Audiovisual Media Services Regulations 2020 Made

United KingdomScotland

The Audiovisual Media Services Regulations 2020 (“the Regulations”) have been made. The Regulations implement the revised Audiovisual Media Services Directive (as contained in Directive (EU) 2018/1808) (“the Directive”). For a discussion of the Directive, please see our Law-Now. The main changes to UK law introduced through the Regulations are to:

  • introduce rules for video-sharing platforms (“VSP”);
  • align the rules on protection from harm for on-demand platform services (“ODPS”) with that of linear TV; and
  • create a quota of 30% share of European works in content catalogues for ODPS, extending the principle already applying to linear TV (where the quota remains 50%).

The majority of the Regulations come into effect in the UK from 1 November 2020 and amend the Communications Act 2003 and Broadcasting Acts 1990 and 1996.

Video-Sharing Platform Services

Under the Regulations, a VSP service is a service where the provider has control only over the manner in which videos are organised rather than the videos available on the platform. The provision of videos to the public must be the service’s principal purpose or an essential function of the service. The European Commission (“the EC”) has published guidance on VSPs, for example providing further detail on this definition. For analysis of this guidance, please see our Law-Now.

The Regulations designate Ofcom as the appropriate regulatory authority in respect of VSP services, although Ofcom retains the ability to delegate this responsibility to another body. As part of its obligations, Ofcom must maintain an up-to-date list of VSP service providers and notify the EC of this list. As a consequence, from 6 April 2021, the Regulations require VSP service providers to notify Ofcom prior to providing a VSP. Providers already operating VSPs prior to 6 April 2021 are required to notify Ofcom by 6 May 2021. Failure to notify could lead to an enforcement notification or financial penalty.

Protection from harm

The Regulations seek to level the playing field between linear TV and ODPS in relation to protecting audiences from harm, removing the distinctions in the previously applicable rules. Both linear TV and ODPS are now required to implement proportionate measures to protect minors from harm, for example through selecting suitable times for broadcasts/transmissions. The Regulations also contain rules promoting stronger rules to protect people against hate speech and incitement to violence.

The Regulations stipulate for VSP service providers to take appropriate steps to achieve specified protection purposes. Such protection purposes include to protect minors from content and advertising that may impair their development and to protect the public from content and advertising that is a criminal offence or might incite violence or hatred. The measures VSP service providers are expected to introduce include providing parental control systems, mechanisms for users to report harmful content and terms and conditions prohibiting harmful material from being uploaded.

Notably, these measures do not involve any direct regulation of content, as required for linear TV and ODPS, reflecting the reduced control VSP service providers are considered to have over their content. When assessing whether the measures adopted by VSP service providers are sufficient, Ofcom will consider whether the measures taken were practicable and proportionate. Failure to do so could lead to the imposition of an enforcement notification or a financial penalty of up to 5% of the service provider’s revenue or £250,000, whichever is greater.

Quota for European works

Another substantial change brought about by the Directive, as implemented by the Regulations, is to impose a requirement on ODPSs to promote European works. Bringing ODPSs in line with the principles applying to linear TV, ODPSs must secure that on average at least 30% of programmes included in their service are European works and ensure the prominence of these European works. There are exclusions from this quota for services which have a low turnover or low audience, or where it would be impracticable or unjustified to apply the quota. Fortunately for UK content producers, works produced in the UK will constitute “European works” even after the transition period, due to the UK’s membership of the European Convention on Transfrontier Television.

The EC has published guidance on the European works quota, as discussed in our Law Nows on the share calculation of European works and the low audience and low turnover exclusions. Ofcom is set to publish its own guidance on the UK interpretation of the European quota, although this is likely to largely reflect the EC’s approach.

Advertising

The Regulations make minor amendments to the UK’s advertising rules. Advertisement of electronic cigarettes and refill containers in sponsorship, product placement and traditional advertising is now prohibited. Advertising on VSPs will be subject to content requirements identical to that of linear broadcasting and ODPSs, due to the high level of control VSP providers have over the advertising.

Signal integrity

The Regulations also introduce a prohibition on any overlay or modification (such as an advert) being imposed on any programme on TV or an ODPS, unless expressly permitted by the media service provider. These provisions are subject to a ‘sunset clause’, meaning they will cease to have effect after the end of the transition period, due to the Government’s belief that there is a lack of evidence that the prohibited behaviour actually occurs in the UK in any case.