October 12, 2020
The new Regulations implement certain provisions of the Audiovisual Media Services Directive (2010/13/EU) made by Directive (EU) 2018/1808 (AVMSD) in view of changing market realities. The new UK Regulations make amendments to the Broadcasting Acts of 1990 and 1996 and the Communications Act 2003.
Audiovisual media services comprise broadcast television and on-demand services (ODS). The main new features of the revised AVMSD include expansion of its scope to encompass dissociable sections of a service, the principal purpose of which is to provide programmes to the general public. The AVMSD also seeks to level the playing field between different types of providers. It removes the distinction between broadcast television and ODS in the application of rules to protect audiences from harm.
The AVMSD also reinforces protection against incitement to violence or hatred and public provocation to commit terrorist offences, and audiovisual media services are required to protect minors from harmful content using measures proportionate to the potential harm, including through selecting the time of the broadcast, age verification tools or other technical measures.
Regulatory authorities must establish and keep an up to date list of providers of audiovisual media services.
Lastly, the scope of measures to increase accessibility to audiovisual media services for disabled persons is widened to encompass all disabilities, not just those concerning impairment of sight and hearing.
Key parts of the new Regulations:
Part 2 makes amendments to both the 1990 and 1996 Acts and to the 2003 Act in respect of broadcast television services.
Part 3 makes amendments to the 2003 Act in respect of ODS. The content standards are contained within Part 3 itself and are amended. The Regulations ensure that standards and advertising rules for ODS are equivalent to those for broadcast television. In addition, there is a new requirement for a 30% quota for European works on services (being works originating from certain European countries, or from qualifying co-productions involving those states), to be assessed over the course of a year. Exemptions are available where the service has a low turnover or a low audience or it is impracticable or unjustified for those subsections to apply because of the nature or theme of the service. There are bespoke provisions relating to the application of Part 3 to the BBC and the Welsh Authority which are amended.
Part 4 of the new Regulations covers video-sharing platform services and inserts a new section Part 4B into the 2003 Act to deal with this. This is because the AVMSD now regulates video-sharing platform services for the first time. Section 368S of the 2003 Act defines a video-sharing platform service as a service providing videos online to members of the public where the person providing the service has general control only over the organisation of the videos on the service, and not over the videos that are available. Part 4 also amends the 2003 Act to implement the AVMSD requirement that providers of video-sharing platform services take “appropriate measures” to achieve specified protection purposes. The protection purposes are:
- to protect minors from content and advertising that might impair their physical, mental or moral development;
- to protect the general public from content and advertising that incites violence or hatred towards people with certain protected characteristics; and
- to protect the general public from content and advertising that is a criminal offence under EU law to circulate (i.e. terrorist content, content containing child sexual exploitation and abuse, and racist/xenophobic content).
The system does not involve direct regulation of the content provided on services, given that service providers have little control over the content, which is uploaded by third party users of the service. Instead, there is regulation of the systems that providers of video-sharing platform services have in place. Accordingly, service providers have to take “appropriate measures” to deliver the protection purposes, such as having in place and applying certain terms and conditions of service for users; establishing and operating flagging and reporting mechanisms, age verification systems, systems to rate the content and easy-to-access complaints procedures; and the provision of parental control systems. However, there are greater controls for content under the direct control of service providers, being audiovisual commercial communications (advertising) that are marketed, sold or arranged by service providers.
The appropriate regulatory authority for Part 4B will, in the first instance, be Ofcom, but Ofcom has the power to designate any body corporate meeting certain conditions to be a co-regulator. The enforcement powers include power to give enforcement notices and to impose a financial penalty. There is power for the regulatory authority to charge a fee to cover the costs of regulation, to demand relevant information, and for Ofcom to produce and publish reports from time to time about compliance by providers with the requirements.
Most of the new Regulations come into force on 1 November 2020. To access the Regulations in full, click here.