Media

Regulatory and institutional structure

Summarise the regulatory framework for the media sector in your jurisdiction.

Broadcasting is regulated by the legislation set out in the above question with additional regulation from the Broadcasting Act 1990 (as amended by the Broadcasting Act 1996 and the Communications Act 2003 (CA 2003)). There have also been some minor changes to the regulatory regime through the Digital Economy Act 2017.

EU Directives that have been transposed into UK law in advance of the end of the Brexit transition period (ie, 31 December 2020) will be effective as UK law. The government has confirmed that Office of Communications (Ofcom) licences will continue to apply after the transition period so that broadcasters can continue to broadcast to the United Kingdom without applying for a new licence. UK broadcasting services available in the European Union may need two types of licences depending on the countries to which they broadcast (one for services receivable in European Convention on Transfrontier Television (ECTT) countries and one for services for non-ECTT countries). Services from countries that have signed and ratified the ECTT need no licence in addition to the licence from their home country. Services from countries that have not signed and ratified the ECTT will need a licence from Ofcom to be received in the United Kingdom.

Ownership restrictions

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Restrictions as to who can hold a broadcasting licence and control a broadcaster are set out in both the 1990 and 1996 Broadcasting Acts; these were revised by CA 2003, which relaxed these provisions. If at any point there is a change in control over the licence or the owner of the licence, they must notify Ofcom, which will ensure that no person disqualified from holding the licence has taken control. Ofcom will also undertake a review to ensure that change of control will not negatively affect the programme content. If Ofcom does believe certain aspects of the programming may change, it could vary the licence.

Those who will be disqualified from holding a broadcasting licence will generally fall under two categories: religious or political groups and advertising agencies.

Although religious bodies are generally restricted from holding a broadcasting licence, there are exceptions to this rule. They may own local analogue radio and satellite, cable broadcasting, local digital sound programme, national digital sound programme, television restricted service, digital programme service and digital additional service licences.

Licensing requirements

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

BBC

The main document that regulates the BBC is the founding charter. The revised charter came into force on 1 January 2017. This revised charter made multiple changes to the regulation of the BBC. A unitary board was formed to replace the BBC Trust and BBC Executive. This new board ensures that the BBC’s strategy, activity and output are in the public interest. From 2017, the BBC fell under the remit of Ofcom.

 

Channel 4

The most recent licence for Channel 4 came into effect in January 2015 and was varied in December 2017 following a 2014 spectrum management decision by Ofcom. Channel 4 previously operated on a digital replacement licence that replaced its original analogue broadcasting licence in 2004. The most recent licence keeps things essentially the same, although the 2017 variation provides for the clearance of the 700MHz band for mobile data use by 1 May 2020 (note that 700MHz DTT Clearance Programme was completed on 20 August 2020).

 

Channels 3 and 5

The most recent licences for both Channels 3 and 5 came into effect in January 2015 and were varied in December 2017 following a 2014 spectrum management decision by Ofcom. Channels 3 and 5 previously operated on digital replacement licences, which came into effect in 2004 and replaced the analogue Channel 3 and 5 licences. The current licence includes amendments to the regional programming commitments in Channel 3 licences for English regions; and creates a more localised Channel 3 news service, while also lowering obligations. The 2017 variations also provide for the clearance of the 700MHz band for mobile data use by 1 May 2020 (note that 700MHz DTT Clearance Programme was completed on 20 August 2020).

 

Digital television programme services

Other than those provided by Channel 3, 4 or 5, digital television programme services (DTPS) licences cover the provision of television programmes services. The broadcasts covered will be in digital form for general reception on a digital television terrestrial multiplex. They will also cover ancillary services such as subtitling.

 

Digital television additional services

Digital television additional services licences cover television services text and data services including teletext and electronic programme guides. These are not covered by DTPS licences as they are not considered an ancillary service or digital television programme services. They are broadcast in a digital form on a digital television multiplex.

 

Television licensable content services

A television licensable content services (TLCS) licence covers services broadcast from a satellite, distributed using an electronic communications network (ECN) or electronic communication service made available by a radio multiplex. Its principal purpose must be the provision of television programmes or electronic programme guides or both. The service must also be available for reception by members of the public.

Services such as Channels 3, 4 and 5, covered by the other licences outlined in this section, do not require a TLCS licence. Internet services, pure video-on-demand (VOD) services and two-way services, such as videophone, do not require a TLCS licence.

