The Online Safety Bill is not the only way that increased online protections are coming to life. The UK government believes that no matter how UK viewers choose to watch TV-like content (including through online access, which is now the main way of watching TV and films for nearly half of UK adults), it should be subject to similar standards.
So, as part of its broader vision and reforms for the broadcasting sector, the UK government wants to enact better protections from harmful material and ensure that UK viewers will be able to better air complaints and concerns to Ofcom.
What does this mean for VOD providers?
The government wants to formally bring "large" non-UK based TV-like VOD services under Ofcom jurisdiction for the first time. Not only this, but a two-tiered VOD regulatory system is on the horizon, as well as a new VOD Code.
Jurisdiction
The Secretary of State will designate the non-UK VOD providers that will be caught following an Ofcom report. Audience harm and other metrics like overall size and UK audience members will have to be considered. The government expresses deep concern here that UK citizens specifically (as opposed to UK viewers who may not necessarily be UK citizens) do not currently have adequate regulatory protections.
A jurisdictional rule of thumb for non-UK based VOD providers is to ask themselves:
- "do I actively target and profit from UK audiences?", and
- "do I provide a large TV-like VOD service?"
The government has not set exact thresholds or parameters yet as to what "large" means. Again, the Secretary of State will designate which VOD providers are "large" following an Ofcom report. Apple TV+ and Netflix are given as examples of the "largest" services that directly target UK audiences. (The government makes the point that these two services are not currently UK-regulated but – following this reform – will almost certainly be a part of the services that will "rightly" fall under Ofcom's enhanced VOD jurisdiction.) If the market substantially changes, the Secretary of State can ask Ofcom for subsequent reports to further designate any new "large" VOD providers.
The government acknowledges that, in practice, this change might have little impact since larger non-UK based services may adhere to UK regulations and Ofcom decisions and directions voluntarily anyway (which is at odds with its deep concerns that are perhaps overstated), but the government still thinks it important for Ofcom to formally have sufficient regulatory powers. The government also acknowledges that most content on larger non-UK services does not seem to currently pose high audience risks (because audience protection measures are already in place), but that is not to say that those risks cannot materialise in the future.
The two VOD tiers
Both:
- "large" UK-based VOD services, and
- "large" non-UK based but UK-targeting and UK-profiting TV-like VOD services
will be treated the same and will become the upper VOD tier. Ofcom will keep a publicly available list of these services.
Conversely, "smaller" and lower-risk VOD services will continue under the existing rules and will become the lower VOD tier. But the smaller services can be elevated to the "large" upper tier if they pose an increased audience risk (examples given are religious and news content).
The new VOD Code
Except for BBC iPlayer, VOD services are not currently subject to Ofcom's Broadcasting Code. The government believes that viewers are more likely to presume or expect higher regulation to apply to larger VOD services and is also concerned that wider broadcasting protections do not currently apply to the VOD rules (such as protecting audiences from harm caused by misleading health advice, pseudoscience documentaries on climate change and COVID misinformation). To address this, the government wants to introduce a new VOD Code. Ofcom will have to keep the new VOD Code under continuous review and make appropriate changes to it.
The VOD Code will put large VOD providers under the same or similar obligations as traditional broadcasters, including effectively handling complaints. Ofcom will have an ongoing duty to assess the VOD providers' audience protection measures (these may include non-compulsory measures like age ratings, PIN codes and warnings). Ofcom's regulatory tools (like information gathering and enforcement powers) will also be broadly aligned with existing broadcasting regulation while taking into account necessary adjustments (for example, the VOD-equivalent last resort sanction of revoking a licence to broadcast will be restricting the VOD services' ability to appear on UK platforms).
The notification system
The two-tiered VOD system will continue to work through notifications to Ofcom (as opposed to Ofcom licensing). There will be some changes to improve audience protections but, regardless of whether Ofcom is notified, it will continue to have jurisdiction over the VOD services in scope.
Next steps
The government will work with Ofcom to further develop the regulatory VOD framework and legislation will be pursued when Parliamentary time allows.
