On 12 February, The Department for Digital, Culture, Media & Sport (DCMS) announced its initial response to the consultation on the Online Harms White Paper.
The same day, to considerably less fanfare, it also published its response to the two consultations on the Audiovisual Media Services Directive (AVMSD) from the 30 May 2019 and 24 July 2019.
The directive, which in various formats dates back to 1989, was amended in 2018 with a deadline for transposition of 19 September 2020.
As such, under the terms of the Withdrawal Agreement, the UK is required to implement the changes, and after the end of the transition period this will constitute retained EU law. It seems likely that the mechanism for implementing the necessary changes will again be a statutory instrument amending the Communications Act 2003, though no draft has as yet been made public.
The Audiovisual Media Services Directive
The AVMSD currently regulates television and video-on-demand services, referred to in the UK regime as on demand service providers (ODPS), including advertising, providing minimum harmonisation standards. It is based on the country of origin principle, which essentially means that operators comply with the regulatory regime of the country in which they are established.
The current regime is implemented in the UK through the Broadcasting Acts 1990 and 1996, the Communications Act 2003 and, for the BBC, through the BBC Charter. More detail is found in Ofcom’s Broadcasting Code, as well as in the ASA’s codes.
The most recent revision, agreed in 2018 and part of the EU Commission’s Digital Single Market Strategy, introduces a number of changes, some of which amend existing rules but some of which are entirely new. Not all the provisions in the AVMSD will require implementation in domestic law – for example, the changes to the rules setting down the country of origin principle.
The Government also took the view that some elements of the AVMSD, notably the rules relating to the independence of the national regulator (Ofcom), were already dealt with in existing national law. Further, some provisions give Member States a choice as to whether to take action or not (e.g. in terms of imposing a levy scheme to fund European works).
Harmful content and the protection of minors
Content regulation on both television and on demand programme services is currently carried out by Ofcom which, through its Broadcasting Code, provides detail on the high-level obligations contained in the Communications Act. The Government proposed the amendment of s. 368E Communications Act (which in turn would affect the terms of the Broadcasting Code). Specifically, s. 368E(5) Communications Act which deals with video-on-demand services requires ‘specifically restricted material’ not to be made available to those under 18.
The definition of ‘specifically restricted material’ currently includes ‘other material that might seriously impair the physical, mental or moral development of persons under the age of 18.’ The proposal is that the word ‘seriously’ be removed, so that the definition would read ‘other material that may impair the physical, mental or moral development of persons under the age of 18.’ This would tighten the rules applying to video-on-demand services regarding the protection of minors.
The recitals to the AVMSD also specify that sufficient information be given to viewers about the nature of the content to be viewed. The Government questioned whether this be dealt with by allowing Ofcom choice in how to update the Code, or whether standardised content descriptors should be introduced. The use of such descriptors is not required by the AVMSD and the Government seems to have concluded that regulation on this point is not necessary stating that there ‘was not enough evidence to suggest that this is the correct approach.’ Ofcom will be empowered to regulate to ensure that viewers are provided with sufficient information.
One theme in the revision of the AVMSD is a significant emphasis on European works and there are a number of provisions in the AVMSD relating to their promotion and distribution: quotas, prominence and levies.
The Government had no discretion in implementing the new quota rules which requires on-demand service providers to reserve a minimum of 30% share of their catalogues to European works. Ofcom will be required to produce guidance as to the exemptions to the quota obligation; these essentially are available to low turnover/low audience services. While this is a change in the law, in practice its seems ODPS providers already comply with this requirement.
The AVMSD imposes reporting obligations on Member States; this aspect of the directive will not apply to the UK because of Brexit. Nonetheless, the Government plan to require Ofcom to produce a report every two years on European works as regards quotas and prominence, taking the text from the AVMSD on a copy-out basis and amending the Communications Act.
The revised AVMSD requires European works to be given prominence, though it does not define what this means. The Government intends to amend the Communications Act to give Ofcom the duty to produce guidance on the prominence of European works in the catalogues of on demand programme services.
The AVMSD envisages the possibility of ‘country of destination’ levies applicable to both television and on demand services. By this, member States could impose levies on services that are not established within their jurisdiction but target programming to their national audiences.
At the time of the consultation in 2019, the Government stated that it did not intend to introduce a levy to support the production of European works as permitted (but not required) by the AVMSD. The Government did not change its position on this, though it stated it would keep the matter under review.
