Clause 37 - Tier 1 services

Media Bill – in a Public Bill Committee at 2:15 pm on 7 December 2023.

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Photo of Stephanie Peacock Stephanie Peacock Shadow Minister (Digital, Culture, Media and Sport) 2:15, 7 December 2023

I beg to move amendment 22, in clause 37, page 77, leave out lines 6 to 9.

This amendment, together with Amendments 23 to 27, is intended to pave the way for the regulation of all video on demand services, rather than just those designated as “Tier 1” services.

Photo of Martin Vickers Martin Vickers Conservative, Cleethorpes

With this it will be convenient to discuss the following:

Amendment 23, in clause 37, page 77, line 11, leave out

“that is a Tier 1 service”.

See explanatory statement to Amendment 22.

Amendment 24, in clause 37, page 77, line 14, leave out from “of” to the end of line 16 and insert

“on-demand programme services and non-UK on-demand programme services”.

See explanatory statement to Amendment 22.

Amendment 25, in clause 37, page 77, line 28, leave out

“that are Tier 1 services”.

See explanatory statement to Amendment 22.

Amendment 26, in clause 37, page 77, line 37, leave out “Tier 1” and insert

“the regulation of on-demand programme”

See explanatory statement to Amendment 22.

Amendment 27, in clause 37, page 78, line 1, leave out “Tier 1” and insert

“the regulation of on-demand programme”.

See explanatory statement to Amendment 22.

Photo of Stephanie Peacock Stephanie Peacock Shadow Minister (Digital, Culture, Media and Sport)

I am pleased that we are making good progress in scrutinising the Bill, having reached part 4 on the regulation of on-demand services. We have spoken at length about the growth and popularity of on-demand services, so it may come as a surprise to some members of the public that the content on most of our video on-demand services is not regulated. We are all used to high standards, thanks to the high-quality content provided by PSBs, which we see when we turn on our television set, and the regulatory landscape that complements that content; but it is easy not to consider whether regulatory standards apply to content on demand. Indeed, the high standards set by our PSBs have played a big part in creating an atmosphere in which newer streaming services have had to provide content of the highest standards. They have to model best practice to compete with traditional television.

That has put us on a good footing, and the streaming services and on-demand providers I have spoken to actually welcome the regulatory clarity that a new regime will provide. Currently, if a complaint is received against a piece of on-demand content, the service that has provided that content has nowhere to point towards in handling that complaint, and does not have to prove compliance with a regulatory regime. Part 4 brings on-demand services under the scope of Ofcom, and gives it new responsibilities, including to follow a new on-demand code. It is a good thing for viewers and providers, who will benefit from consistent high standards in the on-demand space.

However, I have concerns regarding the proposed tiered approach to the framework. Clause 37 and schedule 5 both set out that only tier 1 services will be regulated under the new regime. The only real information we have about how tier 1 will be defined, however, is that it will be based on size, which is determined by audience figures, turnover and catalogues.

In many areas of the Bill, there has rightly been a desire to avoid being too prescriptive in the primary legislation in order to allow flexibility in the light of rapidly changing technological advances and viewer habits, but in the uncertainty and lack of detail about on-demand services has been troublesome for some providers. Netflix said in its submission to the Culture, Media and Sport Committee that without clarity on scope, there was no way for it to tell whether the scope will ultimately be discriminatory.

I know that there are good intentions behind taking what might be considered to be a proportionate approach that avoids placing new burdens on smaller video services that are trying to grow and compete with much larger services. However, the approach could create perverse incentives. One can imagine smaller services becoming averse to growing, for fear of meeting the regulatory threshold and having to contort their services to comply.

Putting all services on a level playing field will ensure that no service is deterred from competing with those at the very top, and no one at the bottom can feel that the situation is unfair, or that they are being unfairly given burdens that others are not. Further, everyone will be given an entire year’s grace period in which to become compliant; that will ensure that those who are less prepared can come up to speed.

Perhaps even more pressing than the impact of the tiered approach on providers, however, is the effect that it will have on viewers. As the CMS Committee highlighted, the Government said that part of their purpose in introducing the provisions was

“to protect audiences from the potential harm arising from the gaps in the existing regulatory framework” and to

“ensure UK audiences receive a similar level of protection no matter how they watch television— whether it be live or on-demand.”

Clearly, requiring only the largest video-on-demand providers to abide by the new regulatory scheme would not achieve that aim. For the average viewer who does not invest their leisure time in understanding the nuances of a tier 1 service, a category in which I believe most of the general public will fall, how will such a person possibly be aware whether they are watching a regulated service?

To strive to create a consistent regulatory approach between broadcast and on-demand services, while simultaneously creating an inconsistency within the regulation for on-demand services, seems counterintuitive. Viewers deserve to have certainty over the level of protection they are being provided with. Put simply, I believe that the best way to meet that aim is for the new video-on-demand code, and the various other changes in this part of the Bill, to be applied universally across all video-on-demand services watched by UK audiences.