A new local television licence regime was created as part of the Local Digital Television Programme Services (L-DTPS) Order 2012. An L-DTPS will have sufficient capacity at its location for one standard-definition digital service on the local multiplex. These are operated on Multiplex L with 29 L-DTPS licences awarded.

Under the Broadcasting Act 1990, Ofcom must not grant a licence to any person unless it is satisfied that the person is a ‘fit and proper’ person to hold it and is not disqualified by statute from holding the licence. The proposed service cannot be contrary to the standards objectives laid out in CA 2003.

The complete Ofcom tariff table is available on its website.

 

Radio

Under CA 2003, Ofcom has the authority to regulate the following concerning independent radio services:

  • analogue sound broadcasting services at a national or local level;
  • radio licensable content services (services provided in digital or analogue form, broadcast from a satellite or via an ECN, for use by the public and consisting of sound programmes);
  • additional radio services (a service consisting of the sending of signals for transmission by wireless telegraphy using space capacity within signals carrying any sound broadcasting service);
  • digital radio multiplex services;
  • digital sound and digital additional sound services at both a national and local level (text and data services not intended to be related to programming); and
  • radio restricted services (licences intended to cover small-scale community uses).

 

Fees, duration and permissible content vary depending on the type of licence to be granted. Ofcom suggests that the easiest way to set up a radio service is to start an online radio station. Ofcom currently does not regulate online-only radio services which, therefore, do not require a licence from Ofcom.

Foreign programmes and local content requirements

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

CA 2003 contains a limited number of provisions covering the broadcasting of foreign programmes. Regulations set out in Directive 2010/13/EU (Audiovisual Media Services) (as amended by Directive (EU) 2018/1808 and incorporated into the Broadcasting Code), require that, where practicable, European production (referred to as European Works) should account for over 50 per cent of the transmission hours of each broadcaster established in that market (subject to certain exclusions).

The amending Directive (EU) 2018/1808 provided, among other things, for an increased European Works content quota for on-demand services, raised from 20 per cent to 30 per cent. The United Kingdom was required to fully implement the amending Audiovisual Media Services Directive despite its exit from the European Union, as the date for implementation (19 September 2020) fell before the end of the Brexit transition period. Despite the United Kingdom’s exit from the European Union, works produced in the United Kingdom are still considered to fulfil the definition of European Works, as European Works are defined by reference to production by ECTT countries, rather than EU member states. As a result, there may not be a significant downturn in demand for UK-produced works, as they will continue to help fulfil European Works quotas post-Brexit.

Also, the Secretary of State maintains powers under CA 2003 to disallow foreign television and radio should it fall foul of provisions in CA 2003 (eg, those that offend against taste or decency). Regarding online and mobile content, there are no equivalent foreign restrictions.

CA 2003 gives Ofcom the power to require local programming to be included in the output of broadcasters where appropriate. An example of this is in Ofcom’s inclusion in every Channel 3 licence of a condition requiring a regional channel with programmes targeted at persons living in the area.

Advertising

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

Ofcom’s role under CA 2003 is to regulate advertising on broadcast media to ensure advertising rules and standards are met. These rules and standards can be found across several instruments. Primarily, broadcast media must follow the UK Code of Broadcast Advertising (the BCAP Code), which covers misleading advertising, protection of children, harmful and offensive content, a ban on political advertising, and rules on environmental claims, to name but a few. Additional rules are contained in Ofcom’s Broadcast Codes, which cover issues such as taste, decency and product placement. Enforcement of the aforementioned rules, while ultimately Ofcom’s responsibility, has been largely contracted out to the Advertising Standards Authority and its associated bodies.

One of the key amendments to the Audiovisual Media Services Directive, which were approved by the European Parliament in October 2018, was to introduce new rules concerning the proportion of daily broadcasting time that would be taken up by advertisements. Under the new rules, advertising can take up a maximum of 20 per cent of the daily broadcasting period between 6.00am and 6.00pm, but broadcasters can adjust their advertising slots within this time period so long as they do not exceed the total 20 per cent limit. The new rules also introduce a prime-time window between 6.00pm and midnight, during which advertising will also only be allowed to take up a maximum of 20 per cent of broadcasting time.

