2020 No. 1062

Broadcasting

The Audiovisual Media Services Regulations 2020

Madeat 1.05 p.m. on 30th September 2020

Laid before Parliamentat 3.30 p.m. on 30th September 2020

Coming into force in accordance with regulation 1(2) and (3)

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 19721 in relation to information society services2 and measures relating to television broadcasting3, in exercise of the powers conferred by that section, makes the following Regulations.

PART 1Introductory

Citation and commencement1.

(1)

These Regulations may be cited as the Audiovisual Media Services Regulations 2020.

(2)

Subject to paragraph (3), these Regulations come into force on 1st November 2020.

(3)

The following regulations come into force on 6th April 2021—

(a)

regulation 26;

(b)

regulation 47, insofar as it relates to the insertion of section 368V into the Communications Act 20034.

PART 2Television services

CHAPTER 1Amendments to the Broadcasting Acts 1990 and 1996

2.

In the Broadcasting Act 19905—

(a)

for section 42A (restricted services)6 substitute—

“42ARestricted services
In this Part “restricted service” means a service (or a dissociable section of a service) which consists in the broadcasting of television programmes for a particular establishment or other defined location, or a particular event, in the United Kingdom.”;

(b)

in section 202(1) (general interpretation)7, for the definition of “the Audiovisual Media Services Directive” substitute—

““the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services8;”.

3.

In the Broadcasting Act 1996—

(a)

in section 1(4) (digital programme services)9—

(i)

after “means a service” insert “(or a dissociable section of a service)”;

(ii)

in paragraph (za), after “a service” insert “(or a dissociable section of a service)”;

(b)

in section 24(1) (digital additional service)10, after “means any service” insert “(or dissociable section of a service)”;

(c)

in section 39(1) (interpretation of Part 1)11, for the definition of “the Audiovisual Media Services Directive” substitute—

““the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services;”;

(d)

in section 105(1) (interpretation of Part 4 and supplementary provisions)12, for the definition of “the Audiovisual Media Services Directive” substitute—

““the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services;”.

CHAPTER 2Amendments to the Communications Act 2003

4.

Part 3 of the Communications Act 2003 is amended in accordance with this Chapter.

5.

In section 232 (meaning of “television licensable content service”)13—

(a)

in subsection (1)—

(i)

after “any service” insert “, or dissociable section of a service,”;

(ii)

in each of paragraphs (a), (aa) and (b), after “the service” insert “or dissociable section of the service”;

(b)

in subsection (2), in the words before paragraph (a), after “A service” insert “, or dissociable section of a service,”;

(c)

in subsection (3)(a), for “a service consisting of television programmes” substitute “a service, or dissociable section of a service, consisting of television programmes”.

6.

In section 233 (services that are not television licensable content services)14, in each of subsections (1), (2), (4), (5) and (7), after “A service” insert “, or dissociable section of a service,”.

7.

In the italic heading before section 303, for “the deaf and visually impaired” substitute “people with disabilities”.

8.

In section 303 (code relating to provision for the deaf and visually impaired)—

(a)

in the heading, for “the deaf and visually impaired” substitute “people with disabilities”;

(b)

in subsection (1)(a), after “enjoyment by” insert “people with disabilities, in particular”;

(c)

after subsection (1) insert—

“(1A)
The code must include provision—
(a)
encouraging providers of services to which this section applies to develop accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities;
(b)
requiring such action plans to be notified to OFCOM;
(c)
requiring providers of services to report annually to OFCOM about the accessibility of such services to people with disabilities.”.

9.

In section 304 (procedure for issuing and revising code under section 303)—

(a)

in subsection (1)(a), for “persons falling within subsection (1)(a)(i), (ii) or (iii) of that section” substitute “people with disabilities”;

(b)

in subsection (2), after “revision accessible to” insert “people with disabilities, in particular”.

10.

After section 307 insert—

“307ADisabled people: point of contact
OFCOM must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility issues which relate to matters dealt with by sections 303 to 307 and the code drawn up by OFCOM under section 303.”.

11.

In section 310 (code of practice for electronic programme guides)15, in subsection (3)—

(a)

after “persons with disabilities” insert “, in particular those”;

(b)

in paragraph (a), omit “such” before “disabilities”.

12.

In section 319 (OFCOM’s standards code)16—

(a)

in subsection (9), for “subsection (10)” substitute “subsections (10) to (12)”;

(b)

after subsection (10) insert—

“(11)
So far as relating to product placement falling within paragraph 4(bb) of Schedule 11A17 (undertakings whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers), subsection (2)(fa) applies only in relation to programmes the production of which begins after 31 October 2020.
(12)
Subsection (2)(fa) applies in relation to a programme the production of which began before 1 November 2020 as if, in Schedule 11A (which contains the product placement requirements referred to in section 321(3A))—
(a)
paragraph 3(1)(b) to (d) were omitted,
(b)
in paragraph 6(1) there were inserted, as paragraph (a): “the programme is a religious, consumer affairs or current affairs programme;”, and
(c)
paragraph 7 included a condition that the programme in which the product, service or trademark, or the reference to it, is included is—
(i)
a film made for cinema,
(ii)
a film or series made for a television programme service or for an on-demand programme service,
(iii)
a sports programme, or
(iv)
a light entertainment programme.”.

13.

In the italic heading before section 335A, after “States” insert “and the European Commission”.

14.