Such a move has been also recommended by everyone from the Culture, Media and Sport Committee and the Voice of the Listener & Viewer to Amazon and Netflix. Including all services would provide the harmonisation in regulatory approach that I believe the clause sets out to achieve. It would get rid of confusion for viewers and prevent any definition from being discriminatory or drawing what could have been a somewhat arbitrary line between services.

If the Government cannot accept my amendments, which would pave the way, I would be grateful if the Minister at least explained their current plans for the definition of tier 1 at this stage, and detail how they will work to create consistency in experience for viewers. I believe that we are on the same page about the importance of the new framework and what it could achieve, and I hope we can work constructively to ensure that it is the best it can be.

Photo of John Whittingdale John Whittingdale The Minister of State, Department for Culture, Media and Sport, Minister of State (Department for Science, Innovation and Technology)

I welcome the hon. Lady’s general support for what the Government are trying to do by bringing video-on-demand services within the scope of regulation. We believe it is important for audiences to be appropriately protected when watching TV on demand. We will do that through what we see as a proportionate regulatory approach, which will ensure that all the mainstream streaming services that target UK audiences are subject to rules similar to the existing ones governing UK TV broadcasters.

Under the Bill, any UK on-demand service used by a PSB other than the BBC will automatically be designated as tier 1. Alongside that, other mainstream TV-like video-on-demand services will be designated after the Media Bill comes into force, following a review of the market by Ofcom. I can tell the hon. Lady that all the streaming services with which most people are familiar will certainly come under tier 1, but at this stage we cannot publish a list or the general categories to determine it because the market is rapidly evolving. Once again, as elsewhere in the Bill, we want to have a degree of flexibility and we believe that regulatory change needs to be proportionate and practical.

At the moment, more than 270 video-on-demand services are notified with Ofcom. Many of them simply do not provide TV-like content and nor are they widely accessible, so it is important to balance audience protection with freedom of expression, and to avoid placing unnecessary burdens on them. Consultations that have been conducted already tell us that extending tier 1 regulations to the smallest niche services, such as a football team’s on-demand service, could unfairly and unnecessarily penalise them with little or no benefit to audience protection.

Photo of Andy Carter Andy Carter Conservative, Warrington South

I understand what my right hon. Friend is saying, and I am very supportive of a tier system, but a broadcaster on linear TV, be it a football station or a new start-up, would be bound by the Ofcom broadcasting code. Why would rules in the new online environment be different from those for someone who holds a broadcast licence in the linear world? That does not seem to make a lot of sense.

Photo of John Whittingdale John Whittingdale The Minister of State, Department for Culture, Media and Sport, Minister of State (Department for Science, Innovation and Technology)

My hon. Friend is right that at the moment linear TV channels are required to be licensed by Ofcom, but in the new world it is much more likely that we are going to see quite small niche channels, which serve a particular audience. There has been a proliferation of such services, which simply could not really have taken place in the old linear world. That is why the Government felt it was right that new services that command considerable audiences and target a broad range of viewers should be subject to the same sorts of requirements as exist for linear broadcasters.

However, it would be excessive to place those requirements on every single new notified VOD service, including those that are relatively small and serve very small and defined audiences. If it is determined that a small service has the potential to cause harm, the Bill allows that it can be designated as tier 1. The Government retain the power to do so if there is evidence supporting a need for it. That will allow us to ensure that regulation can be updated or added to.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

I can very much see the logic that the Minister describes. To recall my private Member’s Bill on small-scale DAB, one of the issues was that people could use a laptop to set up an online radio station in their bedroom with no regulation at all, or they had to jump up to being a large broadcasting operation. I agree with the Minister that there is a logic to having a tiered system, so that we do not have either no regulation at all for those online or, for any form of broadcasting, regulation on the level of a very large operation.

Photo of John Whittingdale John Whittingdale The Minister of State, Department for Culture, Media and Sport, Minister of State (Department for Science, Innovation and Technology)

My hon. Friend is right that there are different levels of service that require different amounts of monitoring and oversight. To my hon. Friend the Member for Warrington South, I would say that UK-based on-demand services are already required to abide by the on-demand programme service rules, which are less restrictive than the Ofcom regulations but control things such as hate speech and have basic protections for young audiences. It is appropriate that we determine the appropriate level of regulation on the basis of the audience and the size of the station. As I say, Parliament will be given further information that sets out the list or description of services at least five sitting days ahead of any regulation, so there will be transparency and oversight. For that reason, we do not feel it necessary to bring all the existing video-on-demand services within tier 1 at this time.

