United Kingdom: Government Considers Expanding Regulations for Video on Demand Services

On August 31, 2021, the government of the United Kingdom (U.K.) published a public consultation seeking public opinion on whether video on demand (VoD) services, such as Netflix, Amazon Prime Video, and Apple TV+, should be regulated in the same manner as traditional broadcast media. The consultation is also asking for opinions on whether VoD services that are based outside the U.K. and are thus not currently subject to U.K. regulations but whose target audiences reside in the U.K. should be brought within the U.K.’s jurisdiction. The consultation does not address advertising rules or restrictions, or the introduction of quotas on VoD services.

VoD has seen a rapid rise in popularity over the past several years, with 78% of households in the U.K. watching content provided by VoD at least monthly. The material shown on these services is not subject to the same rules contained in the Broadcasting Code of the U.K.’s communication services regulator, Ofcom, which applies to broadcast media in the U.K. The Broadcasting Code is required under the provisions of the Communications Act 2003 and the Broadcasting Act 1996 and covers issues such as standards in programing, harmful and offensive material, advertising, sponsorship, product placement, and the fair treatment of individuals and organizations. (Consultation § 1.)

Some services, such as Netflix and Apple+, are not subject to any U.K. regulations and are only required to meet standards, if any exist, in the jurisdiction in which they are based. The government has noted that there is not much regulation of VoD services outside the EU, and that VoD services based outside the U.K. provide “no legal regulatory redress for UK citizens.” (§ 3.0.)

While some VoD providers have introduced their own set of standards, the government has expressed concern that this “is done on a voluntary and ad hoc basis” and, as a result, has led to inconsistencies and varying protection across the different platforms. The government has also noted that there are few rules that protect viewers of VoD from “misleading health advice or pseudoscience documentaries on climate change.” Consequently, the government is considering aligning the standards across all types of services, both broadcast and VoD.

The consultation is seeking views on whether the audience protection from harmful content displayed by VoD services is adequate. The government has acknowledged the need to ensure that freedom of expression, as provided by article 10 of the European Convention on Human Rights, is not interfered with, and it intends that any changes be proportionate. The government also aims to ensure that any small or niche services be subject to proportionate regulations in order to guarantee that they are not required to comply with the entire Broadcasting Code. (§ 5.4.)

The consultation is also examining whether VoD services not based in the U.K. should be brought within the U.K.’s jurisdiction to ensure that these providers can be held accountable in the U.K. As noted above, the government has acknowledged that any changes should be proportionate and that smaller VoD services based outside the U.K. that provide content to U.K. audiences would not be brought within its jurisdiction. (§ 3.2.)

If the overall response to the proposals is positive, VoD providers could be required to comply with new rules that are stricter than the ones they are currently subject to. Any changes will “improve upon EU aligned provisions under the Audiovisual Media Services Directive with regulations that are designed in the best interests of UK audiences.” (§ 1.)

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