The UK government passed the Media Act as part of the Parliamentary 'wash-up' before the general election. The Act reforms the regulation of public service broadcasting in the UK to address technological changes and Brexit.
The focus of this article is on Part 6 of the Act, which updates the Communications Act 2003 by introducing regulation of certain radio selection (ie smart speaker and similar) service providers.
As consumers are shifting towards listening to radio via the internet rather than via broadcast, the Act establishes protections for BBC and UK licensed radio stations played on certain devices. In overview, providers within scope must make the radio stations findable on request, must not interrupt the content (eg by an advertisement), and must not charge the radio stations to provide the service.
Who does Part 6 apply to?
The duties in Part 6 apply to the providers of "designated radio selection services". Broadly, these are the providers of certain smart speaker (and similar) services. More specifically:
- A "radio selection service" (RSS) is defined as a service provided by means of the internet which enables a user to select an internet radio service (see below) and cause that service to play through a speaker by giving spoken commands to a device connected to the internet. It includes such a service provided from outside as well as from within the UK.
- A "designated radio selection service" (DRSS) is an RSS which is designated as a DRSS by the Secretary of State.
The definition of an RSS is broad enough to cover services delivered through a range of connected audio devices, some of which might not strictly be considered smart speakers (such as smartphones and laptops). It could also cover the situation where a service is played through one device in response to a spoken command given to a different device.
There is a minimum audience requirement for a service to be deemed a DRSS. The Secretary of State may designate an RSS as a DRSS only if it considers that there are "significant" levels of use of the service in the UK, following a report from Ofcom about this. According to the government's explanatory notes, this recognises that only services used by a significant number of people in the UK have the capacity to meaningfully affect UK radio stations' ability to reach their audiences.
Ofcom must establish and maintain a list of DRSSs and their providers. If the level of use of a DRSS to listen to internet radio services is no longer significant (as informed by a report from Ofcom), the designation may be revoked. The DRSS provider may also request such revocation. Any providers of a DRSS must also give notice to Ofcom if their service ceases to be provided.
It is not yet fully clear who will be caught by the definition of a DRSS, although GoogleHome/Google Nest and similar have specifically been named by the government in connection with the Act as "the most popular smart speakers or smart displays amongst UK households". These services are therefore likely to be caught by the definition of DRSS, but the remainder will depend on which services Ofcom finds have "significant" levels of use and the outcome of consultations with stakeholders.
Who does Part 6 benefit?
The obligations in Part 6 are intended to benefit and protect "relevant internet radio services". Broadly, this means a BBC radio station or UK licensed radio station whose services are made available over the internet, and which have given notice to Ofcom. More specifically:
- An "internet radio service" (IRS) is defined as a service, or a dissociable section of a service, consisting wholly of sound programmes distributed by means of the internet (whether by the provider of the service or another person).
- A "relevant internet radio service" (RIRS) is an IRS notified by its provider to Ofcom and specified in a list of notified services established and maintained by Ofcom. To qualify for this list, the IRS must have (in the opinion of Ofcom) an effective system or process for securing that it "corresponds" to a BBC radio service, a licensed community or commercial radio service, or a licensed restricted service with a duration of at least 12 months. The IRS "corresponds" to a radio service if, disregarding advertisements, all its programmes are provided at the same time as the broadcast service.
As the IRS provider must proactively submit a notification to Ofcom, the onus is on them to secure addition to the RIRS list and benefit from the provisions of Part 6.
A provider may request to be removed from the list by giving notice to Ofcom. Furthermore, a provider must give notice to Ofcom if it ceases to be the provider of the IRS or the service ceases to be provided.
What are the duties in Part 6?
The duties (set out in s362BI of the Act) on the DRSS provider are to take all reasonable steps to secure that listeners:
- are able to select and play a relevant IRS by giving spoken commands, and
- are able to continue to do so while that IRS is included in the list.
This means that DRSS providers must ensure that BBC stations and UK licensed radio stations provided over the internet can be found and listened to on request.
Duties also include to:
- take all reasonable steps to secure that no items are played before the selected service (except to identify the service, or if advertisements are agreed) and that the service is not interrupted
- take all reasonable steps to secure that, where the provider of a relevant internet radio service makes a request that the service operates in a particular way, the DRSS operates in the way requested. According to the government's explanatory notes, this could be that Global Player is used for stations operated by Global, or BBC Sounds for stations operated by the BBC. This duty is subject to an exception - operating in a different way is permissible if the user of an DRSS selects that different way
- not charge the provider of a RIRS for playing it, or enter into an agreement for this kind of payment.
Duties 2 and 3 are not to be taken to require the DRSS provider to override the preferences of a listener as to the way in which the service operates. For example, when a listener has enabled notifications (such as phone calls or alarms) which may interrupt the IRS. This provision provides greater certainty than previous iterations of the Act (before it was passed) did, reflecting practicalities of how smart speakers are used by consumers.
The DRSS provider must also:
- Draw up and publish a statement on how it intends to comply with its duties, and keep this statement under review, revising it as necessary.
- Establish and maintain procedures to handle and resolve complaints by providers of RIRS that the former has failed to comply with its duties.
Ofcom must issue a code of practice setting out the actions it recommends for ensuring DRSS providers comply with their duties. The DRSS provider is deemed to have complied with its duties if it follows the code. However, a failure to follow the code does not automatically mean that the provider has breached its duties.
Ofcom is given enforcement powers, including to issue monetary penalties against any person who fails to comply with a duty or prohibition and to bring civil proceedings for an injunction, specific performance and any other appropriate remedy or relief. It is also given power to require DRSS providers and/or RIRS providers to pay a fee to cover its costs in carrying out its functions under Part 6.
The Secretary of State is given powers to amend Part 6 to respond to further developments in technology and changes in the market. These amendments are, however, subject to procedural safeguards including needing to consider reports from Ofcom and consulting with providers of RIRS services, DRSS services and other appropriate persons. The regulations must also be scrutinised by Parliament.
What does Part 6 mean?
Part 6 of the Act demonstrates a legislative intent to safeguard traditional British radio content in a market that has seen changing consumption habits. In its explanatory memorandum, the government says that, "With the rapid growth of listening via voice-activated connected audio devices over recent years, UK radio is increasingly operating within an environment which is occupied by larger platforms with competing services and the capability to drive audiences elsewhere."
Part 6 imposes new responsibilities for smart speaker providers within scope, ensuring they support fair access to British content without unjust restrictions or additional fees. The enforcement powers granted to Ofcom underscore the seriousness in ensuring compliance, which may present a tension between preserving established media institutions and embracing technological advancements. This is a balance that requires careful consideration as consumption patterns continue to evolve.
It remains to be seen who falls within the scope of Part 6, how DRSS providers will embrace their new duties, and which RIRs will benefit from them.