Photo of Stephanie Peacock Stephanie Peacock Shadow Minister (Digital, Culture, Media and Sport)

I am, of course, aware of the complexity of removing the tier 1 element from the Bill at this stage, and I acknowledge that agreeing to this set of amendments would create difficulties for the Bill more generally. I was aware of that when drafting the amendments, but I wanted to raise the issue that the Bill is perhaps not clear enough about—what the video-on-demand provisions will apply to and how audiences would receive the certainty they need. The Minister has alleviated some of those concerns today, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Kirsty Blackman Kirsty Blackman Shadow SNP Spokesperson (Cabinet Office)

I beg to move amendment 38, in clause 37, page 77, line 34, at end insert—

“(5A) In section 368C (Duties of the appropriate regulatory authority), after subsection (6) insert—

‘(6A) The appropriate regulatory authority must draw up, and from time to time review and revise, appropriate guidance relating to the duty of providers of on-demand programme services to ensure the archiving and retrieval of programming delivered by these services for the purposes of preserving cultural heritage.

(6B) The guidance under subsection (6A) must include guidance on providers’ relationships with—

(a) the British Library;

(b) the National Library of Scotland (Leabharlann Nàiseanta na h-Alba);

(c) Llyfrgell Genedlaethol Cymru (the National Library of Wales);

(d) the Library of Trinity College Dublin;

(e) the British Film Institute.’”

This amendment would place a duty on OFCOM (or other regulator) to draw up guidance aimed at streaming services giving them duties to liaise with legal deposit libraries and the BFI to ensure that appropriate measures and strategies are in place for the archiving of video.

Photo of Martin Vickers Martin Vickers Conservative, Cleethorpes

With this it will be convenient to discuss new clause 9—National Television Archive—

“(1) The Communications Act 2003 is amended as follows.

(2) In Part 4A, after section 368R, insert—

‘368RA Contributions towards maintenance of national television archive

(1) OFCOM shall, for the financial year which includes the commencement of this section and each subsequent financial year, determine an amount which they consider it would be appropriate for a provider of on-demand programme services to contribute, in accordance with this section, towards the expenses incurred by a nominated body in connection with the maintenance by it of a national television archive.

(2) In this section “a nominated body” means such body as may for the time being be nominated by OFCOM for the purposes of this section, being a body which—

(a) appears to OFCOM to be in a position to maintain a national television archive, and

(b) is engaged in preserving the cultural and social heritage in one of more of—

(i) Scotland,

(ii) Wales,

(iii) Northern Ireland, or

(iv) England.

(3) A provider of on-demand programme shall pay to OFCOM, in respect of each of the financial years mentioned in subsection (1), such amount as they may notify to them for the purposes of this section, being such proportion of the aggregate amount determined for that year under that subsection as they consider appropriate (and different proportions may be determined in relation to different persons).

(4) Any amount received by OFCOM by virtue of subsection (3) shall be transmitted by them to a nominated body.’”

This new clause would extend the current provisions under the Broadcasting Act 1990 that pertain to Channel 3, Channel 4, and Channel 5 to on-demand programme providers, namely that they make a contribution towards the costs of a national television archive.

Photo of Kirsty Blackman Kirsty Blackman Shadow SNP Spokesperson (Cabinet Office)

It is a pleasure to take part in this Committee again today. Amendment 38 and new clause 9 relate to the archiving of television content.

The television archives are pretty fabulous. A lot of stuff is available there, but there are also significant gaps, including some of the earliest broadcasts. Earlier this year, Aberdeen celebrated 100 years of radio broadcasting. Aberdeen has been a hub of Gaelic radio broadcasting for quite some time, which is slightly bizarre given the small number of Gaelic speakers in Aberdeen. Unfortunately, we do not have access to some of the earliest broadcasts, because they were not properly archived or saved. We have seen that issue through the years with a number of different things.

The amendment is meant to probe. It is a request for the Minister to have a look at the issue and highlight the disparities in relation to it. Amendment 38 asks the regulatory authority to

“draw up, and…review and revise, appropriate guidance relating to the duty of providers of on-demand programme services to ensure the archiving and retrieval of programming” to ensure that our cultural heritage is preserved. I do not think that it is unreasonable for the Government to require that of agencies or on-demand programmers that are providing programmes that are part of our cultural heritage.

Ask people whether they have watched “Bridgerton”, “The Crown” or some of the different things on the streaming services that provide on-demand programming; they are now part of the cultural heritage of these islands. They are important to people and will be considered by historians of the future as programmes or entertainment that shaped some of our thinking and influenced society. It is important to have a level of guidance to ensure that the appropriate measures and strategies are in place, and I do not think that it is unreasonable for the Government to take a role in that so that our heritage is properly preserved.

New clause 9 attempts to correct a disparity—an unfairness—in the systems around archiving. Currently, some of the organisations required to archive, such as the BBC, channel three, Channel 4 and Channel 5, have to pay for the archive service, while some do not. There is an inherent unfairness in the requirement for them all to include their footage within the archives given that the BBC, channel three, Channel 4 and Channel 5 have to pay for it while the on-demand programme providers do not have to make a contribution.