Product placement, while allowed in films, series made for television, sports programmes and light entertainment programmes (both foreign and national), is prohibited in news and children’s programmes. This was a change brought in during Ofcom’s February 2011 change to the Broadcasting Code and includes rules requiring special logos to be shown at the beginning and end of the programme, as well as at the end of each advertising break to signify the use of product placement.

There are strict rules on advertising and product placement in children’s television programmes and content available on VOD platforms introduced under the amendment to the Audiovisual Media Services Directive approved in November 2018.

In November 2020, Ofcom published a consultation on proposals for amendments to the Broadcasting Code. Following this, Ofcom released a statement in December 2020, setting out the amendments Ofcom are making in light of stakeholders’ responses to the consultation. These amendments include changes to the rules in the Broadcast Code to reflect revised product placement restrictions resulting from the Audiovisual Media Services Regulations.

Online advertising is subject to the CAP Code which imposes similar standards and rules. The CAP Code also contains the rules that apply to VOD services. While there are some differences between the codes, the BCAP Code states that BCAP works closely with CAP to provide, as is practicable and desirable, a consistent and coordinated approach to standards-setting across non-broadcast and broadcast media. The CAP Code was amended in November 2018 to align with Regulation (EU) No. 2016/679 (General Data Protection Regulation) and provide rules and guidance in respect of the use of data for direct marketing generally and the rules on the transparency and control of data collected and used for the purpose of delivering ads based on web-users’ browsing behaviour.

In June 2019, a new rule was added to the CAP Code banning advertisements that contain gender stereotypes in both broadcast and non-broadcast media (including online and social media). Several adverts have since been banned following the introduction of the new rules owing to their containing harmful gender stereotypes, including advertisements for household name brands, such as Mondelez and Volkswagen.

In December 2020, CAP and BCAP issued a statement on the CAP and BCAP Codes following the Brexit transition period. Broadly, the statement outlines the legislative framework created to ensure legal continuity after the end of the transition period and advises advertisers that all EU-derived legislation in force at the end of the transition period remains in force unless it is subsequently appealed.

Must-carry obligations

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

Under CA 2003, public service broadcasters, including (but not limited to) the BBC, ITV, Channel 4 and Channel 5, must provide public service broadcasting (PSB) channels to all the main distribution platforms. As a result, such channels have a right to be carried on all the main platforms on a free-to-air basis. Ofcom has a responsibility under CA 2003 to review and report on the extent to which the PSBs have fulfilled the purposes of PSB and make recommendations regarding how to maintain and strengthen the quality of PSB in the future, with reviews taking place every five years. The purposes of PSB in the United Kingdom are:

  • to provide a variety of programmes on a wide range of subject matters;
  • to provide television services that are likely to meet the needs and interest of as many different audiences as practicable (as well as those of the actual available audiences); and
  • to maintain high standards in respect of programme content, development and skill, and editorial integrity.

 

In February 2020, Ofcom published Small Screen: Big Debate, a review of PSB covering 2014 to 2018. It noted that live broadcast viewing has declined over the period due to the increased use of online and on-demand services. In response, the report noted that PSB broadcasters are increasing their online and on-demand services to try and meet the expectations of their audience, but that, despite these efforts, they have not been able to fully recover from the loss of live broadcast viewers, especially among younger generations. Revenue to PSB channels, both in terms of advertising and the BBC licence fee, have fallen by 3.8 per cent and 4 per cent per year, respectively, over the 2014 to 2018 period. In December 2020, Ofcom published a consultation on the findings from its Small Screen: Big Debate review. The consultation period ended in March 2021, and Ofcom is now considering responses and feedback which will inform their formal recommendations to the UK government, to be published in the summer of 2021.

Alongside this decline in viewership of PSB channels, the debate concerning the television licence fee has increased. Although the existence of the BBC licence fee is guaranteed until 2027 due to the BBC’s Royal Charter, the BBC and the government have formally started negotiations to set the level of the licence fee for 2022 to 2027. These negotiations follow the outcome of a government consultation launched in February 2020 on the decriminalisation of television licence evasion, instead proposing the introduction of an alternative civil enforcement scheme. The consultation period is now closed, and the government published their response to the consultation in January 2021. Most of the responses gave an opinion that opposed decriminalisation. However, the government has set out that it remains concerned that a criminal sanction for television licence evasion is increasingly disproportionate and unfair in a modern PBS system. While no final decision has been taken, the government intends to keep the issue of decriminalisation under active consideration.

