that access-related conditions related to pay television platforms contained in the AVMS Directive (which require access to be fair, reasonable and non-discriminatory) still applies.
The Conditional Access Directive (98/84/EC) (the “CAD”) requires EU member states to prohibit illicit devices that can be used to give unauthorised access to a protected service (e.g. devices used to decode the encryption to service platforms such as Sky). The CAD was implemented in the UK by section 297A and 298 of the Copyright, Designs and Patents Act 1988, and on exit, EU countries would have no obligations in respect of services originating in the UK (although, without amendment, the UK would still have obligations in respect of services originating in the EU). The Regulations consequently amends these provisions so that they only apply to transmissions and services originating in the UK.
There is also a change to sections 328 and 333 of the Gambling Act 2005. These provisions enable the Secretary of State to impose restrictions on the broadcast advertising of gambling services. The Regulations amend these provisions to apply to any broadcaster who falls to be regulated by Ofcom.