Draft Media Bill: Parliament plays catch up

After a very long gestation, the much-promised Media Bill arrived last week. Looking through the nearly 50 draft clauses, it’s clear parts of it are still not fully formed, and there is an awful lot of work for Parliament and Ofcom to do.

Industry will need to play its part, not least in the ongoing negotiations around Channel 4’s future production quotas (to be determined at a later date by secondary legislation). But also across the Bill as a whole, as Parliament’s Culture, Media and Sport Select Committee announced its intention to hold an inquiry and produce recommendations on the current draft.

That will take us at least up to the summer. By the time the Government responds, we’ll be into the autumn, so the final bill will form part of the new King’s Speech, expected in November.

It’s all a long time since Ofcom launched its consultation in December 2020, and even further back when the Government first promised to repeal section 40 of a Crime and Courts Act relating to news publishers’ liabilities for costs in the post-Leveson era.

Part of the delay is, of course, accounted for by the multiple changes of personnel at the top of the sponsoring department - Culture, Media and Sport - in recent years.

It’s also been caused by the significant change of heart over the future of Channel 4, the privatisation of which would have formed a centrepiece of the legislation; now abandoned.

The Bill has been brought forward in only draft form partly to enable further public consultation, but also because there were significant time pressures in establishing the basis for the latest renewal of the Channel 3 and Channel 5 broadcasting licenses.

Lack of clarity on some of the Bill’s provisions – most notably around the new prominence regime for public service content – has been an inhibition on those discussions.

So better to bring it forward now, the thinking goes, even with some parts not fully baked.

The main driver for the bill is to update legislation (the Communications Act 2003) from 20 years ago, which famously made no mention of the Internet.

The meteoric rise of online services has caused havoc right across the traditional media landscape. This legislation is designed - as the Secretary of State says - particularly to give the UK’s “brilliant broadcasters and our legendary radio industry the tools to keep doing what they do best”.

For the main UK players in TV and radio, the watch words are flexibility and modernisation. Flexibility about how they deliver their public service content – as audiences shift inexorably from broadcast to online – and modernisation in how regulations apply to ensure that content is discoverable and prominent on new platforms, such as smart TVs and smart speakers.

The Secretary of State talks about levelling the playing field, and in truth that means less regulation of traditional players, such as ITV in television or Global Radio, and more regulation of the new gatekeepers (like Alexa) and providers of film, television and radio content online (Netflix, Disney+, Amazon Prime and so on). Whole new categories of TV and Radio “selection services” are being identified and brought into Ofcom’s regulatory ambit.

The proposed new regulations have economic effect in the sense of obliging online services to showcase programmes created or commissioned and distributed by the UK’s traditional media players.

They are also content-focused, in the sense of overseeing standards for on-demand television services (including those based overseas, but aimed at UK audiences) and introducing regulation in areas like accessibility of those services for people with disabilities.

In truth, this may not amount to much more than codifying existing practices, but that hasn’t held the Government back from its ‘raising standards’ narrative.

Talking tough but acting pragmatically is a feature of this Bill, as it seems to be across much of Government in the new Sunak era.

The new rules will have to apply in different ways. For example, codes such as impartiality apply differently for traditional TV, where the balance has to be struck across a range of programmes being broadcast, to on-demand services where the inventory of content is vastly greater and always ‘on’.

Again, Ofcom will have a crucial role here.

Those with long memories may recall the Conservatives promising back in 2010 to curb Ofcom’s powers. But if you look at the extension of its reach via this Bill to online services, combined with all of its new responsibilities under the Online Safety Legislation, not to mention regulating the BBC and Post Office, Ofcom (born under Labour) has become an ever-mightier beast under successive Conservative administrations. Its powers, workload and fee income have grown in proportion.

After what some in the sector have dubbed ‘the forever consultation’ there are few surprises in this Bill.?Equally there is very little cross-party dispute over its main provisions. Lucy Powell, Labour’s Culture Spokesperson, confined herself to saying, on publication, that the Bill was “long overdue”.

To that extent we could expect the Bill to move fairly swiftly through Parliament. But of course, the devil is in the detail and with so much of it left to secondary legislation and Ofcom codes, it will be years and more consultations before many of its provisions begin to bite.

On the upside that means ample opportunity for industry to engage, but it also runs the risk that technology and audience behaviour will once again have moved on by the time this legislation, designed specifically to catch up, has any meaningful effect.?