All the organisations placing things in the national television archives, and in the Scottish, Welsh and Irish archives, should have to make a contribution, whether large or not. It is up to Ofcom to decide on what the size of the contribution should look like, but asking the BBC to pay a contribution while not asking other organisations to seems fairly odd and lopsided. I would appreciate it if the Minister let me know that he is aware of the issue and will give consideration to remedying it. Whether he actually chooses to do that is up to the Government, but will he give consideration to the possibility of making changes to the system?

On clause 38, it is important these things are archived. Could the Minister—even if he cannot today—provide information on how archiving decisions are made? Will the Government consider ensuring a level of consistency in the decisions around archiving so that on-demand programmes are included if they are likely to make a significant cultural contribution or contribution to society? In that way, we could ensure that history is properly recorded, properly saved and in a safe place.

Everybody recognises that the British Film Institute, the British Library and the National Library of Scotland are safe places that are good at looking after things—whether film or historical documents. Their job is to preserve those, whereas the job of the BBC, channel three or Netflix is not necessarily to ensure that programmes are preserved for future generations. I thank the Minister in advance for any reassurance that he has his eye on this issue.

Photo of Stephanie Peacock Stephanie Peacock Shadow Minister (Digital, Culture, Media and Sport) 2:30, 7 December 2023

Preserving television and visual content is a way of preserving our history. There are already some amazing examples of how television is collected and archived. The British Film Institute, for example, looks after one of the largest and most important collections of film and television in the world, where teams of experts ensure that the collective programmes are accessible for generations to come. In particular, the BFI’s priceless television archive, which includes programming from the 1950s, can help us to tell with fascinating clarity the story of British television and Britain at large over the last 70 years. Since 2016, the BFI has automatically recorded various channels, all day, on an on-air and off-air basis, meaning that the recording is complete with adverts, trailers and announcements. That archive will only become more precious as the years pass.

The BFI archive is complemented by the BBC Archive, which contains over 1.5 million items recorded on everything from film to videotape to digital files. Despite the range of the BBC Archive, there are still programmes missing from that collection, particularly from earlier years of broadcasting. The BBC cites a few reasons for that, including limited means of recording, the expense of recording and tapes of which there was only one copy simply being lost. It also says that limited records were also the result of the fact that there was no requirement to build an archive. It was not until 1979 that the advisory committee on archives recommended that a requirement to keep archives be included in the charter, at which point programmes began more routinely to be kept for good.

It might be easy to assume that archiving in the digital age might be a given, given the capacity of the internet to host vast amounts of information that is then available at our request. However, even digital files and the cloud ultimately rely on physical infrastructure, and the nature of the internet means that there is more content than ever that requires such storage. I therefore support amendment 38, which seeks to set guidance on the archiving and retrieval of on-demand programming. That is not only because we cannot take it for granted that such programming will be properly archived, but because it matters how and where those archives are stored and whether something ends up being in the public interest.

I hope that, in the years to come, we can preserve broadcasting as an insight into our society and culture. To achieve that, we will need input from and collaboration between on-demand programming services and those institutions that can help with archiving, such as the national libraries and the BFI. I believe that amendment 38 recognises that and looks to set us up for a future that values the past.

On new clause 9, although I am interested to hear more about the idea of a nominated body being responsible for a centralised national archive, I am not sure about the detail of how it would work. I feel that I should ask, on behalf of the on-demand services implicated here, what the forecasted cost implications are and on what basis a contributory system has been identified as the most effective and efficient way for services to be part of the effort of archiving. I wonder whether, perhaps, the way forward should not be assumed, as it is in the clause, but rather should hinge on any guidance that is issued as a result of amendment 38, particularly with reference to using those archives and resources that are already working well.

I emphasise that I am keen to support the archiving of our television services, but I want to ensure that the way that is done is carefully considered and properly consulted on.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (International Development), Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Cabinet Office), Shadow PC Spokesperson (International Trade), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Chief Whip

I rise briefly to support the amendment in the name of my hon. Friend the Member for Aberdeen North, as well as the new clause, and to reassure her and the Committee. In her amendment, she refers to Llyfrgell Genedlaethol Cymru: the National Library of Wales. It maintains the Archif Film Theledu Cymru—the Welsh Film and Television Archive—which is a highly successful development in Aberystwyth.

I also note that these archives have monetary value. In passing, ITV in Wales, for example, has a regular programme with clips from the ’60s, illustrating Welsh life. It fills half an hour—more than fills it. It is not just to fill space. It is very interesting, particularly to people who see culture in its broadest sense: not high culture, but the entire scope of human activity in Wales. It is available in the National Library of Wales, but is also available to broadcasters.

