The note has been amended to reflect the establishment of the CMA, which takes over responsibilities from the OFT and the Competition Commission.
Broadcasting regulation: a quick guide
A quick guide to the regulation of broadcast media, including on-demand and internet services.
This is one of a series of quick guides, see Quick guides.
What services does this note cover?
This note discusses the regulation of broadcasting on television, radio and the internet, whether scheduled or on-demand.
Main regulatory issues
The main considerations are:
Authorisation. Does the provider need any licences, or to notify or get permission from any regulatory authorities?
Content. Are there any rules governing the content of the service?
Competition. Do any competition rules apply?
Broadcasting Act licence
Television broadcasting services as defined in section 362 of the Communications Act 2003 (for example, those provided by the ITV companies, Channel 4 and Five).
Television licensable content services (TLCS) as defined in section 232 of the Communications Act, which include services broadcast by satellite or distributed over an electronic communications network (ECN) (such as cable or the internet), and which consist of television programmes or electronic programme guides (EPGs).
Digital television programme services, which are similar to TLCSs but are provided with a view to being broadcast in digital form from a multiplex (a block of transmission capacity).
Licences are also required for other related services such as, for example, local television services and teletext services. There is also a range of radio licences, for digital radio, community radio and radio restricted services.
The detailed distinctions between the different types of broadcast licensable services are beyond the scope of this note, and anyone applying for a licence should consult the relevant legislation and the licensing section of Ofcom's website. The distinctions are important, as the licence conditions differ for the different types of services. Some services will need more than one Broadcasting Act licence to cover their various activities.
"Fit and proper person"
Section 3(3) of both the 1990 and the 1996 Broadcasting Acts requires that licensees are "fit and proper persons". Ofcom sought to explain how it understands this test in the context of considering whether BSkyB remained a fit and proper person to hold a broadcasting licence in the wake of alleged phone hacking by News Corporation newspapers in the summer of 2011. Ofcom published frequently asked questions (see Legal update, Ofcom publishes "fit and proper person" FAQs (www.practicallaw.com/3-506-9403)) and a decision on BSkyB (see Legal update, Ofcom decides Sky is fit and proper broadcast licensee (www.practicallaw.com/2-521-4641)).
Video-on-demand providers have to notify the Authority for Video on Demand (ATVOD) if their service is an "on-demand programme service" (ODPS) under section 368A(1) of the Communications Act as amended by the Audiovisual Media Service Regulations 2009 (SI 2009/2979), that is, it provides public "television-like" programmes on-demand under editorial control. ODPS providers must notify ATVOD before beginning to provide ODPS and before ceasing to provide them (section 368BA, Communications Act), and pay a fee. For more details, see Practice note, Video-on-demand (www.practicallaw.com/4-502-3693).
Broadcasters and other media content providers who use premium-rate services (PRS) within programmes, for example, for voting or competition entry, must register with PhonepayPlus, the premium-rate phone regulator, as they are "level 2" providers under the PhonepayPlus Code of Practice. For more information, see Practice note, Premium-rate phone services (www.practicallaw.com/9-504-8262).
The BBC operates under Royal Charter, which sets out the public purposes of the BBC, guarantees its independence, and outlines the duties of the Trust and the Executive Board. The current Charter runs until 31 December 2016.
An Agreement with the Secretary of State sits alongside the Charter. It provides detail on many of the topics outlined in the Charter and also covers the BBC's funding and its regulatory duties. The Agreement together with the Charter, establishes the BBC's independence from the government.
The applicable content regulation varies depending on the type of content service being broadcast. The rules are also different depending on the method of transmission, for example, whether the content is part of a scheduled television programme, or available "on demand" over the internet. There are rules for programmes and rules for commercial references (advertisements) within programmes. The source for many of the rules for audiovisual media (scheduled television or on-demand) in the UK is the Audiovisual Media Services Directive 2007 (2010/13/EU (codified)) (AVMS Directive).
A number of statutory rules and codes apply to programmes. In addition, programmes must comply with the laws on copyright and defamation. Television and online audiovisual programmes are protected by copyright as films under the Copyright, Designs and Patents Act 1988, and there is copyright in a broadcast signal to protect the broadcast itself. For more information, see Practice note, Overview of Copyright (www.practicallaw.com/9-107-3741). For information on defamation, see Article, Defamation: an overview (www.practicallaw.com/8-205-5341)). Call-TV quiz shows must comply with the Gambling Act 2005 (see Practice note, Overview of broadcast content regulation: Gambling (www.practicallaw.com/8-381-7556)).
Broadcasting Act licensees
The following codes apply:
Broadcasting Code. The Broadcasting Code, which is drawn up by Ofcom under section 319 of the Communications Act, includes standards for television and radio programmes with regard to under-18s, harm and offence, crime, religion, impartiality, accuracy, fairness and privacy, and so on. Ofcom considers allegations of breach of the Broadcasting Code and can impose statutory sanctions, including requiring a broadcaster to broadcast a correction or statement of Ofcom's findings, or pay a fine, or have a broadcasting licence shortened or revoked.