In section 335A (co-operation with other Member States)18—

(a)

in the heading, after “States” insert “and the European Commission”;

(b)

before subsection (1) insert—

“A1
OFCOM must take all necessary steps to provide such information and assistance to member States and to the European Commission as is required in order to comply with the Audiovisual Media Services Directive as it applies in relation to relevant broadcasters, in particular Articles 2, 3, 4 and 30a of the Directive.”.

15.

After section 335A insert—

“335BMaintenance of list of providers
(1)
OFCOM must establish and maintain an up to date list of persons providing—
(a)
a television programme service, or
(b)
a digital additional television service,
who are under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
(2)
The list must indicate in respect of each person which of the criteria set out in paragraphs 2 to 5 of Article 2 of the Audiovisual Media Services Directive is the basis for the decision that they are under the jurisdiction of the United Kingdom.
(3)
OFCOM must notify the European Commission of the contents of the list and of any updates to it.
(4)
The regulatory regime for each service mentioned in subsection (1) must include the condition that the persons providing the service must notify OFCOM of any changes that may affect the determination of jurisdiction in accordance with paragraphs 2, 3 and 4 of Article 2 of the Audiovisual Media Services Directive.”.

16.

For section 336(3) (government requirements for licensed services: announcements) substitute—

“(3)
The direction—
(a)
may specify the times at which the announcement is to be broadcast or otherwise transmitted; and
(b)
where the announcement relates to an emergency, including a natural disaster, must require the information given in the announcement to be provided in a manner which is accessible to people with disabilities.”.

17.

In section 362(1) (interpretation of Part 3)19—

(a)

in the definition of “assistance for disabled people”, for “means” substitute “includes, in particular,”;

(b)

in the definition of “television broadcasting service”, after “subsection (4)) a service” insert “(or a dissociable section of a service)”.

18.

In Schedule 11A (restrictions on product placement)20—

(a)

for paragraph 3(1) substitute—

“(1)
Product placement falls within this paragraph if it is in a—
(a)
children’s programme;
(b)
news or current affairs programme;
(c)
consumer affairs programme; or
(d)
religious programme.”;

(b)

at the end of paragraph 4(ba) omit “or”;

(c)

after paragraph 4(ba) insert—

“(bb)
by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers; or”;

(d)

omit paragraph 6(1)(a);

(e)

omit paragraph 7(2);

(f)

in paragraph 7(7)—

(i)

in paragraph (e), after “physical” insert “, mental”;

(ii)

after paragraph (e) insert—

“(ea)
directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;”.

19.

In Schedule 12 (corresponding obligations of the BBC and Welsh Authority), in the heading of paragraph 22, for “the deaf and visually impaired” substitute “people with disabilities”.

PART 3On-demand programme services

20.

The Communications Act 2003 is amended in accordance with this Part.

21.

In section 341 (imposition of penalties on the Welsh Authority)21, for subsection (1)(jb) substitute—

“(jb)
the requirements imposed by section 368CB, section 368D and section 368E(4) (on-demand programme services), except—
(i)
the requirements imposed by section 368D(1) and section 368E(4) so far as they relate to advertising, and
(ii)
the requirement imposed by section 368D(3)(za);”.

22.

Before section 368A insert—

“368ZAAudiovisual programmes
This Part applies in relation to the provision of programmes with or without sounds which consist of moving or still images, or of legible text, or of a combination of those things.”.

23.

In section 368A (meaning of “on-demand programme service”)22—

(a)

in subsection (1)—

(i)

after “a service” insert “(or a dissociable section of a service)”;

(ii)

in paragraph (a), for the words “the form and content of which” to the end, substitute “(as described in section 368ZA)”;

(b)

in subsection (2)—

(i)

after “Access to a service” insert “(or dissociable section of a service)”;

(ii)

in paragraph (a), after “the service”, in both places, insert “(or dissociable section of the service)”;

(c)

in subsection (3), after “the service” insert “(or dissociable section of the service)”;

(d)

in subsection (4)—

(i)

after “a service” insert “(or dissociable section of a service)”;

(ii)

after “the service” insert “(or dissociable section of the service)”.

24.

In section 368B (the appropriate regulatory authority)23—

(a)

before subsection (1), insert—

“A1
OFCOM is the appropriate regulatory authority for all purposes of this Part in relation to the BBC (and, in relation to the BBC, OFCOM may not designate any other body to be the appropriate regulatory authority for any of those purposes).”;

(b)

in subsection (1), for “subsection (9)” substitute “subsections (A1) and (9)”.

25.

After section 368B insert—

“List of providers
368BZAMaintenance of list of providers
(1)
OFCOM must establish and maintain an up to date list of persons providing an on-demand programme service.
(2)
The list must indicate in respect of each person which of the criteria set out in paragraphs 2 to 5 of Article 2 of the Audiovisual Media Services Directive is the basis for the decision that they are under the jurisdiction of the United Kingdom (see section 368A(1)(e)).
(3)
OFCOM must notify the European Commission of the contents of the list and of any updates to it.”.

26.

In section 368BA (advance notification to appropriate regulatory authority)24, after subsection (3) insert—

“(4)
In this section, “significant differences” includes any change that may affect the determination of jurisdiction in accordance with paragraphs 2, 3 and 4 of Article 2 of the Audiovisual Media Services Directive.”.

27.

In section 368BC (accessibility for people with disabilities)25—

(a)

in subsection (1)—

(i)

for “their services” substitute “such services”;

(ii)

for “affecting their sight or hearing or both” substitute “, including, in particular, people with disabilities affecting their sight or hearing, or both”;

(b)

in subsection (2), after paragraph (c) insert—

“(d)
requirements for providers of on-demand programme services to report annually to the appropriate regulatory authority about the accessibility of such services.”;

(c)

in subsection (4)(b) omit “affecting their sight or hearing or both”.