Separately, since 1 June 2020, free television licences are no longer automatically granted to the over-75s – instead, only those over 75 in receipt of pension credit are eligible for a free television licence.

Regulation of new media content

Is new media content and its delivery regulated differently from traditional broadcast media? How?

New media content is regulated under the same broadcast content rules and legislation as broadcast media, so, for example, internet protocol television services simply require the same licences as they would for the same content offline. Following the Audiovisual Media Services Directive, the United Kingdom must regulate VOD content and advertising. Ofcom brought regulation of VOD in-house in January 2016 to ensure the efficient and effective control of regulating VOD programme services. Rules include several minimum content standards, and on-demand services are subject to the UK Code of Non-Broadcast Advertising, Sales Promotion and Digital Marketing. The amendments made to the Audiovisual Media Services Directive in November 2018 extend its scope to video-sharing platforms in addition to VOD providers, such as Netflix and YouTube. A report by Plum Consulting, commissioned by the Department for Culture, Media and Sport, concluded in February 2020 that six video sharing platforms were, or could potentially be considered to be, under the jurisdiction of Ofcom under the provisions of the amended Directive.

In December 2020, the Department for Culture, Media and Sport published its full response to the consultation on the Online Harms White Paper, which covered online safety and regulation of social media. The White Paper proposed a new statutory duty of care to ensure companies take more responsibility for online user safety and tackle harm. It proposed that companies within the scope of the duty would be social media platforms, file-hosting sites, public discussion forums, messaging services and search engines. Compliance with this duty of care would be overseen by an independent regulator. Following consultation, the full government response confirmed that Ofcom was named to take on this oversight role, in addition to its existing remit. Also, the government proposed developing a new online media literacy strategy.

In May 2021, the UK government published its draft Online Safety Bill, granting Ofcom new responsibilities as the regulator for online harms. Under the draft bill, Ofcom will be given the power to fine companies up to £18 million, or 10 per cent of qualifying revenue, if they fail in their new duty of care.

Digital switchover

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

The UK digital television switchover commenced in 2008 and was completed in 2012. The 600MHz band was auctioned in 2013 and the remaining freed analogue television channels have yet to be allocated.

Under the Digital Economy Act 2010, the Secretary of State was given the power to nominate the digital switchover for radio broadcasting. The UK government set the following criteria to be met before the switchover could commence:

  • digital listening must reach 50 per cent of all radio listening (including via television and digital audio broadcasting (DAB));
  • national DAB coverage must be equal to analogue coverage; and
  • local DAB reaches 90 per cent of the population.

 

Ofcom’s Communications Market Report, published on 30 September 2020, indicated that DAB radio listening had reached 58 per cent.

Digital formats

Does regulation restrict how broadcasters can use their spectrum?

Although licences may set out certain restrictions in terms of information requirements and governing codes or guidance, broadcasting licences are not restrictive in terms of how the spectrum may be used.

Media plurality

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

In its fifth report to the Secretary of State, dated 23 November 2018, Ofcom stated its statutory duty to review, at least every three years, the operation of Parliament’s ‘media ownership rules’ as found under section 391 of CA 2003. Ofcom notes that the rules aim to protect the public interest by promoting plurality and preventing undue influence by any one, or certain types of, media owner.

There are currently four broad media ownership rules that Parliament has put in place in the United Kingdom (and which are set out in Ofcom’s November 2018 report to the Secretary of State):

  • the national cross-media ownership rule: preventing a newspaper operator with a 20 per cent or more market share of newspaper circulation from holding a Channel 3 licence or a stake in such a licence of more than 20 per cent; and preventing the holder of a Channel 3 licence from holding an interest of 20 per cent or more in a large national newspaper operator;
  • the Channel 3 appointed new provider rule: requiring regional Channel 3 licensees to appoint a single news provider among them;
  • the Media Public Interest Test: which allows the Secretary of State to intervene in a merger involving a broadcaster or newspaper enterprise, where that merger meets certain value or market share requirements. The Secretary of State may choose to issue an intervention notice triggering a review if a merger might result in harm to the public interest; and
  • the Disqualified Persons Restrictions: where certain bodies or persons must first be approved by Ofcom before holding certain kinds of broadcast licence to prevent undue influence over broadcasting services.