Code on Sports and other Listed Events. This Code ensures that certain free-to-air broadcasters are guaranteed rights to live coverage of key sporting events and other events of national interest. For more on this, see Practice note, Overview of broadcast content regulation: Code on Sports and Other Listed Events (www.practicallaw.com/8-381-7556).
Cross-promotion Code. This Code, which is incorporated into the Broadcasting Code, requires that cross-promotions on television are kept distinct from advertising, and that promotions on television outside programmes must not prejudice fair and effective competition. For more information, see Practice note, Overview of broadcast content regulation: Ofcom Broadcasting Code (www.practicallaw.com/8-381-7556).
Code on Electronic Programme Guides. This Code gives guidance on the practices EPG providers should follow, such as giving prominence for public service channels.
Code on Television Access Services. This Code sets out requirements on subtitling, sign language and audio description.
The BBC is subject to some but not all of the requirements of the Broadcasting Code. For example, it is not subject to the rules on impartiality and accuracy, which are covered by the BBC's own Editorial Guidelines, and complaints about the BBC's standards compliance are dealt with by the BBC's Editorial Complaints Unit. The House of Lords has noted that the procedure for complaining about BBC content is complex and has suggested that it should be reformed (see Legal update, House of Lords report on governance and regulation of BBC (www.practicallaw.com/2-506-6928)).
Public service broadcasters
ITV1, Channel 4, Five and S4C1 are required to provide public service broadcasting as set out in section 264(4) of the Communications Act, that is:
Programmes that deal with a wide range of subjects.
Television services likely to meet the needs and satisfy the interests of as many different audiences as practicable.
Television services that meet the needs and interests of the available audiences.
Maintain high standards with respect to the contents of programmes, the quality of programme making and the skill and editorial integrity applied in making programmes.
On-demand services and other internet regulation
Programme standards. On-demand programme services must comply with standards set out in section 368E of the Communications Act as amended by the 2009 Regulations. In particular, they must not contain material likely to incite hatred based on race, sex, religion or nationality. If an ODPS contains material which might seriously impair the physical, mental or moral development of persons under the age of 18, the material must be made available in a manner which secures that such persons will not normally see or hear it. ATVOD has issued guidance on what it thinks this means, and Ofcom has recommended legislating to assist interpretation of this provision. For more details, see Legal update, Tighter rules likely for adult material on VOD (www.practicallaw.com/2-507-1901).
Internet copyright. Sections 3 to 16 of the Digital Economy Act 2010 impose obligations on ISPs aimed at reducing online infringement of copyright by introducing new sections 124A to 124M in the Communications Act. ISPs must:
Notify their subscribers if their internet protocol (IP) addresses are reported (in a copyright infringement report (CIR) in a prescribed form) by copyright owners as being used to infringe copyright.
Provide, on an anonymous basis, copyright infringement lists to copyright owners in relation to subscribers about whom the number of CIRs has exceeded a threshold.
These obligations are to be subject to and underpinned by an "initial obligations" code of practice, which is due to come into force by January 2013, although the first subscriber notifications are unlikely to be sent out before late 2015 (see Legal update, First copyright infringement notification period under Digital Economy Act 2010 to be delayed until late 2015 (www.practicallaw.com/0-531-6626)).
Press Complaints Commission. The Press Complaints Commission (PCC) regulates audiovisual material on newspaper and magazine websites where the newspaper or magazine website's editor is fully responsible for its content under the terms of the PCC's code of practice, and where material is not "pre-edited to conform to the online or offline standards of another regulatory body". For more information, see Practice note, Video-on-demand: Press Complaints Commission (PCC) (www.practicallaw.com/4-502-3693).
Broadcasting Act licensees
Broadcasting Code: sections 9 and 10. Sections 9 and 10 contain the rules for commercial references in television and radio programming respectively.
In the case of television, the rules are intended to ensure editorial independence; maintain a distinction between editorial and advertising content; protect audiences from surreptitious advertising; protect consumers; and prevent unsuitable sponsorship. In particular, section 9 deals with:
Product placement. Product placement is allowed in films, series made for television, sports programmes, light entertainment programmes and programmes acquired from abroad, except that it is prohibited entirely from news programmes and children's programmes. For more on product placement, see Practice note, Product placement (www.practicallaw.com/2-503-0109).
Sponsorship. Sponsorship must be clearly separated from advertising, and sponsorship credits must not contain advertising messages or encourage the purchase or rental of goods or services. News and current affairs programmes must not be sponsored. For more on sponsorship, see Practice note, Overview of broadcast content regulation: Advertising and sponsorship (www.practicallaw.com/8-381-7556).
Premium-rate services. For broadcasters using PRS for audience voting and competition entry, section 9.26 requires that where a broadcaster invites viewers to take part in or otherwise interact with its programmes, it may only charge for such participation or interaction by means of PRS or other telephony services based on similar revenue-sharing arrangements. Rule 9.28 says that any promotion of a PRS must be subsidiary to the primary editorial purpose of the programme. Rule 9.29 (and rule 10.9 for radio) requires broadcasters using PRS numbers to comply with the PhonepayPlus Code of Practice (for more information, see Practice note, Premium-rate phone services (www.practicallaw.com/9-504-8262)).