28.

In section 368C (duties of the appropriate regulatory authority)26—

(a)

in subsection (1), for “section 368D” substitute “sections 368CB and 368D”;

(b)

for subsection (2)27 substitute—

“(2)
The appropriate regulatory authority must encourage providers of on-demand programme services to develop accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities.
(2A)
The appropriate regulatory authority must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility of on-demand programme services to people with disabilities.”;

(c)

omit subsection (3);

(d)

after subsection (4) insert—

“(5)
The appropriate regulatory authority must draw up, and from time to time review and revise, guidance for providers of on-demand programme services concerning measures that may be appropriate for the purposes of section 368E(4) (ensuring specially restricted material is not available to under-18s).”.

29.

In section 368CA (code on accessibility for people with disabilities)28—

(a)

in subsection (1)(b)—

(i)

for “their services” substitute “on-demand programme services”;

(ii)

omit “affecting their sight or hearing or both”;

(b)

in subsection (2), after “revision accessible to” insert “people with disabilities, in particular”.

30.

Before section 368D insert—

“368CBQuota for European works
(1)
A person providing an on-demand programme service must secure that, in each year, on average at least 30% of the programmes included in the service are European works.
(2)
A person providing an on-demand programme service must ensure the prominence of European works in the service.
(3)
Subsections (1) and (2) do not apply to a person providing an on-demand programme service in relation to any period throughout which—
(a)
the service has a low turnover or a low audience, or
(b)
it is impracticable or unjustified for those subsections to apply because of the nature or theme of the service.
(4)
An exemption under subsection (3)(b) is at the discretion of the appropriate regulatory authority.
(5)
Where a person does not provide an on-demand programme service for a whole year, compliance with subsection (1) is to be assessed in relation to the period in that year during which the person does provide the service.
(6)
In assessing a provider’s compliance with subsection (1), any period for which an exemption under subsection (3)(a) or (b) applies to the provider is to be discounted.
(7)
In this section—
“European works” has the same meaning as in the Audiovisual Media Services Directive (see Article 1(1)(n), (2) and (3) of that Directive) and includes works deemed to be European works by Article 1(4) of that Directive;
“programmes” does not include advertisements, news programmes, sports events, games, teletext services or teleshopping.
(8)
This section is to be interpreted in accordance with the Communication from the European Commission (2020/C223/03) “Guidelines pursuant to Article 13(7) of the Audiovisual Media Services Directive on the calculation of the share of European works in on-demand catalogues and on the definition of low audience and low turnover” published in Volume 63 of the Official Journal of the European Union on 7 July 202029.”.

31.

In section 368D (duties of service providers)30—

(a)

in subsection (1), for “368E to 368H” substitute “368E(1) and (2) and 368F to 368H”;

(b)

in subsection (2)—

(i)

after paragraph (c) insert—

“(ca)
a statement that P is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive;”;

(ii)

in paragraph (d), for “the service” substitute “the on-demand programme service”;

(c)

in subsection (3), before paragraph (za) insert—

“(zza)
provide the appropriate regulatory authority with a copy of any accessibility action plan drawn up by the provider as mentioned in section 368C(2);”.

32.

In section 368E (harmful material)31—

(a)

in subsection (1), for “hatred” to the end substitute “violence or hatred against a group of persons or a member of a group of persons based on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 200732.”;

(b)

in subsection (3), before paragraph (a) insert—

“(za)
material the inclusion of which in an on-demand programme service would be conduct required by any of the following to be punishable as a criminal offence—
(i)
Article 5 of Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism33,
(ii)
Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography34, or
(iii)
Article 1 of Council Framework Decision (2008/913/JHA) of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law35,”;

(c)

for subsection (4) substitute—

“(4)
A person providing an on-demand programme service must take appropriate measures to ensure that any specially restricted material is made available by the service in a manner which secures that persons under the age of 18 will not normally see or hear it.
(4A)
The measures are to be proportionate to the potential of the material to harm the physical, mental or moral development of such persons.”;

(d)

in subsection (5)(c), omit “seriously”.

33.

In section 368F (advertising)36—

(a)

for subsection (2) substitute—

“(2)
Advertising of alcoholic drinks is only permitted in on-demand programme services if—
(a)
it is not aimed specifically at persons under the age of eighteen, nor does it, in particular, depict such persons consuming alcoholic drinks;
(b)
it does not link the consumption of alcohol to enhanced physical performance or to driving;
(c)
it does not create the impression that the consumption of alcohol contributes towards social or sexual success;
(d)
it does not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;
(e)
it does not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; and
(f)
it does not place emphasis on high alcoholic content as being a positive quality of alcoholic drinks.”;

(b)

in subsection (4)(e), after “physical” insert “, mental”.

34.

In section 368G (sponsorship)37—

(a)

for subsection (1A) substitute—

“(1A)
An on-demand programme service or a programme included in an on-demand programme service must not be sponsored—
(a)
for the purpose of promoting electronic cigarettes or electronic cigarette refill containers, or
(b)
by an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers.”;

(b)

in subsection (11)—

(i)

in paragraph (e), after “physical” insert “, mental”;

(ii)

after paragraph (e) insert—

“(ea)
directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;”.

35.

