In this article, we discuss the listed events regime revisions in Part 1 of the First Reading version of the Media Bill, and how they compare with the listed events regime revisions in the draft Media Bill published earlier this year (“draft Bill”).
Background
When the draft Bill was published, we summarised the changes that were proposed in respect of the listed events regime and the impact assessment in relation to the same. We also discussed the recommendations made by the DCMS Select Committee (the “Select Committee”) in their final report on the draft Bill.
Now that the Media Bill has been published, we discuss below whether the Select Committee’s recommendations were accepted by the Government, what else has changed from the draft Bill, and how this might impact stakeholders.
Select Committee recommendations
By way of brief reminder, the Select Committee recommended: (i) closing the streaming ‘loophole’; and (ii) including provisions to enable digital rights to be included in the listed events regime without the need for further primary legislation.
The Government took on board the Select Committee’s concerns about the streaming loophole. To address this, the scope of the listed events regime has been updated to capture a “relevant service”, a new definition which comprises a wide list of services and, for good measure, ‘catch-all’ language. This change seems to have been positively received by the Select Committee Chair, who welcomed the stronger protections for listed events.
However, the Government has not followed the Select Committee’s call to include enabling language in the Media Bill in respect of so-called “digital rights” . We are still awaiting the Government’s conclusions on the digital rights review, which was launched almost a year ago (see our Law-Now here). Depending on when such findings are published (and the content of such conclusions), the Government may or may not seek to reflect such conclusions in the draft Bill.
Other changes
The Media Bill also includes some changes which were not suggested by the Select Committee.
Changes in respect of multi-sport events
Under the current listed events regime, the practical effect is that – unless Ofcom approves otherwise – Group A events must have live coverage on the television programme service of a public service broadcaster (“PSB”), and Group B events must have highlights coverage on a PSB’s television programme service (click here for the list of events).
One of the key changes proposed in the draft Bill was an expansion of the regime to allow such coverage to also be made available on “designated internet programme services”, being the internet programme services of the BBC and any other PSB designated by Ofcom.
However, one (apparently unintended) consequence of this change was that – in the context of large sporting events that involve different sports and therefore a large number of concurrent events – a PSB might be able to utilise its internet programme service to show a greater quantity of concurrent live coverage than it historically could on its traditional linear channels. It is likely that the practical effect of this would have been to deter non-PSBs (i.e. commercial broadcasters) from wanting to show the same content, effectively making these large multi-sport events the exclusive preserve of PSBs.
The Government has sought to address this issue by introducing a specific provision that applies only to these multi-sport events. This effectively states that Ofcom’s consent for a non-PSB to acquire live rights for a listed event is not needed if a PSB has rights to show “adequate live coverage” . According to the explanatory notes accompanying the Media Bill, the aim of this amendment is to ensure that the type of content-sharing partnership arrangements that have historically been in place between PSBs and non-PSBs for these multi-sport events may continue as they do now.
Notably, Ofcom is given the power to make regulations for determining what “adequate live coverage” means for these purposes. This reflects a similar approach in the current regime as it applies to Group B events, under which Ofcom can make regulations for determining what constitutes “adequate alternative coverage”.
Provision of information
The Media Bill also introduces a new power for Ofcom to require (both current and previous) providers of relevant services, and any person who appears to Ofcom to have relevant information, to provide Ofcom with any information that Ofcom requires in order to be able to carry out its functions in relation to listed events. Failure to provide information can lead to a penalty of up to £250,000.
Further clarifications
The Media Bill also makes several clarifications: for example, any contract entered into prior to the commencement of the new provisions will be governed by the old listed events regime.
The CMS view
The response to the Select Committee’s recommendations is relatively unsurprising and, in our view, should not have an impact on stakeholders, because: (i) the Government has closed a loophole which has not really been exploited to date; and (ii) the Government has not included enabling language in respect of a digital rights review on which it is yet to publish its conclusions.
More surprising, particularly given the fact that this was not a point specifically addressed in the Select Committee’s recommendations, is the change in respect of multi-sport events. This is significant and clearly designed to encourage the continuation of the type of co-operation and commercial partnerships between PSBs and non-PSBs that we have seen in the recent past in respect of the transmission of listed multi-sport events. Although the apparent intention behind this is only to maintain the status quo, the devil of how this will work in practice will of course be in the detail.
We will be watching this Media Bill closely as it passes through Parliament, so keep an eye out for our updates on our dedicated CMS Media Bill webpage. If you would like to discuss any aspect of the Media Bill or how it may affect you, please get in touch.
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