What's the issue?
The government's long-awaited Media Act 2024 received Royal Assent in the parliamentary "wash-up" process before the UK General Election and became law on 24 May 2024. The Act extends the current prominence regime for public service broadcasters (PSBs) beyond linear TV to include online viewing. According to then Culture Secretary Lucy Frazer's Ministerial Statement at the time of introducing the draft Media Bill in March 2023, the Act will "[m]ake sure public service broadcast content is always carried and easy to find for UK audiences on connected devices and major online platforms, including on Smart TVs, set-top boxes and streaming sticks, so audiences can easily access this content in the way that best suits them".
In this article, we examine the scope and requirements of the new regime, and whether it strikes the right balance between PSBs' interests and TV services' ability to innovate to serve their customers. For the Act's requirements for VOD services and voice-activated radio selection services, see our articles here.
Scope of the new regime
PSBs
The Act attaches to "internet programme services" (IPSs) provided by the BBC, another PSB, or their subsidiaries. Except in the case of the BBC, the service will need to be designated by Ofcom to be covered. This means that BBC iPlayer will automatically be covered under the Act, but other on-demand programme services provided by PSBs, like ITVX, Channel4, My5 and Britbox, won't. Instead, they will need to sufficiently fulfil a public service remit in order to be designated. Only services whose principal purpose is the provision of visual programming are in scope, which excludes services like BBC Sounds that primarily offer audio content.
TV services
The Act attaches to designated "television selection services" (TVSSs), meaning services:
- provided over the internet
- in connection with "internet television equipment" (which will be specified in secondary legislation)
- that consist of the presentation of internet programme services, and
- that enable users to select between internet programme services or the programmes within them, and access the service or programme selected.
The breadth of services potentially affected will depend on how "internet television equipment" is defined in secondary legislation, which will be informed by recommendations made by Ofcom. This will likely include the types of equipment specified by the then Culture Secretary in her Ministerial Statement when introducing the draft Media Bill in 2023, namely Smart TVs, set-top boxes and streaming sticks. It is less clear whether non-TV-specific equipment like computers, smartphones and tablets will be included, and therefore whether TV aggregation services that are browser- and mobile-only could fall within scope.
In order to be regulated under the Act, TVSSs need to be designated by, or of a type specified in, such secondary legislation. The precise services in scope are therefore still unknown. Where secondary legislation sets out a description of the types of services designated, services falling within the description must give notice to Ofcom. The requirements of the Act apply to TVSSs so far as they are made available for use by members of the public in the UK, regardless of where the service is provided from.
'Must Offer'/'Must Carry' and prominence obligations
PSBs
PSBs other than the BBC must offer their designated IPSs to be included in regulated TVSSs, subject to agreeing terms with TVSS providers, and do their best to ensure that arrangements are entered into and kept in force so that their IPSs are included in those TVSSs.
In doing so, they will need to act consistently with the following "agreement objectives":
- that the IPS is given an appropriate degree of prominence within the TVSS, including appropriate prominence being given to public service remit content and channels
- that the arrangements made do not adversely affect the ability of the PSB to fulfil its relevant public service remit or public purposes, and
- that the arrangements made do not disproportionately restrict how a TVSS provider may make innovations in the ways that users may select and access IPSs or programmes included in them.
The detail of how PSBs and TVSSs may act consistently with agreement objectives will be set out in guidance published by Ofcom, and the guidance is therefore likely to be the most crucial piece of the new regime. In the case of the BBC, acting consistently with agreement objectives will be treated as meaning carrying out its comparable duties under the BBC Charter and Agreement.
TV services
TVSS providers must enter into and keep in force arrangements to include each IPS in their TVSSs. Like PSBs, they must act consistently with the "agreement objectives". They are also subject to a separate obligation to ensure that their services present IPSs, and the public service content and channels within them, to users with an appropriate degree of prominence. This appears to duplicate the "agreement objective" on prominence.
Ofcom will again be tasked with issuing a code of practice describing recommended actions for compliance, which will provide a safe harbour rather than mandatory requirements. Ofcom is required to publish a draft of its code of practice and consult on it with relevant stakeholders, including PSBs and representatives of TVSS providers.
TVSS providers must also incorporate accessibility features in their services so that persons with disabilities affecting their sight and/or hearing are able, so far as practicable, to make use of the service for the same purposes as persons without disabilities.
Dispute resolution, enforcement and sanctions
In addition to a traditional supervisory role, Ofcom has a new dispute resolution function to help break stalemates in negotiations as a measure of last resort. PSBs and TVSS providers can refer disputes over prominence arrangements to Ofcom if there is no other realistic prospect of resolving the dispute. In this role, Ofcom can issue declarations of the parties' rights and obligations, give directions fixing terms and conditions or monetary payments, and order interim measures pending its final decision.
Ofcom is also responsible for taking enforcement action against PSBs and TVSS providers for non-compliance with their obligations under the Act and for publishing guidance regarding the exercise of its enforcement powers. Enforcement can potentially culminate in a requirement for PSBs and TVSS providers to take particular steps or (except in the case of the BBC or S4C) pay a fine amounting to the greater of £250,000 or 5% of qualifying worldwide revenue.
Ofcom may require PSBs and/or TVSS providers (other than the BBC or S4C) to pay a fee to cover its costs of carrying out its functions under the Act.
What does this mean for you?
The Act comes at a time where, even without a formal online prominence regime, PSBs may make extensive demands on TV services in relation to the placement of their content. Services may resist these on the basis that PSBs should not become de-facto product managers or UI designers or require carriage and prominence for their non-public service offerings as a condition to licensing public service content. Depending on the content of guidance issued by Ofcom, the Act has the potential to help resolve these issues by increasing certainty as to what is expected from both PSBs and TV services, but Ofcom must draw the right balance between their interests.
There is an inherent tension between the "agreement objectives" set out in the Act. The requirement for prominence to be given to public service content and channels (as opposed to simply requiring a prominent entry point into the service itself) is particularly difficult to reconcile with the freedom of services to innovate and improve their user experience. It has the potential (presumably unintended by legislators) to inappropriately extend prominence requirements to UI features like search results, recommendations, and personalisation features that users expect to be based on parameters such as relevance to their query or viewing history rather than the fact particular content is provided by a PSB. Ofcom will need to address these tensions in a manner that avoids unintended consequences for innovation and user experience.
With respect to TV services' separate prominence obligations, it is unclear what (if anything) this is intended to add to the 'must carry' obligation, since it is presumably not intended to place a stronger emphasis on prominence than is afforded by the "agreement objectives" taken as a whole. Ultimately much of the substance of the Act's prominence obligations will rest on Ofcom's guidance. If drafted thoughtfully, this could prove useful not only as a guide to what TV services should do to meet prominence requirements but also to when, in the face of increasing demands from PSBs, they have done enough.
Given the detailed scope and content of the Act's obligations will be defined in secondary legislation and Ofcom guidance and codes of practice, affected organisations will need to continue their public policy engagement with the Secretary of State and Ofcom in the coming weeks and months.