In section 368H (prohibition of product placement and exceptions)38—

(a)

for subsection (3) substitute—

“(3)
Product placement is prohibited in any of the following included in on-demand programme services—
(a)
children’s programmes;
(b)
news and current affairs programmes;
(c)
consumer affairs programmes;
(d)
religious programmes.”;

(b)

in subsection (4)—

(i)

at the end of paragraph (ba), omit “or”;

(ii)

after paragraph (ba) insert—

“(bb)
it is by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers, or”;

(c)

in subsection (6)(a), for “A” substitute “B”;

(d)

omit subsection (7);

(e)

in subsection (12)(e), after “physical” insert “, mental”;

(f)

after subsection 12(e) insert—

“(ea)
directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;”;

(g)

in subsection (15), for “subsection (15A)” substitute “subsections (15A), (15B) and (15C)”;

(h)

after subsection (15A) insert—

“(15B)
Subsection (4)(bb) applies only in relation to programmes the production of which begins after 31 October 2020.
(15C)
This section applies in relation to a programme the production of which began before 1 November 2020 as if—
(a)
subsection (3)(b) to (d) were omitted, and
(b)
subsection (6)(a) included a reference to a condition that the programme in which the product, service or trademark, or the reference to it, is included is—
(i)
a film made for cinema,
(ii)
a film or series made for a television programme service or for an on-demand programme service,
(iii)
a sports programme, or
(iv)
a light entertainment programme.”.

36.

In section 368I (enforcement)39—

(a)

in the heading, for “section 368D” substitute “sections 368CB and 368D”;

(b)

in subsection (1), after “has contravened” insert “section 368CB or”;

(c)

in subsection (2), after “contravention of” insert “section 368CB or”;

(d)

in subsection (3)—

(i)

after “complying with” insert “section 368CB or”;

(ii)

omit “of that section”;

(e)

after subsection (9) insert—

“(10)
A financial penalty may not be imposed on a provider of an on-demand programme service under subsection (1) or (9) in respect of an act or omission if the provider has been convicted of a criminal offence in respect of that act or omission.”.

37.

After section 368I insert—

“368IAEnforcement of section 368E(4)
(1)
Where the appropriate regulatory authority determine that a provider of an on-demand programme service has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively, the authority may do one or both of the following—
(a)
give the provider an enforcement notification under this section;
(b)
impose a financial penalty on the provider in accordance with section 368J.
(2)
The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a failure as mentioned in that subsection is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent failure.
(3)
An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368E(4) and for remedying the failure as may be specified in the notification.
(4)
The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—
(a)
cease providing or restrict access to—
(i)
a specified programme, or
(ii)
programmes of a specified description;
(b)
cease showing or restrict access to—
(i)
a specified advertisement, or
(ii)
advertisements of a specified description;
(c)
provide additional information to users of the service prior to the selection of a specified programme by the user for viewing;
(d)
take a specified measure that the appropriate regulatory authority consider to be appropriate for the purpose mentioned in section 368E(4);
(e)
make specified changes to the way in which a provider implements a measure it has taken for that purpose;
(f)
show an advertisement only with specified modifications;
(g)
publish a correction in the form and place and at the time specified; or
(h)
publish a statement of the findings of the appropriate regulatory authority in the form and place and for the time period specified.
(5)
An enforcement notification must—
(a)
include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and
(b)
fix a reasonable period for the taking of the steps required by the notification.
(6)
Where a person is required by an enforcement notification to publish a correction or a statement of findings, the person may publish with the correction or statement of findings a statement that it is published in pursuance of the enforcement notification.
(7)
It is the duty of a person to whom an enforcement notification has been given to comply with it.
(8)
That duty is enforceable in civil proceedings by the appropriate regulatory authority—
(a)
for an injunction;
(b)
for specific performance of a statutory duty under section 45 of the Court of Session Act 198840; or
(c)
for any other appropriate remedy or relief.
(9)
If a person to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368J.”.

38.

In section 368J (financial penalties)41—

(a)

in subsection (1)—

(i)

for “368BD or 368I” substitute “368BD, 368I or 368IA”;

(ii)

after “contravention” insert “or failure”;

(b)

after subsection (1) insert—

“(1A)
Where the provider in question is the BBC, the amount of the penalty is to be such amount not exceeding the amount for the time being specified in an order under section 198(6) or, if no such order is in force, £250,000, as OFCOM determine to be—
(a)
appropriate; and
(b)
proportionate to the contravention or failure in respect of which it is imposed.”;

(c)

in subsection (2), after “subsection (1)” insert “or (1A)”;

(d)

in subsection (3)(a), after “contravention” insert “or failure”;

(e)

in subsection (4), after “contravention” insert “or failure”.

39.

In section 368K (suspension or restriction of service)42—

(a)

in the heading, after “contraventions” insert “or failures”;

(b)

in subsection (1)(a)—

(i)

after “368BA” insert “, 368CB”;

(ii)

after “368BC” insert “, or has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively”;

(c)

for subsection (1)(b) substitute—

“(b)
that the imposition of one or more financial penalties or enforcement notifications under section 368BB, 368BD, 368I or 368IA has not resulted in the remedying of the contravention or failure in question; and”;

(d)

in each of subsections (1)(c), (2)(c) and (3), after “contravention” insert “or failure”.

40.