For radio, section 10 ensures the transparency of commercial communications to secure consumer protection.
BCAP Code. The Broadcast Committee of Advertising Practice regulates the content of all television advertisements broadcast by channels and stations licensed by Ofcom, as well as advertisements on interactive television services, television shopping channels and televisual text services, through its code. The code is based on the principles of consumer protection and social responsibility. Compliance with the code is policed by the Advertising Standards Authority. For more on this, see Practice note, Overview of broadcast content regulation: BCAP Code (www.practicallaw.com/8-381-7556). Most broadcasters submit adverts to Clearcast to check compliance with the BCAP Code.
Quantity and distribution of advertising. Ofcom regulates the distribution of advertising breaks through the Code on the Scheduling of Television Advertising (COSTA). The rules on the frequency with which a programme can be interrupted by an advertising break depends on the category of programme, and the requirement not to not to jeopardise the programme's integrity, to take account of natural breaks and not to prejudice the rights of the rights-holder. There are stricter limits on interrupting films made for television, cinematographic works, children's programmes and news programmes. For more on this, see Practice note, Overview of broadcast content regulation: Code on the Scheduling of Television Advertising (www.practicallaw.com/8-381-7556).
Teleshopping. Teleshopping (or "home shopping") is subject to most of the same rules that apply to television advertising. The rules on scheduling teleshopping are contained in COSTA. For more information, see Practice note, Overview of broadcast content regulation: Teleshopping (www.practicallaw.com/8-381-7556).
On-demand services and other internet regulation
ODPS have to comply with rules for advertising, sponsorship and product placement in sections section 368F, 368G and 368H of the Communications Act respectively, which are enforced by the ASA (for more information on these rules see, Practice note, Video-on-demand: Advertising (www.practicallaw.com/4-502-3693), Sponsorship (www.practicallaw.com/4-502-3693) and Product placement (www.practicallaw.com/4-502-3693)).
Some video-on-demand programming will also be subject to the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code), although the Code expressly does not cover website content including editorial content or news unless it otherwise falls under areas to which the Code does expressly apply. Clearcast also checks VOD advertising for compliance with the CAP Code.
Under the AVMS Directive, audiovisual media services transmitted by a media-service provider under the jurisdiction of a particular EU member state have to comply only with the laws applicable to audiovisual media services in that member state (Article 2(1), AVMS Directive). The AVMS Directive provides mechanisms aimed at preventing service providers establishing themselves in a member state where the regulatory regime is more relaxed than the regime in the country in which they wish to broadcast. A member state who considers that a broadcaster under the jurisdiction of another member state provides a television broadcast which is wholly or mostly directed towards its territory can take action to seek to get the broadcaster to comply with the stricter rules (Article 4, AVMS Directive).
An audiovisual programme made outside the EU after 19 December 2009 will still have to comply with the basic UK standards in order to be broadcast in the UK. A programme made for reception outside the EU does not have to comply with the AVMS Directive (Article 2(6), AVMS Directive) or UK legislation, but may be subject to non-EU regulatory regimes.
Broadcasting Act licences contain conditions requiring broadcasters to keep copies of programmes for 90 days in the case of television programmes and 42 days in the case of radio programmes (section 334, Communications Act).
ODPS providers must keep copies of all programmes for at least 42 days after the day on which the programme ceases to be available for viewing (section 368D(3)(zb), Communications Act).
The following are a few specific points about competition in the broadcasting sector. Competition law in general is beyond the scope of this note.
Ofcom's principal duties include a duty to further the interests of consumers in relevant markets, where appropriate by promoting competition (section 3(1)(b), Communications Act).
Ofcom can impose conditions on a Broadcasting Act licence-holder to ensure fair and effective competition between services (section 316, Communications Act).
Responsibility for competition matters in the communications sector is shared between Ofcom and the Competition Markets Authority (CMA). Ofcom has concurrent powers with the CMA to exercise Competition Act powers (section 371, Communications Act) and can apply and enforce Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
Ofcom also has concurrent powers with the CMA in relation to market investigations and super-complaints under the Enterprise Act 2002, insofar as they relate to communications matters (section 370, Communications Act). Ofcom can refer completed or anticipated mergers to the Competition Markets Authority to consider whether a merger may be expected to result in a substantial lessening of competition within the appropriate market (sections 22 and 33, Enterprise Act). .
Media public-interest consideration
The Secretary of State can intervene in a merger if they think that there is a relevant public-interest consideration (section 42, Enterprise Act). Where this is a media public-interest consideration, the Secretary of State can ask Ofcom to report on the consideration (section 44A, Enterprise Act). The media public-interest considerations are:
The need, in relation to every different audience in the UK or in a particular area or locality of the UK, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience.
The need for the availability throughout the UK of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests.
The need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.
(Section 58(2C), Enterprise Act.)
There are a number of restrictions on cross-media ownership. In particular, a newspaper owner may not acquire a regional Channel 3 licence if they run one or more local newspapers that have an aggregate market share of 20% or more in the area covered by the regional Channel 3 licence.