Photo of John Whittingdale John Whittingdale The Minister of State, Department for Culture, Media and Sport, Minister of State (Department for Science, Innovation and Technology)

I think that there is general agreement across the Committee about the importance of archiving television programmes that are of cultural significance. That is already the case, as we know, for the public service broadcasters. Indeed, I can recall the excitement when various episodes of, for instance, “Doctor Who” or “Only Fools and Horses” were rediscovered, having been lost before the requirement for archiving was in place. The hon. Member for Aberdeen North is absolutely right that there are now examples of programmes or series commissioned by on-demand services that are of similar value—she mentioned “Bridgerton”, for instance. I was fortunate enough to go and see the final episode of “The Crown”, which Netflix showed us a couple of night ago, in advance of its being made available, and that undoubtedly will be seen for a long time to come as a culturally important programme that needs to be preserved.

Where we differ slightly is that the Government’s view is that a non-legislative approach is best able to achieve the objective of archiving on-demand content. The BFI is extremely active in this area and works directly with mainstream services such as Netflix and Amazon. The BFI National Archive has already entered into initial partnerships with Netflix and Amazon to provide both financial contributions and a curated selection of their UK content. The BFI is also talking to other subscription video-on-demand platforms and will continue to do so as it moves ahead with its Screen Culture 2033 ambitions.

We are pleased that considerable progress is being made and we do not want to impose unnecessary additional requirements on organisations at this time. Therefore we do not see a necessity to legislate at the moment.

Photo of Kirsty Blackman Kirsty Blackman Shadow SNP Spokesperson (Cabinet Office)

I appreciate that, and I appreciate the work that the BFI is doing on this. In the event that the BFI found it particularly difficult to get an agreement with an on-demand service, would the Government assist with some of the conversations in order to ensure that the cultural heritage is preserved, if they were asked to give some level of assistance or if the BFI were struggling with some level of intransigence?

Photo of John Whittingdale John Whittingdale The Minister of State, Department for Culture, Media and Sport, Minister of State (Department for Science, Innovation and Technology)

I recall discussing this matter with the BFI some years ago and I absolutely share its wish, and indeed the hon. Lady’s wish, that it should have access to any of the programming content that it felt was important to preserve. I hope that the circumstances that she describes will not happen, but should they do so, I or whoever is holding my position would, I hope, be keen to assist in those discussions with any video-on-demand provider.

Finally, I come to the amendment that the hon. Lady tabled. Amendment 38 includes Trinity College Dublin, which of course is not a UK institution, and we do not feel that it would be appropriate to instruct the deposit of important works with an overseas institution. For that reason, and for the reasons that I have described, we cannot accept the amendment.

Photo of Kirsty Blackman Kirsty Blackman Shadow SNP Spokesperson (Cabinet Office)

I thank the Minister very much and genuinely appreciate the way in which he has approached this amendment. I am pleased that around the room we are happy and keen to see the archiving of lots of culturally important television footage and on-demand footage as well. I believe, from what the Minister has said, that he has a good handle on this, and I am glad to hear that he does feel that it is important enough for the possibility of intervention in the future should a significant gap be identified. Hopefully, as he says, we will not get to the point at which that happens. Given the Minister’s comments, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Martin Vickers Martin Vickers Conservative, Cleethorpes

With this it will be convenient to discuss the following:

Amendment 28, in schedule 5, page 142, line 34, at end insert—

“(3A) In preparing or revising a code under section 368HF, OFCOM must take account of how principles will apply in a video-on-demand context where there is a library of content where users choose what programmes to watch and when.”

This amendment would place a requirement on Ofcom, when preparing the Video on Demand code, to consider how principles will apply in a VoD context where there is a library of content where users choose what programmes to watch and when.

Schedules 5 to 7.

Photo of John Whittingdale John Whittingdale The Minister of State, Department for Culture, Media and Sport, Minister of State (Department for Science, Innovation and Technology)

We now come to the core of this part of the Bill, which is the extension of regulation to the major video-on-demand services. Take-up has grown dramatically in recent years, and many of them make a significant contribution to the UK economy. Audiences now have access to thousands of hours of their favourite television programmes at the touch of a button, but providers are not regulated in the UK to the same extent as linear TV channels, and some mainstream international services are not regulated in the UK at all. That means that TV-like content in the UK is regulated differently depending on how audiences choose to watch it.

Following public and industry consultation, the Government are giving Ofcom powers to draft and enforce a new video-on-demand code aimed at mainstream TV-like on-demand services, referred to in the Bill as tier 1 services. Those changes mean that children will be better protected from harmful material and audiences will be better able to complain to Ofcom if they see something that they are concerned about. It is intended to ensure that the major services engaging and profiting from UK audiences are subject to similar obligations on UK broadcasters, no matter where they are based.