In section 368L (suspension or restriction of service for inciting crime or disorder)43—

(a)

in subsection (1), for paragraph (a) substitute—

“(a)
that—
(i)
the service has failed to comply with any requirement of section 368E(1) or (2) or sections 368F to 368H and that accordingly the provider has contravened section 368D(1), or
(ii)
the provider has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively;”;

(b)

in subsection (1)(b), after “due to” insert “, or has resulted in,”;

(c)

in subsection (1)(c), after “contravention” insert “or failure”;

(d)

in subsection (2), for paragraph (b) substitute—

“(b)
give details about the matters which, in their opinion, constitute the contravention or failure in question;”.

41.

In section 368O(2) (power to demand information)44—

(a)

in paragraph (a)—

(i)

for “or section 368D” substitute “, 368CB or 368D”,

(ii)

for “368CA” substitute “368BC”, and

(iii)

in sub-paragraph (ii), for “a contravention of either of those sections” substitute “such a contravention”;

(b)

after paragraph (a) insert—

“(aa)
the purposes of an investigation which the appropriate regulatory authority are carrying out in order to determine whether a person who appears to them to be or to have been a provider of an on-demand programme service has failed to take an appropriate measure in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively, where—
(i)
the investigation relates to a matter about which they have received a complaint, or
(ii)
they otherwise have reason to suspect that there has been such a failure;”.

42.

After section 368O insert—

“368OACo-operation with member States and the European Commission
(1)
OFCOM must take all necessary steps to provide such information and assistance to member States and to the European Commission as is required in order to comply with the Audiovisual Media Services Directive as it applies in relation to providers of on-demand programme services, in particular Articles 2, 3, 4 and 30a of the Directive.
(2)
Where OFCOM—
(a)
receive a request from a member State under Article 4 of the Audiovisual Media Services Directive relating to a provider of an on-demand programme service, and
(b)
consider that the request is substantiated under that Article,
they must ask the provider to comply with the rule identified in that request.”.

43.

In section 368P (application of Part 4A in relation to the BBC)45—

(a)

for subsection (1)(a) substitute—

“(a)
section 368D(3)(za) and (zb) (duties of providers of on-demand programme services);”;

(b)

in subsection (2)—

(i)

in paragraph (a), for “368C (duties of appropriate regulatory authority)” substitute “368C(4) (codes of conduct: food and beverage promotion and children’s programmes)”;

(ii)

omit paragraphs (d) and (g).

44.

In section 368Q (application of Part 4A in relation to the Welsh Authority)46—

(a)

for subsection (1) substitute—

“(1)
In section 368C (duties of appropriate regulatory authority), references to a provider of an on-demand programme service only include references to the Welsh Authority in the following subsections —
(a)
subsection (1), so far as it relates to section 368CB,
(b)
subsection (2), and
(c)
subsection (5).”;

(b)

omit subsection (3);

(c)

for subsection (5) substitute—

“(5)
Section 368I (enforcement of sections 368CB and 368D) applies in relation to the Welsh Authority only in the following cases—
(a)
a contravention of section 368D(1) consisting of a contravention of section 368E or 368F that relates to advertising;
(b)
a contravention of section 368D(3)(za).
(5A)
Section 368IA (enforcement of section 368E(4)) applies in relation to the Welsh Authority only in relation to a failure to take or implement a measure as mentioned in section 368IA(1) that relates to advertising.
(5B)
Sections 368K (suspension or restriction of service for contraventions) and 368L (suspension or restriction of service for inciting crime or disorder) apply in relation to the Welsh Authority only in a case mentioned in subsection (5)(a) or (b) or subsection (5A).”.

45.

In Schedule 12 (corresponding obligations of the BBC and Welsh Authority)47—

(a)

in paragraph 2(2)(b), after “section 368D” insert “and section 368E(4)”;

(b)

in paragraph 15, for sub-paragraph (1)(a) substitute—

“(a)
that the Welsh Authority have failed in any respect to perform any of their duties under—
(i)
paragraphs 12 to 14,
(ii)
paragraph 23A,
(iii)
section 368D(1) except so far as it relates to advertising,
(iv)
section 368D(2),
(v)
section 368D(3)(zza), (zb), (a) or (b), or
(vi)
section 368E(4) except so far as it relates to advertising; and”;

(c)

in paragraph 19—

(i)

in sub-paragraph (2)(b), for “and section 368Q(3)” substitute “and section 368E(4)”;

(ii)

for sub-paragraph (3) substitute—

“(3)
The requirements mentioned in this sub-paragraph are—
(a)
the requirements imposed by sections 368D(1) and 368E(4) so far as they relate to advertising, and
(b)
the requirement imposed by section 368D(3)(za).”.

(d)

in paragraph 23A—

(i)

in sub-paragraph (1), for “section 368Q(3)” substitute “section 368E(4)”;

(ii)

for sub-paragraph (2) substitute—

“(2)
But OFCOM must not give any such direction in relation to the handling and resolution of complaints about compliance with—
(a)
the requirements imposed by section 368D(1) or 368E(4) so far as they relate to advertising, or
(b)
the requirement imposed by section 368D(3)(za).”.

F1PART 4Video-sharing platform services

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 5Signal integrity

49.

