Government publishes technical notice on broadcasting and video on demand if there is no Brexit deal

The notice explains that if there is no deal, the Audiovisual Media Services Directive (2010/13/EU) and the “country of origin principle” (according to which audiovisual media service providers are only subject to the jurisdiction of one EU country) will no longer apply to services under UK jurisdiction that are broadcast into the EU.  This is because the UK would be classified as a third country.

Recital 54 of the AVMSD states that EU countries are free to take whatever measures they deem appropriate with regard to audiovisual media services that come from third countries, provided the measures comply with EU law and the international obligations of the EU.

However, in the absence of the AVMSD regulatory framework, the Council of Europe Convention on Transfrontier Television (ECTT) (to which the UK is a signatory along with 19 others) would continue to apply and “may have increased relevance”.

If media service providers rely on the ECTT for distribution of a service in a no-deal scenario, the notice says that they would “need to be mindful” of the fact that the ECTT does not have the same enforcement mechanisms as the AVMSD.

Before exit in March 2019, the notice advises media service providers to assess on a case-by-case basis whether their current licence would continue to be accepted in the EU countries where the service is made available, and seek independent local advice if necessary.

If the service is a UK service, and not receivable in the EU, no action needs to be taken.  The Ofcom licence would still be valid on exit.

If the service is available in the EU and only available in one or more of the 20 ECTT countries, freedom of reception should be permitted in accordance with ECTT.  However, the notice advises seeking local legal advice to check how national law deals with ECTT obligations.  Ofcom licences should still be recognised, but the process may depend on national law.

If a service is available in the EU and available in one or more of the seven non-ECTT countries (Belgium, Denmark, Greece, Ireland, Luxembourg, The Netherlands and Sweden) providers would need to ensure that the service is correctly licensed (or authorised) on exit day.  How this is done is dependent on a number of factors as there is a hierarchy of jurisdiction in the AVMSD, which determines which EU country regulates the service.

If the service is available in the UK and in one or more of the seven EU countries not party to the ECTT, providers may need two licences.  The Ofcom licence will cover services receivable in other ECTT countries, but not in the seven non-ECTT countries.

Providers who take no action are, according to the notice, likely to be viewed as third-country broadcasters broadcasting into the EU.  Under the AVMSD, EU countries would be free to impose, through national laws, further conditions on transmitting services into their territories, although subject to the provisions of the ECTT.

The notice also covers head office location and what a provider should do if it does not have a significant workforce within a EU country.

The Government says it will be publishing more information and instructions in the coming months.  To read the technical notice in full, click here.