As set out in proposed new sections 368HA and 368HB to the Communications Act 2003, any UK on-demand service used by PSBs, except the BBC, to fulfil their public service remit will be designated as tier 1. As we discussed, the Secretary of State will also designate further services as tier 1 through regulations following a review by Ofcom. In addition to complying with the new video-on-demand code, proposed new section 368HE provides that non-UK-based tier 1 services will also have to comply with the basic content rules that already apply to all UK-based on-demand services.

The Bill sets out standards objectives for Ofcom to secure through the video-on-demand code in proposed new section 368HF. As we have discussed, they are in line with those that are already in place for the broadcasting code, which sets the standards for linear television. The standard’s objectives include protections for under-18s, rules on harmful or offensive material and on due accuracy and impartiality in news. I should make it clear that they are aimed at the protection of UK audiences, and Ofcom will take that into account when drawing up the content of the new video-on-demand code. It is the Government’s expectation that on-demand services will be subject to similar standards as linear services under the broadcasting code.

Proposed new section 368HH sets out matters that Ofcom must take into account when drafting the code. It includes factors such as the likely expectation of audiences, the degree of harm or offence, the age of content, and how long a programme has been on a tier 1 service. That is the list that amendment 28 seeks to amend. The new section will ensure that Ofcom will be able to tailor the new rules specifically for the on-demand environment, ensuring that regulation is proportionate and practical for providers as well as ensuring appropriate protections for audiences. The matters to be taken into account set out in new section 368HH are purposefully not restrictive, and we have already included the important elements to ensure that Ofcom will have regard to how the principles of its regulation apply in an on-demand context when designing the code.

We acknowledge that there are some key differences between the linear and on-demand environments and that some specific elements of the broadcasting code are less practical to apply to video-on-demand services. The most obvious of those is the watershed, which limits adult material being broadcast before 9 pm. That rule would not be effective for regulating streaming services due to the content being actively chosen on demand by audiences at any time, rather than at a particular time. Other examples of differences include Ofcom’s definition of “context” as set out in the broadcasting code, which includes factors such as the time of broadcast and what other programmes are scheduled before and after the programme in question. Clearly, the definition of “context” needs to be updated for an on-demand environment.

Since the Bill was published in draft, we have made specific adjustments to tailor the legislation for video-on-demand services to ensure—as I believe the hon. Member for Barnsley East intends in her amendment—that it is proportionate and practical. In particular, following engagement with Ofcom and video-on-demand providers, we have included specific requirements for Ofcom to take into account the age of content, alongside the length of time the programmes have been available on a tier 1 service. That is especially important in an on-demand context, where content can remain for an extended period of time.

We have also required that Ofcom must take into account the effect of consideration required to view a tier 1 service. That means that Ofcom must consider how easy it is for a viewer to access content—for example, whether they have to take an additional step to pay for a particular film or a subscription. That reflects a key difference in how audiences access content in an on-demand environment, compared with broadcasting, where a viewer can just flick between free-to-air channels without barriers to access.

As described in proposed new section 368HI, Ofcom will consult extensively with service providers before drafting and implementing the new video-on-demand code to ensure the new rules are fit for purpose. I hope that reassures the hon. Member for Barnsley East that Ofcom is already well placed to understand the overall on-demand environment. The Government have already added specific matters to ensure the video-on-demand code will be tailored to take into account the particular circumstances of audiences accessing content.

Proposed new sections 368HJ and 368HK provide that all non-PSB tier 1 services will need to ensure the programmes they offer are in compliance with the requirements of the code 12 months after designation or 12 months from when the new code is in place, whichever is later. After that point, viewers who feel that the code is not being observed can complain to Ofcom, which will be required to consider those complaints in the same way as it does now with respect to the broadcasting code.

The Bill will also bring in new accessibility requirement for tier 1 on-demand services. To date, the provision of subtitles, signing and audio description on on-demand services has lagged behind broadcast television, which is subject to legal accessibility requirements. The Government are therefore putting in place requirements to ensure on-demand services are accessible so that the estimated 12 million people with hearing impairments and the 350,000 who are blind or partially sighted can enjoy their favourite TV shows. The Bill will mirror existing access service targets for broadcasters and will require that tier 1 video-on-demand services have at least 80% of their UK catalogue subtitled, 10% audio described and 5% signed.

Schedule 7 makes consequential provision, including bringing tier 1 services under fairness and privacy rules set out in the Broadcasting Act 1996. Taken together, these new provisions help level the playing field between TV-like on-demand services and traditional UK broadcasters. They provide a fairer regulatory framework and better protections for our young audiences, and ensure that these services can be enjoyed by the widest possible audience.

Photo of Stephanie Peacock Stephanie Peacock Shadow Minister (Digital, Culture, Media and Sport) 2:45, 7 December 2023

As I hopefully emphasised in an earlier discussion, I am on the whole supportive of clause 37 and schedule 5, which will bring video-on-demand services into Ofcom’s scope. It is absolutely right that on-demand services are regulated against a new standards code, given their popularity with the public. That will provide certainty for providers and viewers alike. Of course, it will be up to Ofcom to develop the detail of the new standards code, but I welcome the requirement to consult the services that are regulated by the new code and audience representatives before it is finalised.