During the period beginning with 1st November 2020 and ending with IP completion day, the Communications Act 200355 has effect as if, after section 347, there were inserted—

“CHAPTER 4ASignal integrity
347ASignal integrity
(1)
This section applies to a person who—
(a)
provides access to a service specified in subsection (4) (or part of such a service), or
(b)
manufactures equipment or apparatus which connects to an electronic communications network or an electronic communications service, or receives a television signal, enabling programmes included in such a service to be viewed.
(2)
A person to whom this section applies must not—
(a)
impose an overlay, for commercial purposes, on a programme which is included in a service specified in subsection (4), or
(b)
implement a modification of a programme which is included in such a service.
(3)
But the prohibitions in subsection (2) do not apply in relation to a service where—
(a)
the overlay or modification is expressly permitted by the person providing the service; or
(b)
the overlay or modification—
(i)
is expressly initiated or authorised by the recipient of the service for private use, such as an overlay resulting from a service enabling private communication between individuals, or from choices expressly made by the recipient of the service using the settings of the device through which programmes included in the service are viewed;
(ii)
is necessary for the operation of the device through which programmes included in the service are viewed, such as volume bars, search functions, navigation menus or lists of channels;
(iii)
is designed to assist people with disabilities to understand programmes included in the service, such as subtitles or sign language;
(iv)
is for the purpose of enabling a public authority to provide communications of vital importance to the public, such as information in an emergency; or
(v)
amounts to a reduction in the size of a data file to adapt a service for distribution, such as resolution or coding, without any modification of the content.
(4)
The services are—
(a)
a television programme service;
(b)
a digital additional television service;
(c)
an on-demand programme service.
(5)
In this section—
“overlay” means any text or moving or still images superimposed on a programme included in a service;
“modification”, in relation to a service, includes transmission of that service in a shortened form, or with alterations or interruptions, and substitution of advertising which is included in that service.
347BRegulator for signal integrity
It is the duty of OFCOM to enforce compliance with the prohibition in section 347A(2).
347CPower to demand information
(1)
OFCOM may require a person who appears—
(a)
to be or have been a provider of a service specified in section 347A(4),
(b)
to have contravened, or to be contravening, section 347A(2), or
(c)
to have information required by them for the purpose of carrying out their functions under section 347B,
to provide them with all such information as they consider necessary for carrying out those functions.
(2)
The information that may be required by OFCOM under subsection (1) includes, in particular, information that they may require in the course of carrying out an investigation to determine whether a person has contravened or is contravening section 347A(2).
(3)
OFCOM may not require the provision of information under this section unless—
(a)
the making of the demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM’s functions under section 347B;
(b)
they have given the person from whom it is required an opportunity of making representations to them about the matters appearing to them to provide grounds for making the request.
(4)
Any demand for information made by OFCOM under this section must be contained in a notice which—
(a)
is served on the person from whom the information is required,
(b)
describes the information that is required, and
(c)
sets out OFCOM’s reasons for requiring it.
(5)
A person who is required to provide information under this section must provide it in such manner and form and within such reasonable period as may be specified by OFCOM in the notice.
347DEnforcement
(1)
OFCOM may give a person a notice of intent under this section where they determine that there are reasonable grounds for believing that the person—
(a)
is contravening or has contravened section 347A(2), or
(b)
has failed to comply with a demand for information made under section 347C.
(2)
A notice of intent under this section is one which—
(a)
sets out the determination made by OFCOM;
(b)
specifies the contravention or failure in respect of which that determination has been made;
(c)
specifies the period during which the person has an opportunity to make representations; and
(d)
specifies the steps that OFCOM propose to require the person to take in order to remedy the contravention or failure.
(3)
A notice of intent under this section may also specify the amount of a penalty which OFCOM propose to impose in accordance with sections 347E and 347F.
(4)
A notice of intent under this section—
(a)
may be given in respect of more than one contravention or failure; and
(b)
if it is given in respect of a continuing contravention or failure, may be given in respect of any period during which the contravention or failure has continued.
347EEnforcement notices and penalty notices
(1)
This section applies where—
(a)
a person has been given a notice of intent under section 347D; and
(b)
the period allowed for the making of representations has expired.
(2)
Where, after considering any representations, OFCOM are satisfied that the person is contravening or has contravened section 347A(2), or has failed to comply with a demand for information made under section 347C, OFCOM may give the person either or both of the following—
(a)
an enforcement notice requiring the person to take steps to remedy that contravention or failure;
(b)
a penalty notice requiring the person to pay a penalty.
(3)
An enforcement notice—
(a)
must be given to the person without delay;
(b)
must include reasons for the requirement for the person to take the steps specified in the notice; and
(c)
must specify a period within which the person must take the steps specified in the notice.
(4)
It is the duty of the person to whom an enforcement notice has been given to comply with it.
(5)
That duty is enforceable in civil proceedings by OFCOM—
(a)
for an injunction;
(b)
for specific performance of a statutory duty under section 45 of the Court of Session Act 198856; or
(c)
for any other appropriate remedy or relief.
(6)
A penalty notice—
(a)
must be given to the person without delay;
(b)
must include reasons for the imposition of the penalty; and
(c)
must specify—
(i)
the period within which the penalty is to be paid,
(ii)
how the penalty is to be paid, and
(iii)
the consequences of not paying the penalty.
(7)
A penalty imposed by a penalty notice must be paid into the appropriate Consolidated Fund.
(8)
The reference in this section to the payment of an amount into the appropriate Consolidated Fund—
(a)
in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;
(b)
in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and
(c)
in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.
347FPenalties: further provision
(1)
A penalty notice may impose separate penalties for separate contraventions or failures specified in the notice of intent.
(2)
Where the notice of intent relates to a period of continuing contravention or failure, a penalty notice—
(a)
may not impose more than one penalty in respect of that period;
(b)
may impose a penalty in respect of each day on which the contravention or failure continues on or after a day specified in the penalty notice.
(3)
The amount of a penalty imposed on a person by a penalty notice under section 347E (other than a daily penalty mentioned in subsection (2)(b)), or, where more than one such penalty is imposed on a person by a penalty notice under that section, the sum of such penalties, is to be such amount not exceeding 10% of the turnover of the person’s relevant business for the relevant period as OFCOM determine to be—
(a)
appropriate; and
(b)
proportionate to the contravention or failure (or contraventions or failures) in question.
(4)
The amount of a penalty mentioned in subsection (2)(b) is to be such amount not exceeding £20,000 per day as OFCOM determine to be—
(a)
appropriate; and
(b)
proportionate to the contravention or failure in respect of which it is imposed.
(5)
For the purposes of this section the turnover of the person’s relevant business for a period—
(a)
is to be calculated in conformity with accounting practices and principles which are generally accepted in the United Kingdom;
(b)
is limited to the amounts derived by that person from the relevant business after deduction of sales rebates, value added tax and other taxes directly related to turnover;
(c)
where the person’s relevant business consists of two or more undertakings that each prepare accounts, is to be calculated by adding together the turnover of each, save that no account is to be taken of any turnover resulting from the supply of goods or the provision of services between them.
(6)
In this section—
“relevant business”, in relation to a person, means so much of any business carried on by the person as consists in either or both of the following—
(a)
an activity mentioned in section 347A(1)(a) or (b);
(b)
a business carried on in association with such an activity;
“relevant period”, in relation to a person’s relevant business, means—
(a)
except in a case falling within paragraph (b) or (c), the period of one year ending with the 31 March before the time when a notice of intent was given to the person under section 347D;
(b)
in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which the person has been carrying it on;
(c)
in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when the person ceased to carry it on.”.