 

Intervention by the Secretary of State on the grounds of public interest under the EA includes the need for accurate presentation of news and free expression of opinion in newspapers, the need for a plurality of persons who control the media and the need for UK-wide broadcasting that is both of high quality and likely to appeal to a variety of tastes and interests. Where a public interest ground applies, the Secretary of State need not assess as to whether there would be a substantial lessening of competition by the merger (as would otherwise be required).

Detailed guidelines from 2004, by the former Department for Trade and Industry, set out those situations where the Secretary of State may intervene in merger situations involving media organisations, including cross-media mergers (where there is a merger between a newspaper and a Channel 3 or 5 licence holder, for example). The Secretary of State may intervene where the merger involves entities from outside the EEA. The policy is not for the Secretary of State to intervene where the mergers are related to satellite and cable television and radio services.

In an exercise of these powers, in June 2019, the Secretary of State issued a Public Interest Intervention Notice concerning the acquisition of shares in Lebedev Holdings Ltd (LHL) and International Digital News and Media (IDNM), resulting in Ofcom being required to investigate the transactions. LHL is the majority shareholder in Evening Standard Limited, which is responsible for the publication of the Evening Standard newspaper and related online services, while IDNM is responsible for the running of The Independent, the online-only news publisher. The grounds for the issue of this Notice were the need for accurate presentation of news and the need for free expression of opinion. Following its enquiries, Ofcom concluded that a reference to the Competition and Markets Authority (CMA) was not warranted on either ground.

Key trends and expected changes

Provide a summary of key emerging trends and hot topics in media regulation in your country.

Brexit

As with telecoms, broadcasting regulation is founded on EU law. Although the UK government has not brought in any significant divergent measures, the United Kingdom’s exit from the European Union has caused some changes to broadcasting licence requirements for the United Kingdom and some EU member states (made by the Broadcasting (Amendment) (EU Exit) Regulations 2019). The most significant change to the licensing requirements relates to the country-of-origin principle, which underpins European broadcasting regulation. Under this principle, a broadcaster regulated in one EU member state is not required to apply for an additional licence to be able to transmit in another member state.

Following the end of the Brexit transition period, the United Kingdom is no longer a party to the Audiovisual Media Services Directive and this principle no longer applies. Despite the Audiovisual Media Services Directive having been transposed into UK law, the country-of-origin principle would require reciprocity from other EU member states to continue to operate. However, the ECTT continues to apply. The ECTT was signed by 20 EU member states, as well as the United Kingdom, and allows freedom of reception for services among the signatory states. Therefore, UK broadcasters regulated by Ofcom will continue to be allowed to broadcast in ECTT signatory states, as will ECTT-regulated broadcasters in the United Kingdom. The additional licensing requirements will therefore apply only concerning the EU member states that have not signed the ECTT, which includes the Netherlands and Ireland (although there are separate provisions in the Good Friday agreement applicable to certain Irish broadcasters). UK broadcasters are now required to apply for additional licences for their service to be made available in these states – the same applies to any service providers from these states wishing to broadcast in the United Kingdom, that will be required to obtain an Ofcom licence.

Although the ECTT may help to mitigate the effect of Brexit on broadcasters to some extent, it cannot be enforced in the same way that the Audiovisual Media Services Directive previously could – while there is a standing committee to address disputes, and provision for arbitration in the convention, these methods have seldom been used.

One further limitation of the ECTT that should also be taken into account is its more limited scope – it does not cover online streaming services, which continue to be regulated under the Audiovisual Media Services Directive in EU member states.

 

Digital Services Tax

The introduction of a Digital Services Tax (DST), effective from 1 April 2020, was announced in the budget held on 11 March 2020. The DST is levied at 2 per cent on the revenues of companies such as search engines, social media services and online marketplaces that derive value from UK users. The introduction of the DST was intended to remedy the perceived misalignment between the place where company profits are taxed and the place where value is created. The DST is intended to be in place only until an appropriate international solution is in place to better address the issue.

It is anticipated by the UK government that the DST will affect primarily large multinational businesses, as the DST only applies where a group’s worldwide revenue from digital activities exceeds £500 million, of which £25 million must derive from UK users. There is, however, a £25 million allowance, and the DST will only be levied on UK-generated revenues over £25 million.

The Exchequer has estimated that the measure will raise £280 million in 2020–21, rising to £515 million in 2024–25. However, the impact that the introduction of the DST could have on the UK–US trade deal to be negotiated in the wake of Brexit remains to be seen.

Law stated date

Correct on

Give the date on which the information above is accurate.