The AVMSD simplifies the rules relating to advertising minutage imposed on television broadcasters. The current rules are included in Ofcom’s Code on the Scheduling of Television Advertising (COSTA). The Government proposes to leave this unchanged. While Ofcom could undertake a review of the minutage rules, the Government indicated that there are no plans to ask it to do so in the near future.
Article 7(1) revised AVMSD requires Member States to “ensure, without undue delay, that services provided by media service providers under their jurisdiction are made continuously and progressively more accessible to persons with disabilities through proportionate measures.”
This obligation applies to both television and ODPS; the current UK rules apply only to television services. The Secretary of State has powers under s. 268BC Communications Act (as amended by the Digital Economy Act 2017) to make secondary legislation putting in place accessibility obligations on ODPS.
Ofcom, after carrying out a consultation, recommended extension of the rules to ODPS. This existing framework already covers the obligation found in the AVMSD. The Government therefore intends to carry on its evaluation of Ofcom’s report under existing powers rather than replace or amend those provisions.
Additionally, the Government intends to ensure that emergency communications (under s. 366 Communications Act) are also made in such a way that is accessible.
Perhaps the most notable change to the AVMSD is the introduction of rules relating to video-sharing platforms (VSPs). The implementation of these provisions is seen by the Government as a staging post to the introduction of the Online Harms regime – with Ofcom being the regulator (at least for the time being) for both regimes, though with the power to designate a co-regulator.
The ASA will take over responsibility for advertising on VSPs. This means that there is a coherent framework as regards to a regulatory actor not only for the existing broadcasting regime but also with the forthcoming online harms regime. This inter-linking may mean that the approach of the regulator may be influenced by the future approach to online harms, albeit within the current constraints of what the AVMSD requires.
The obligations on VSP providers fall into three broad categories:
- Protect minors from harmful content
- Protect the general public (including minors) from incitement to violence or hatred on the basis of grounds found in Article 21 EU Charter, as well as from constituting a criminal offence (in essence public provocation to commit terrorist offences, child pornography and racism/xenophobia)
- Commercial communications.
The VSP providers are to take ‘appropriate measures’ to protect their users in relation to the first two categories of content. In terms of commercial communications there is a distinction between commercial communications arranged or controlled by the VSP provider and those by third parties. As regards the former group, VSP providers must comply with the rules in Art 9 AVMSD regarding commercial communications; as regards the latter group, the VSP providers’ obligations are those of taking appropriate measures. A non-exhaustive list of possible measures is found at Article 28b(3) AVMSD.
There is some uncertainty as to which services will fall within the definition of VSP. The Commission is due to publish guidance. In any event, the Government envisages that Ofcom will provide guidance as to the scope of services in remit, as well as to provide guidance as to what ‘appropriate measures’ will be required to ensure compliance with Article 28(b)(1) and (2) AVMSD.
Operators will be required to notify Ofcom; they will not be required to obtain a licence. The enforcement regime with regard to video on demand (including Ofcom’s information gathering powers) will be used as a model for enforcement powers in relation to VSPs. The AVMSD specifically requires that there be an impartial out-of-court redress mechanism for the resolution of disputes between users and VSP providers.
For reasons of practicality, a complains mechanism equivalent to that found in the broadcasting regime was not envisaged. Rather, it is intended that Ofcom oversee the VSP provider’s own redress systems, which will be required to include an external independent appeals process.
Data protection issues
Under both the provisions relating to harmful content generally and those relating to VSPs, the AVMSD provides that data collected for the purpose of ensuring that harmful content is not seen should be used only for that purpose.
The Government, following responses to the consultation to this effect, has decided that this prohibition is to be read narrowly: that it applies only to data ‘collected specifically’ for that purpose. There is also no need to take further action as the GDPR imposes a rule of purpose limitation.
It also refers to the impact of the Age Appropriate Design Code (which will not come into force until after the AVMSD is implemented) for the protection of children and their data.
The Government’s intention is to have the new rules in place by the implementation date of 19 September 2020, though the draft legislation is not yet available.
It may be that matters are slowed down by the need to divert civil service time to coronavirus response planning.
Even if this law is in place by September, it seems unlikely that Ofcom would be in a position to bring the regime into practical force during 2020, especially in terms of areas in which it has to provide guidance to industry.