PART 6Miscellaneous amendments

50.

In section 405(1) (general interpretation)57 of the Communications Act 2003—

(a)

for the definition of “the Audiovisual Media Services Directive” substitute—

““the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services58;”;

(b)

in the definition of “programme”, after “that service” insert “which is an individual item (irrespective of length)”.

51.

In section 115(1) (general interpretation) of the Wireless Telegraphy Act 200659, for the definition of “the Audiovisual Media Services Directive” substitute—

““the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services;”.

52.

Omit section 93(3) of the Digital Economy Act 201760.

PART 7Transitional provision

Quota for European Works53.

(1)

This regulation applies where a person is providing an on-demand programme service immediately before 1st November 2020.

(2)

The person is to be taken to comply with the requirement of section 368CB(1) of the Communications Act 2003 in relation to the year 2020 if the person complies with that requirement in relation to November and December 2020.

Advance notification for on-demand programme and video-sharing platform services54.

(1)

Paragraph (2) applies where a person is providing an on-demand programme service immediately before 6th April 2021 and—

(a)

there is a significant difference between the service being provided and the service that was notified to the appropriate regulatory authority under section 368BA(1) of the 2003 Act, and

(b)

that significant difference is a change that may affect the determination of jurisdiction in accordance with paragraphs 2, 3 and 4 of Article 2 of the Audiovisual Media Services Directive.

(2)

Section 368BA(2) of the 2003 Act has effect as if the requirement to give a notification of the significant difference before providing the service with a significant difference were a requirement to give a notification of the significant difference before 6th May 2021.

(3)

Paragraph (4) applies where a person is providing a video-sharing platform service immediately before 6th April 2021.

(4)

Section 368V(1) of the 2003 Act has effect as if the requirement to give a notification of the person’s intention to provide the service before beginning to provide it were a requirement to give a notification before 6th May 2021 that the service is being provided.

(5)

In this regulation—

“the 2003 Act” means the Communications Act 2003;

“the Audiovisual Media Services Directive” has the same meaning as in the 2003 Act (see section 405(1) of that Act);

“on-demand programme service” has the same meaning as in the 2003 Act (see section 368A of that Act);

“video-sharing platform service” has the same meaning as in the 2003 Act (see section 368S of that Act).

Signal integrity55.

(1)

Section 16 of the Interpretation Act 1978 (general savings on repeal)61 applies in relation to the expiry of Chapter 4A of Part 3 of the 2003 Act (see regulation 49) with the modification in paragraph (2).

(2)

OFCOM may not begin or continue any investigation into a signal integrity breach, or give a notice under section 347D or 347E of the 2003 Act in respect of a signal integrity breach, unless the breach is brought to OFCOM’s attention before the final complaints day.

(3)

A “signal integrity breach” means either or both of the following—

(a)

a contravention of section 347A(2) of the 2003 Act;

(b)

a failure to comply with a demand for information made under section 347C of that Act.

(4)

The “final complaints day” is the last day of the period of 20 working days beginning with IP completion day.

(5)

In this regulation—

“the 2003 Act” means the Communications Act 2003;

“working day” means a day other than—

(a)

Saturday or Sunday, or

(b)

a day which is a bank holiday under the Banking and Financial Dealings Act 197162 in any part of the United Kingdom.

John Whittingdale

Minister of State for Media and Data

Department for Digital, Culture, Media and Sport

1.05 p.m. on 30th September 2020

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement certain provisions of Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities (“the amending Directive”). Directive 2010/13/EU is known as “the AVMSD”. These Regulations make amendments to the Broadcasting Acts of 1990 (c. 42) and 1996 (c. 55) and the Communications Act 2003 (c. 21) (“the 2003 Act”).

