In the rush of the “wash-up” process before the UK’s forthcoming General Election, the Media Act 2024 has completed the final legislative stages and became law on 24 May 2024. This major piece of legislation is the biggest shake-up to media regulation in two decades, and follows extensive work to shape a regime that is adapted to the profound changes that the sector has seen.
Summary of Act
The Act is broken down into six substantive parts:
Part 1 gives Public Service Broadcasters (“PSBs”) more flexibility in how they contribute to the public service remit, for example, by allowing them to fulfil their remit by making content available, not only on their primary linear channels, but also their on-demand services. PSBs have also been given more flexibility in ways they can meet their production “quotas”(for example, the requirement for a minimum proportion of programming to be commissioned from independent producers). Changes include assessing fulfilment by way of number of hours of programming, rather than percentage of channel time.
Part 2 updates the PSB prominence regime by creating a concept of “television selection services”, ensuring that PSBs’ online services enjoy a similar privileged position on smart TVs, set-top boxes and streaming sticks to PSBs’ live channels. (Please see here for our article summarising this Part when the Bill was first published.)
Part 3 focuses on Channel 4 and, most notably, removes the restriction on C4 being able to produce content.
Part 4 aims to bring the regulation of content on VOD services closer to the traditional linear regime that is set out in Ofcom’s Broadcasting Code. The Bill gives Ofcom powers to draft and enforce a new code applying only to VOD services (“VOD Code”). Like the Broadcasting Code, the VOD Code will impose standards for harmful or offensive material, due accuracy in news, fairness and privacy. All VOD services being used by PSBs (excluding the BBC) to fulfil their public service remits will be subject to the new Video-on-Demand Code and further regulations will specify a description of other VOD services that will be required to comply. In a big shift from the existing regime, for the first time Ofcom will be given the power to regulate the “largest, most TV-like VOD services” even if they are not established in the UK.
Part 5 modernises the framework that applies to radio licensing, simplifying OFCOM’s duties surrounding the genre and geographical origin of content.
Part 6 will regulate commercial relationships between radio stations and radio selection services (online platforms used by listeners to access different stations – a concept similar to the television selection services that are dealt with in Part 2), including to ensure that platforms cannot charge to distribute live UK radio services.
Implementation
Now that the Act has been passed by Parliament, attention will turn to its implementation. The Act has left important details to be determined through secondary legislation and guidance, with much of the work falling to Ofcom (which acts as regulator for the media industry). In anticipation of the Act being passed, Ofcom published a roadmap earlier this year which set out its provisional implementation timetable for achieving this. Ofcom is therefore likely to begin consulting on the changes straight away.
Here is a summary of the plan for Parts 2 (PSB Prominence) and 4 (VOD Code).
Part 2 (PSB Prominence)
Ofcom has set out three ‘implementation phases’ outlining the steps it will take to implement the new Part 2 regime.
Phase 1: Ofcom will focus on how they will designate which services fall within the scope of the new rules (which will be determined based on whether the service is used by a “significant number” of members of the public). Once designated, these platforms must provide on-demand services which are offered by public service broadcasters ("PSBs"). It is anticipated this phase will involve Ofcom publishing a consultation on how they intend to apply the criteria for designation of PSB online players, along with drawing up plans for how the application process will be run. Following this consultation, Ofcom anticipates being able to issue its subsequent report to the Secretary of State by mid-2025.
Phase 2: Ofcom will focus on drafting Codes of Practice and guidance to assist in the implementation of the new regime. This will involve consultations run throughout 2025, gathering stakeholder views on: (i) Ofcom’s recommendations for how regulated platforms should comply with their new duties; and (ii) Ofcom’s guidance on how commercial arrangements between PSB providers and designated platforms should be agreed.
Phase 3: Towards the end of 2025, Ofcom plans to consult on enforcement and dispute resolution procedures for the new regime.
Part 4 (VoD Code)
Part 4 of the Act addresses a new VOD Code and separate VOD Accessibility Code. These codes are anticipated to impose standards for harmful or offensive material, due accuracy in news, fairness and privacy, and ensure accessibility of VOD services for disabled users.
As a first step, the Government will request a report on the state of the VOD market in the UK. Once Ofcom prepares this report, which they expect to complete by the end of 2024, the Government will use the report to determine which services will be designated as ‘Tier 1’ services (and will therefore be subject to the new VOD Code).
In parallel, throughout 2024, Ofcom will begin drafting the new VOD Code and accompanying guidance. The VOD Code is expected to come into effect in 2025, following a consultation and roundtable discussions with key stakeholders. From the date of publication of the VOD Code, Tier 1 providers will have a 12-month grace period to ensure full compliance.
Separately, Ofcom anticipates beginning its consultations on the VOD Accessibility Code at the beginning of 2025, with the final version due to be published by mid-2025. Following publication, the first set of accessibility requirements prescribed in the Act (subtitling, audio description and signing), will come into effect within 24 months. Ofcom also expects to consult on and introduce interim accessibility and reporting requirements, which are likely to apply from 2026 onwards.
As a final step, Ofcom will also undertake a review of the measures which VOD providers have implemented to protect audiences from harm.
Next steps
Our team will continue to monitor developments closely throughout the crucial implementation phase, and is on hand to help with how you can input into this. Please do get in touch if you want to engage with this or need help in understanding the new framework established by the Act.
Authored by Oliver Wilson and Alice Russen.