The objectives that the code should meet are set in the Bill, as is some further detail on due impartiality. There is also a list of matters that Ofcom should have regard to in preparing the code. As such, the Bill sets out the framework within which the code will be drawn up.

However, there are aspects of the framework that have caused some concern among providers of video-on-demand services. I will address those concerns in relation to amendment 28—I appreciate the Minister’s comments about it—before I move on to the accessibility code and schedules 6 and 7. Providers’ most common concern is that it does not seem that the framework takes into consideration the differences between the broadcast and on-demand environments.

As Netflix pointed out to the Culture, Media and Sport Committee, regulation of linear television was driven by a concern that viewers may come across unsuitable content by accident. The risk is inherent and specific to linear TV, as a viewer cannot dictate what is shown to them on any one channel at any one time.

As such, the broadcast code ensures that broadcasters make choices on behalf of the viewer that protect them from being subject to unsuitable content. For example, as Disney+ points out, the 9 pm watershed helps to shield children from inappropriate language and themes for their age. In an on-demand setting, however, every decision to view a title is active and deliberate. Video on-demand catalogues can hold thousands of titles, of both new and catalogued content, with the audience in complete control of what they decide. In that context, platforms make fewer choices on behalf of the viewer and instead aim to provide the information and tools they need to make informed choices themselves. The Bill does not explicitly address the differences, but I am grateful for the Minister’s points and I welcome them.

I want to move on to discuss the accessibility code, which will apply alongside the broader standards code already discussed. I am pleased to welcome that second code, which will ensure that on-demand services adopt a minimum standard of accessibility on the content they make available for UK audiences, with target figures rising over time. For example, providers must ensure after two years that at least 40% of their total catalogue has subtitling, at least 5% has audio description and at least 2.5% has sign language, rising after four years to 80%, 10% and 5%, respectively.

That has been welcomed by Ofcom, which says the measures reflect its 2018 and 2021 recommendations to Government, which should bring tangible benefits to disabled people, including the 87,000 people with British Sign Language as their preferred language and the more than 2 million people living with sight loss. It has also been welcomed by the Royal National Institute for Deaf People and the Royal National Institute of Blind People, which have been campaigning together for on-demand services to deliver access services. They say that 80% of those with hearing loss or who are deaf stop watching a programme when subtitles are not available, showing just how important they are to people’s ability to enjoy video on-demand content.

I wonder whether the section could have been more ambitious. Disney+ said in its contribution to the CMS Committee that it is confident it already meets the obligations set in the Bill and Netflix also said it has English-language subtitles for 100% of its UK catalogue and audio description of all its English-language branded content in the UK. Though on-demand services should be commended for that great work, it shows that a target of 40% of content being subtitled could be stronger. I understand that the 5% target for signed content on large back catalogues is seen by some as slightly more burdensome, but BSL users deserve to watch on-demand services as much as anyone.

Where BSL interpretation is available, it is used, with the BBC reporting that 1.4 million people watched the signed coverage of the coronation. Does the Department, therefore, have any plans to increase the requirements in future? I would hope that the standards are seen as a minimum and just the beginning, rather than an aspirational goal or target for larger services. Indeed, should the code be applied beyond tier 1 services at any point, I would expect that smaller services might be exempt from some of the quotas where necessary.

The RNIB and RNID have further shared with me their concerns about the timescale for implementation. Powers were initially created in the Digital Economy Act 2017 to set minimum levels of access services for on-demand TV. The timeline just shows how rarely such legislative opportunities come about. Are there any mechanisms that could shorten the timescale if desired or needed?

It is also important that online and digital accessibility measures are not used as an excuse to axe services that are more convenient and inherently accessible to disabled people. When campaigning against the changes being made to BBC local radio services, I met the National Federation of the Blind multiple times. They taught me that radios with real, tactile buttons are often much easier for the visually impaired to operate compared with websites, even though websites claim to be more accessible. It is important, therefore, that an increase in accessible content through on-demand services is not used as a reason for saying that other options are no longer necessary.

I would like to touch on the issue of disabled representation in the media more broadly which was highlighted to me by Brooke Millhouse and Simon Sansome, who run podcasts on disabilities as part of their work. I met them briefly a few weeks ago alongside the shadow Minister for disabled people, my hon. Friend Vicky Foxcroft. It is very important that on-demand services can be accessed by disabled people, but that can and should be matched with a conscious effort to better represent the lives of disabled people in that content. That means getting more disabled people into the creative industries, right the way through from writers to actors, in the hope of creating a more diverse array of disabled characters. In doing so, we might be able to finally put a stop to disabled people primarily being represented in the extremes.