Audiovisual media services comprise broadcast television and on-demand programme services (a service which provides programmes online, at a time chosen by the viewer, see section 368A of the 2003 Act). The main new features of the revised AVMSD include expansion of its scope to encompass dissociable sections of a service, the principal purpose of which is to provide programmes to the general public. As an increasing number of consumers access audiovisual content online, the AVMSD also seeks to level the playing field between different types of providers. It removes the distinction between broadcast television and on-demand programme services in the application of rules to protect audiences from harm. The AVMSD reinforces protection against incitement to violence or hatred and public provocation to commit terrorist offences. Audiovisual media services are required to protect minors from harmful content using measures proportionate to the potential harm, including through selecting the time of the broadcast, age verification tools or other technical measures. Regulatory authorities must establish and keep an up to date list of providers of audiovisual media services. Lastly, the scope of measures to increase accessibility to audiovisual media services for disabled persons is widened to encompass all disabilities, not just those concerning impairment of sight and hearing.

Part 2 makes amendments in respect of broadcast television services. The details of content standards for broadcast television are contained in OFCOM’s Broadcasting Code (available at: https://www.ofcom.org.uk/__data/assets/pdf_file/0016/132073/Broadcast-Code-Full.pdf or from OFCOM, Riverside House, 2a Southwark Bridge Road, London, SE1 9HA). In setting standards, OFCOM must secure the standards objectives set out in the 2003 Act, see in particular section 319 of, and Schedule 11A to, that Act. Part 2 makes amendments to those provisions, and changes will also be made to the Broadcasting Code.

Part 3 makes amendments in respect of on-demand programme services. The content standards are contained within Part 3 itself and are amended (see sections 368E to 368H). The Regulations ensure that standards and advertising rules for on-demand programme services are equivalent to those for broadcast television. In addition, there is a new requirement for a 30% quota for European works on services (being works originating from certain European countries, or from qualifying co-productions involving those states), to be assessed over the course of a year. Exemptions are available where the service has a low turnover or a low audience or it is impracticable or unjustified for those subsections to apply because of the nature or theme of the service – see section 368CB of the 2003 Act. There are bespoke provisions relating to the application of Part 3 to the BBC and the Welsh Authority which are amended (see sections 368P and 368Q of, and Schedule 12 to, the 2003 Act).

The AVMSD also regulates video-sharing platform services for the first time. The Regulations insert a new section Part 4B into the 2003 Act to deal with this. See section 368S for the definition of video-sharing platform service: it is a service providing videos online to members of the public where the person providing the service has general control only over the organisation of the videos on the service, and not over the videos which are available.

The AVMSD requires providers of video-sharing platform services to take ‘appropriate measures’ to achieve specified protection purposes. The protection purposes are:

to protect minors from content and advertising that might impair their physical, mental or moral development;
to protect the general public from content and advertising that incites violence or hatred towards people with certain protected characteristics; and
to protect the general public from content and advertising that is a criminal offence under EU law to circulate (i.e. terrorist content, content containing child sexual exploitation and abuse, and racist/xenophobic content).

The system does not involve direct regulation of content on services, instead, there is regulation of the systems which providers of video-sharing platform services have in place. This reflects the limited level of control that service providers have over the content provided by their services, as material is uploaded by third parties (see section 368Z1 and Schedule 15A of the 2003 Act). Service providers have to take “appropriate measures” to deliver the protection purposes, such as having in place and applying certain terms and conditions of service for users; establishing and operating flagging and reporting mechanisms, age verification systems, systems to rate the content and easy-to-access complaints procedures; and the provision of parental control systems. However, there are greater controls for content which is under the direct control of service providers, being audiovisual commercial communications (advertising) that are marketed, sold or arranged by service providers (see section 368Z).

Section 368T makes provision for the appropriate regulatory authority for Part 4B. In the first instance it will be OFCOM, but OFCOM has the power to designate any body corporate meeting certain conditions to be a co-regulator. The enforcement powers are in sections 368Z2 to 368Z8, and include power to give enforcement notices and to impose a financial penalty. There is power for the regulatory authority to charge a fee to cover the costs of regulation in section 368Z9, to demand relevant information in section 368Z10, and in section 368Z11 for OFCOM to from time to time produce and publish reports about compliance by providers with the requirements.

There are new duties for the regulatory authority to co-operate and provide information and assistance to other member States and the European Commission in order to achieve compliance with the AVMSD: see section 335A (in respect of relevant broadcasters), section 368OA (in respect of providers of on-demand programme services) and section 368Z12 (in respect of providers of video-sharing platform services) of the 2003 Act.

Part 5 concerns signal integrity measures which prohibit audiovisual media services from being shortened, altered, interrupted, or overlaid for commercial purposes, without the explicit consent of the media service provider (see sections 347A to 347F). These provisions are subject to “sunsetting” and will cease to have effect on IP completion day (see regulation 49).

Part 7 contains transitional provisions. Regulation 53 concerns the quota for European works and deals with the issue of the requirement for the remainder of this year. Regulation 54 concerning advance notification relates to the fact that the amendments inserting section 368B(4) (advance notification of a change to an on-demand programme service) and s368V (advance notification of provision of a video-sharing platform service) do not come into force until 6th April 2021. Existing service providers at this date will have a month to provide the necessary notification. Regulation 55 specifies the time period within which matters relating to breach of the signal integrity provisions can be brought to OFCOM’s attention for potential enforcement action.

A Transposition Table outlining transposition of Directive (EU) 2018/1808 is available alongside these Regulations at www.legislation.gov.uk and from the Department for Digital, Culture, Media and Sport at 100 Parliament Street, London SW1A 2BQ.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available alongside these Regulations and from the Department for Digital, Culture, Media and Sport at 100 Parliament Street, London SW1A 2BQ.