GK Consultant and resident specialist on digital policy, Robert Blackmore, takes a look at the recently published Draft Media Bill, and discusses one of the Bill’s most controversial aspects.
Little fanfare met the long-awaited publication of the Media Bill during the early hours of March 29th . This was perhaps not a surprise – it was, after all, published in draft form. Furthermore, the Government’s previously publicised decision to U-turn on its highly contentious proposal to privatise Channel 4 certainly took the ‘sting’ out of its release.
However, the importance of the legislation cannot be understated, and nor should the potential for it to become another front in the Government’s delicate attempt to balance freedom of expression with the ‘safety’ of its citizens.
But first, why is the Government proposing an update to media law?
The draft bill represents the Government’s understandable desire to refresh the rules that govern a broadcasting landscape that has altered dramatically since New Labour’s 2003 Communications Act.
Back in 2003, notwithstanding the ascendancy of Sky Television and its monopoly over coverage of the Premier League, the linear model of television consumption still dominated, and few questioned the prominence of the Public Sector Broadcasters (PSB), namely, the BBC, ITV, STV, S4C, Channel 4 and Channel 5. Ofcom define these broadcasters as those that deliver “impartial and trusted news, UK-originated programmes and distinctive content.”
Two decades on and the market has been transformed. 75% of households use online Video-on-Demand (VOD) platforms, such as Disney+ and Netflix, with few viewers limiting their media habits only to linear television channels. This, combined with the consolidation of the global broadcasting market by global media entities in recent years, has raised questions regarding whether PSBs are so “prominent” after all.
The draft bill proposes several solutions to the so called ‘crowding-out’ of PSBs. Some are relatively minor, such as compelling set-top boxes and streaming sticks to provide PSB VOD services with priority in terms of discoverability, while others more substantial, like allowing online programmes to count towards PSBs meeting their public service remit.
However, one proposal has proven particularly contentious and far-reaching.
With echoes of the Government’s attempt to reign in ‘global big tech’ through the Online Safety Bill, written into the draft Media Bill is an extension of Ofcom’s remit that would grant it regulatory oversight of global (‘Tier One’) VOD platforms with a UK customer base, likely to include the likes of Netflix and Amazon.
This would take the form of a new code of practice that would seek to protect audiences from ‘harmful content’ and place impartiality requirements on non-news programmes. Indeed, for the first time, a UK viewer would be able to file a complaint against a non-PSB VOD platforms, which if upheld, could lead to Ofcom issuing fines of up to £250,000.
For global VOD platforms that operate in the UK, such a proposal is an unwelcome development, and an example of what they would describe as ‘government overreach’.
At a recent Westminster Forum event, Benjamin King, UK and Ireland director of public policy at Netflix, stated this proposal could have a “chilling effect” on the provision of its service, and undermined “freedom of expression”. He cited that it would significantly undermine “Netflix’s appetite to make available our many documentaries, which are so beloved by UK members”. He also called for legislators to carefully reflect on attempts to transpose UK regulations across international content.
Mr King will have welcomed, therefore, that the publication of the Bill was in draft form. This (relatively unusual) step allows the Bill’s text to receive pre-legislative scrutiny, and a potential re-drafting, prior to its formal introduction to Parliament.
Legislators are not naïve to the concerns of global VOD platforms. The Culture, Media and Sport (CMS) Committee immediately launched an inquiry into the draft bill in April. Amongst the questions the Committee highlighted in its terms of reference was: “Do the proposals in the draft Media Bill create any risks to UK’s desirability as a market for VoD content?” Interested parties have been granted the opportunity to feed into the inquiry via written evidence that will support the Committee in their scrutiny of the draft bill.
For their part, PSBs have broadly welcomed the proposals, with ITV crediting the draft Bill for providing them with the confidence to apply for a 10-year renewal to its PSB licence. However, they are also impatient for the Government to allocate parliamentary time to the Bill.
So what are the next steps for the draft Bill?
While it is believed that the Department for Culture, Media and Sport is very keen for the Bill to be formally introduced in the 4th (and final) session of this Parliament, the legislative timetable is already highly concentrated. Indeed, if following the pre-legislative scrutiny the Government decides that major changes to the draft Bill are necessary, publication this side of an election (expected in 2024) could, ultimately, prove difficult.