The UK's draft Media Bill, published on 29 March 2023, is set to reform the regulation of public service broadcasting in the UK. The focus of this article is on Part 6 of the Bill, which updates the Communications Act 2003 by introducing the regulation of the providers of certain smart speaker (and similar) services.
Due to the shift towards consumers listening to radio via the internet rather than broadcast, the Bill seeks to establish protections for BBC and UK licensed radio stations played on certain smart speakers and similar devices. This is to be achieved in three main ways: by ensuring that those providers within scope must carry these radio stations, must not charge for carrying them and must not change them (eg by adding advertising).
Who does Part 6 apply to?
The duties in Part 6 apply to the providers of "regulated 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 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 "regulated radio selection service" (RRSS) is an RSS which is "designated" as such by the Secretary of State or falls within the description of an RRSS specified by the Secretary of State (both by Regulations).
The definition of an RSS is broad enough to cover services delivered through a range of 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 an RRSS. Those that are "designated" must be used by a "significant number of members of the public in the UK"; those that fall within the "description" must be used by "at least such number of members of the public in the UK as may be specified" in the Regulations. Whether this difference in wording is important in practice remains to be seen. According to the government's explanatory memorandum, both provisions recognise that only services used by a certain number of people in the UK have the capacity to meaningfully affect UK radio stations' ability to reach their audiences.
Any providers of an RSS must give notice to Ofcom if the service falls within (or ceases to fall within) the description of an RRSS, and Ofcom must establish, maintain, and publish an up-to-date list of all RRSSs and their providers.
It is not yet fully clear who will be caught by the definition of an RRSS, although Google Nest and similar have specifically been named by the government in connection with the Bill. Much will depend on the minimum number of users specified in the Regulations. The ability of the Secretary of State to designate regulated services should give the government some leeway to respond quickly to any significant changes to the market or technology.
Who does Part 6 benefit?
The Bill is drafted to benefit and protect "relevant internet radio services". Broadly, this means BBC radio stations and UK licensed radio stations whose services are made available over the internet by way of a simulcast, and which have given notice to Ofcom. More specifically, an "internet radio service" is a service which meets the following three criteria:
- It consists of the provision of programmes consisting wholly of sound distributed by means of the internet (whether by the provider of the service or another person).
- It "corresponds" to a "relevant radio service" and is supplied by the person who provides the relevant radio service. A service corresponds to another service if all the same programmes, other than advertisements, are provided at the same time on both services (known as a 'simulcast'). A "relevant radio service" is a sound broadcasting service or digital sound programme service provided by the BBC or authorised to be provided by licence.
- The provider of the service which corresponds to a relevant radio service makes reasonable efforts to secure that any advert included in the service is an advert that has been or is intended to be included in the relevant radio service to which the service corresponds. The government's explanatory memorandum states that, "An internet radio service may include different advertisements targeted at different listeners so long as the advertisement has been included (or is intended to be included) at other times in the corresponding licensed service. This will ensure that the advertisements included in an internet radio service meet the same regulatory standards as advertisements included in licensed services".
A "relevant internet radio service" is an internet radio service notified to Ofcom by the provider of the service and specified in a list of notified services established and maintained by Ofcom. The onus is therefore on providers of internet radio services to notify Ofcom that they wish to be included on the list of relevant internet radio services. Absent a notification, they will not benefit from the provisions of Part 6.
A provider can withdraw a notice at any time if it desires but must withdraw a notice if it ceases to fall within the definition of an internet radio service or ceases to provide that service.
What are the duties in Part 6?
The duties (set out in s362B) on the provider of an RRSS are to:
- secure that users of the service are able to select a relevant internet radio service and cause it to play by giving spoken commands. This means that regulated devices must carry relevant internet radio services
- secure that, so far as reasonably possible, its service deals effectively with the spoken commands of users who seek to select and play a relevant internet radio service. This means that relevant internet radio services must be findable on regulated devices
- make all reasonable efforts to secure that, where the provider of a relevant internet radio service makes a request that the service operates in a particular way, the RRSS operates in the way requested. According to the 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 RRSS selects that different way
- secure that, where the service is used to play a relevant internet radio service, only that radio service plays. According to the government's explanatory memorandum, this means that the provider of an RRSS is prohibited from changing the content or associated data of any of the relevant internet radio service's programmes (including adverts). A provider may not include adverts prior to playing the programme (ie ‘pre-rolls’) and may not insert adverts into stations’ existing commercial breaks or overlay them onto any other part of a station’s stream
- not charge the provider of a relevant internet radio service for playing it
- 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.
A provider of an RRSS must also establish and maintain procedures to handle and resolve complaints by providers of relevant internet radio services 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 RRSS providers comply with their duties. The provider of an RRSS 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 is also given power to require providers of RRSSs and/or relevant internet radio services to pay a fee to cover its costs in carrying out its functions under Part 6.
The Secretary of State is given wide powers to amend Part 6, including the definitions of RSS and RRSS.
What does Part 6 mean?
The requirement for certain RRSS providers to only "play" the relevant internet radio service could be contentious. Further clarification on this duty will no doubt be welcome, including whether the service can be interrupted (as opposed to changed) to notify the user of deliveries or other information. The same is true of the requirement to ensure that a relevant internet radio service is operated in the way specified by the provider since this could impose additional burdens on RRSS providers.
Nonetheless, the proposals are aimed at safeguarding 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."
How the balance between fair competition for RRSS providers and safeguarding British content is struck in the final version of the Bill remains to be seen.
