"Broadcasting" white paper on the horizon as the DCMS considers tighter regulation of VOD services to boost UK's media landscape

On 23 June 2021, the Department for Digital, Culture, Media & Sport ("DCMS") announced plans to consult on extending its existing regulatory remit and tighten regulations on video-on-demand services, including in respect of those based outside of the UK.

The announcement comes against the backdrop of a more general strategic review of the UK public service broadcasting ("PSB") system, where the "fast-evolving media landscape, increasing competition and changing audience habits" pose "imminent challenges" for public service broadcasting.

Strengthening and expanding VOD regulation

Video-on-demand services available in the UK are not regulated to the same extent as "linear" television channels and some non-UK-based video-on-demand services currently fall outside Ofcom's regulatory remit. The DCMS announcement makes it clear that the current landscape gives rise to the potential for an inconsistent and harmful gap in regulation between video-on-demand  services and "linear" services, as well as a potential competitive disadvantage between UK broadcasters and their internationally funded online counterparts.

In an effort to redress the balance and subject  video-on-demand services to similar rules as those that apply to more traditional "linear" broadcasters, the DCMS is reviewing the regulatory oversight of video-on-demand services and platforms, and considering whether existing rules ought to be strengthened further. This could include rules to increase protection for on-demand viewers, such as changes to age ratings and addressing impartiality and accuracy in documentaries and news content. Whereas existing audience protections placed on UK-regulated video-on-demand services differ when compared to the enhanced protections set out under Ofcom's Broadcasting Code.

The DCMS is also considering measures to enable PSBs to compete more effectively with international rivals.  This is expected to help ensure the UK remains a "diverse, free and pluralistic broadcasting landscape with high standards".

Consultation and White Paper on the horizon

Related DCMS reviews and consultation are anticipated later this year, ahead of a more comprehensive broadcasting-related proposal set out in a white paper expected in Autumn of this year (the "White Paper").

In putting together any such proposal, it will be important for the DCMS to balance the needs of the PSB system to complete effectively in a "media landscape fit for the 21^st century" against the likely impact on video-on-demand services to comply with a more extensive regulatory framework. Whilst the impact will depend on the nature of any DCMS proposals, in particular, this could include:

• increased compliance costs: arising from on-demand providers needing to impose stricter compliance and oversight programmes. This may be particularly significant for platforms operating across a global footprint, who may need to comply with different regulations across various jurisdictions. There is also likely to be a greater risk of enforcement action and sanctions for non-compliance.
• content limitation: where on-demand content comes under closer regulatory scrutiny, there is a risk that content creativity, as well as potential investment in that content, may be limited or stifled to a greater extent to comply with any new rules.
• strain on smaller platforms: there is also a risk that tighter regulation may pose a greater threat to smaller platforms who may be constrained by resources to comply with any such framework, and may therefore struggle to compete with larger platforms.

The White Paper is also expected to cover a number of other areas, including the DCMS' plans to take forward existing commitments to strengthen the prominence of PSB video-on-demand content so that their on-demand content can be easily accessed on a range of platforms and devices, including smart TVs.

The White Paper is expected to be influenced by a number of parallel work streams as well, including:

1. the ongoing review of PSB published by the Office of Communications (including a PSB prominence review published in July 2019), as well as Ofcom's recent consultation on the future of public service media, which closed 16 March 2021;
2. the DCMS' own ongoing strategic PSB review, which is likely to take into account recommendations from the Public Service Broadcasting Advisory Panel formed in November 2020; and
3. the Digital Radio and Audio Review launched in February 2020, which is examining future trends and will consider how radio should adapt to the growing challenges and opportunities from audio technologies, as well as the impact of new consumer behaviours such as streaming.

We look forward to more detailed proposals from the DCMS in due course, including the forthcoming White Paper. For now, watch this space.