Photo of Kirsty Blackman Kirsty Blackman Shadow SNP Spokesperson (Cabinet Office) 3:00, 7 December 2023

The hon. Lady is making a powerful and important point. All of us feel better when we can see lives like ours reflected on the television screen. She is absolutely right that we currently see extremes for disabled people; we do not see them on television programmes living their lives as they do. It is all about, “That person is disabled, and that is why they are on this programme,” rather than, “That person is on this programme; they are living their life and they happen to be disabled,” which is much more reflective of life in general.

Photo of Stephanie Peacock Stephanie Peacock Shadow Minister (Digital, Culture, Media and Sport)

I completely agree. That is the point I am attempting to convey to the Committee: that we want to see everyday life reflected on television, and that obviously includes disabled people. What work is the Minister’s Department doing to open up opportunities for disabled people in the creative industries and to encourage better representation in the media?

As I have said before, if we to implement a new regime whose effects we really believe in, but that regime relies on Ofcom being a strong regulatory presence, Ofcom must be empowered to act with strength where that is needed; otherwise, the desired impact will not be realised. As such, I am happy with the powers set out in schedule 6, but what recent conversations has the Minister had with Ofcom about its capacity to carry out all the new duties bestowed upon it by the Bill? It is important to the integrity of the new regime for on-demand services, and to the Bill more widely, that there is confidence on all sides in Ofcom’s ability to enforce the new regulation.

Schedule 7 amends references to tier 1 services in the Representation of the People Act 1983, the Communications Act 2003, the Wireless Telegraphy Act 2006 and the Online Safety Act 2023. I will speak specifically about the amendments to the Broadcasting Act 1996, as those changes will have a more tangible impact. The changes in this schedule require Ofcom to create a tier 1 fairness and privacy code and to bring tier 1 services in line with Ofcom’s enforcement powers on breaches of the fairness and privacy code. Hopefully, that will protect members of the public from unwarranted infringements of privacy resulting from the activities of video-on-demand services, but some on-demand and streaming services, particularly Netflix, have raised concerns about the impact on their content and on Ofcom’s resources. They warn that, since the fairness and privacy code will enable complaints to be made from outside the UK, Ofcom could become something of a global policeman, and will have use its resources dealing with complaints from people who do not live in the UK but have failed to seek redress elsewhere.

That practice—complaint tourism—is of particular concern to Netflix in relation to its catalogue. It says it is aware of international complainants previously trying to use the UK regulator to get material removed. It appears from the pre-legislative scrutiny process that Ofcom does not share those concerns. Its approach seems to be that if harm is happening, or there is a risk of harm to UK audiences, it wants to know, regardless of whether a complaint is being raised by someone outside the UK. However, it would be reassuring if the Government and Ofcom worked together to monitor the extent to which the code requires Ofcom to manage a high volume of complaints from abroad, to ensure that genuine complaints can be handled appropriately and that complaints with malicious intent are not encouraged.

Overall, I hope it is clear that I am pleased that the on-demand services will finally be regulated. I look forward to hearing more from the Minister in response to my questions about the details.

Photo of John Whittingdale John Whittingdale The Minister of State, Department for Culture, Media and Sport, Minister of State (Department for Science, Innovation and Technology)

As I said in my earlier remarks, we feel that the hon. Lady’s amendment in particular is unnecessary. Regarding the phrase “matters to be taken into account” by Ofcom in drawing up the list, those matters that are specified in the Bill are not exclusive; there is an ability to take other matters into account. The purpose of this measure is to set out the general regard for the principles that Ofcom is required to consider, so I do not think that this amendment would add anything to the existing position. For that reason, we do not support it.

I agree with the hon. Lady very much about the importance of accessibility. As she rightly said, that is something that the organisations representing disabled people have been campaigning on for a long time. Regarding the targets in the Bill, it is the hope and expectation that broadcasters will exceed the minimum targets wherever possible, but it is possible for the Secretary of State to increase the minimum targets at some future date.

Interestingly, the hon. Lady said that she does not want to add to the burden on smaller services. To some extent, that is exactly why the tier 1 provisions were put in place: so that the requirements are different for much smaller services, which would otherwise find them quite burdensome. As for her comments about Ofcom’s resource, it is certainly not the intention that Ofcom should become a sort of global policeman acting on behalf of anybody around the world who wants to make a complaint, particularly about content that is designed for global audiences. Some of the big streaming platforms commission programmes that are intended to be viewed right around the world, but Ofcom’s role is to protect UK consumers, and obviously it will need to take that into account in how it administers the code.

I am grateful to the hon. Lady for her support for the overall intention behind these measures. I am sorry that I cannot accept her amendment, but I think the Bill will deliver what she wants to see.

Question put and agreed to.

Clause 37 accordingly ordered to stand part of the Bill.

Schedules 5 to 7 agreed to.