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Who regulates the TV you watch and might Brexit change the channel?

Posted on 08 February 2018 by Alex Rhodes, Harry Eccles-Williams and Hala Alhedeithy

Television bars

69% of UK adults get their news from TV.  Of course, the picture is more complicated than that and is changing fast: according to Ofcom only half of 16-24 year olds say they use TV for news compared to 90% of those aged 65+.  Still, for the foreseeable future, broadcast media will continue to be hugely influential.

So, it is perhaps surprising that, under EU rules, not all companies broadcasting into the UK are regulated by Ofcom.  If an individual wanted to complain about the content shown by any of these channels – about what they say or show, or how it is broadcast – then Ofcom would not be able to help.  They would have to complain to the foreign regulator in the responsible EU country, usually in their language – and that is only possible once they've identified who regulates the particular channel in question.  The process can be opaque, slow and unsatisfactory.

Economically, the UK has been the major beneficiary of this system, becoming Europe's leading broadcasting hub.  Ofcom is the predominant regulator in the EU and this has brought jobs and revenue to our shores. 

However, all this may change as the Government grapples with Brexit.  Many in the UK broadcasting industry, including the Commercial Broadcasters Association (COBA), fear that legal and regulatory change may threaten revenue and jobs.  EU cities such as Dublin and Amsterdam are reported to be looking to attract broadcasters currently based in the UK. 

Unsurprisingly, Ofcom says that Brexit is the biggest challenge facing the sector.  But is it also an opportunity to reimagine how the majority of our news is regulated?

Current regulations

Television broadcasts in the EU are regulated in accordance with the Audio Visual Media Services Directive 2010/13/EU ("AVMSD").  The key provisions of this are:

  • Article 2(2-4), which provides which Member State will regulate a media service provider.  This is determined by: (a) where it is established (essentially, its head office is in the member state where editorial decisions are taken); and (b) if the media service provider is not established in any Member State, then the Member State where they use a satellite uplink, or where they use satellite capacity appertaining to that Member State.
  • Article 3(1), which sets out the country of origin principle – Member States cannot restrict retransmission of content by other Member States into their territory. Member States may only derogate from this principle in extremely limited circumstances.  Records indicate that this has only happened on a handful of occasions - in the most recent cases, RTR Planeta, a Russian-language channel operating from Sweden, was temporarily suspended from broadcasting in Lithuania for incitement to hatred.

In short, this means that (a) if a media service provider is regulated in one Member State, all other Member States have to allow transmission of that media service provider's content into their territory, and (b) in reality, if viewers or the national regulator in the receiving country are unhappy with that content, their only recourse is to the regulator in the country in which the media service provider is regulated. Further, by choosing where to establish itself or, if it is not established in the EU, which satellites to use, a media service provider can choose the Member State in which it will be regulated.

The current position: economic advantage at the price of robust regulation?

The current regulations have been financially beneficial to the UK, as, under the current system, many media service providers wishing to broadcast into the EU have chosen to be based in the UK and regulated by Ofcom. According to COBA, the UK currently houses approximately 1,100 channels, of which 650 broadcast in the EU (more than double its nearest rival, France). This has meant bringing significant business to the UK and funding to Ofcom, which may explain why the industry has expressed concern about the potential effect of Brexit.  

If the UK leaves the EU regulatory system, broadcasters may face having to deal with double regulation, both by Ofcom in the UK and an EU Member State regulator elsewhere in Europe.  Such a double regulatory burden would be unlikely to be welcomed by broadcasters.  The questions this threat poses are obvious: Will broadcasters continue to broadcast into the EU from the UK? Will some EU regulated broadcasters simply stop broadcasting into the UK?  Will the consumer suffer – either by higher costs or less choice – and if so, will it be those in the UK or the EU who come off worse?  Will broadcasters look instead to move their content over the internet?  While these questions remain open, there appears to be a real risk that whatever happens, broadcasters will be incentivised to move editorial control, headquarters and uplink locations from the UK to mainland Europe. 

Leaving the economics aside, the EU regulatory system is not without its shortcomings.  Under Article 6 of the AVMSD, all EU regulators are required to ensure that content meets certain minimum standards.  However, the exact standards that each one sets, how they implement them and how they are resourced vary from country to country: the system is uncertain.  Critically, having to complain to foreign regulators poses a significant hurdle.

In the current climate, it is not difficult to imagine cases where the UK would want Ofcom to regulate all broadcasts into the UK. For example, last September, a complaint was made to Ofcom about Al Jazeera's Arabic channel. The allegations were very serious (although unproven), including that its coverage of Islamic State was positive or sympathetic. Notwithstanding the gravity of the allegations, Ofcom was powerless, stating simply that it had "passed this letter of complaint to the media regulator in Italy, where the [Arabic] channel holds its licence, for urgent consideration". 

Post-Brexit law

It will be interesting to see how the UK Government attempts to strike a balance as we leave the EU.  Will it seek to bring back control of the regulation of content broadcast into the country, or will it remain part of the EU system of regulation?  While it is easy to see the financial benefit of the latter, in a world driven by information, where the fear of fake news, indoctrination and incitement to hatred are very real, it seems that the former might be preferable.                                

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