Net flicks – Media Act expands editorial standards to cover “TV-like” VOD services

Which VOD services will be caught by the legislation?

The Act states that only “Tier 1” services will be caught by the legislation. “Tier 1” is defined in the Act as either: (a) an on-demand programme service (ODPS) used by a public service broadcaster (other than the BBC), or (b) an ODPS, or non-UK ODPS, that is either specified by the Secretary of State or falls under a description set out in secondary legislation.^[1]

The Explanatory Notes to the Act state that the VOD Standards Code will be targeted at “the largest, most TV-like” services.^[2] In its “roadmap to regulation”, Ofcom has also set out that it expects the Government to make a formal request for a report from Ofcom on the state of the VOD market in the UK, which will include individual catalogues, audience figures and the size of turnover. The Secretary of State is required to take this report into consideration when determining which services are considered to be Tier 1.^[3]

Ofcom has also referred to some major providers by name, including: Netflix, Amazon Prime and Disney+.^[4] It has stated that Tier 1 will include mainstream, “TV-like” services “which do not currently fall under UK jurisdiction”.^[5] This gives an indication of the scale and type of the services likely to be deemed Tier 1 and so caught by the legislation. 

The Act sets out that DCMS is required to publish the proposed Tier 1 list or specified descriptions of Tier 1 services on a publicly accessible government website before making any regulations specifying Tier 1 services.

What will the Code set out?

The exact terms of the VOD Standards Code itself are yet to be drafted by Ofcom. The Act sets out that the standards ought to be best calculated to ensure that:

• persons under the age of 18 are protected;
• material likely to encourage or incite the commission of crime or lead to disorder is not included in Tier 1 services;
• news included in those services is presented with due impartiality;
• news included in those services is reported with due accuracy;
• the content excludes the views or opinions of the person providing the services on matters of political or industrial controversy or matters relating to current public policy;
• generally accepted standards are applied to the content of the services to provide adequate protection for members of the public from the inclusion of offensive or harmful material; and
• the proper degree of responsibility is exercised with respect to the content of religious programmes.^[6]

It is anticipated that the Code will be based on the existing Ofcom Broadcasting Code, which covers similar issues. Ofcom must continually keep the Code under review and may from time to time revise it.

Ofcom has stated that it will begin work on the draft Code and accompanying guidance this year, anticipating that those will come into effect in 2025 following consultation.^[7] 

It will be a major adjustment for some VOD services, given that they are currently subject to significantly less stringent obligations. Indeed, in the wake of the furore surrounding the Netflix series Baby Reindeer, the DCMS stated that the Act would make mainstream video-on-demand services subject to “high standards”.^[8]  It is notable, however, that Tier 1 services will be afforded a 12-month grace period following the issue of the Code to ensure that they are compliant. Based on Ofcom’s roadmap, this means that they will probably not need to be compliant until 2026. 

The Code is less likely to be a cause for concern for public service broadcasters (e.g. ITV, Channel 4 and Channel 5) whose existing content will for the most part already be in accordance with the Broadcasting Code.  Netflix is among the services that have raised concerns about how the Code will affect their existing libraries. Their Senior Director of Public Policy for the UK and Ireland expressed concern in April 2023 that the Code could “prove unworkable or risk a chilling effect” and raised particular concerns in relation to Netflix’s current documentary library.^[9]

The Act sets out certain matters that are to be taken into account when Ofcom prepares the Code, which include:

• audience expectation as to the nature of content of programmes included in a particular Tier 1 services;
• the age of the content included on the services;
• the length of time for which programmes are included in Tier 1 services; and
• the desirability of maintaining the independence of editorial control over programme content.^[10]

On that basis, Ofcom might take a view as to how attentively it expects VOD services to mine through their library to ensure that all historic content complies with the Code.

Accessibility requirements

In addition to the Standards Code, Ofcom is also required to create an Accessibility Code for Tier 1 services to ensure that services are available to those with disabilities, particularly those whose sight or hearing is affected. In its roadmap, Ofcom has set out that it expects to consult on this around the beginning of 2025.

The Act sets out targets to be included in the Accessibility Code.^[11] The first set requires that:

• 40% of the total catalogue hours consists of subtitled programming;
• 5% of the total catalogue hours consists of programming with audio-descriptions; and
• 2.5% of the total catalogue hours consists of programmes either presented in or translated into sign language.

Those initial targets must be met during a two-year period starting either (a) two years after the VOD service is designated Tier 1 or (b) two years after the day when the Code is published (whichever later).

The second set of targets requires that:

• 80% of the total catalogue hours consists of subtitled programming;
• 10% of the total catalogue hours consists of programming with audio-descriptions; and
• 5% of the total catalogue hours consists of programmes either presented in or translated into sign language.

Those higher targets must be met during a two-year period starting either (a) four years after the VOD services is designated Tier 1 or (b) four years after the day the Code is published (whichever later).

Ofcom is also able to make exceptions for VOD services in certain circumstances.

Audience protection measures

Ofcom is also required to carry out a review of audience protection measures utilised by any UK VOD service or non-UK VOD services that is designated Tier 1. This is in order to assess whether their measures adequately protect audiences from harm. Such measures include: age rating or other classification systems, content warnings, parental controls and/or age assurance measures.^[12]

Ofcom may request information from the service for that review and may also publish any information provided to them. The roadmap states that Ofcom was intending to begin a general review of audience protection measures shortly after Royal Assent.

Comment

The Act is intended to align the regulation of mainstream VOD content more closely with traditional TV services, which represents a step-change for the regulation of larger VOD services. As such, the new VOD Standards Code seems likely to be aligned with Ofcom’s existing Broadcasting Code. Given the increasing levels of convergence in “TV-like” programming across traditional and VOD services, it seems likely that general audiences will welcome a degree of harmonisation of standards, such as standards for harmful or offensive material, accuracy in news content, and respecting privacy. Another notable shift is the potential for extra-territorial effect to capture VOD services that are not established in the UK.

The substantial changes could, however, present some quite stringent logistical challenges for the VOD services that fall within scope of the new rules. In particular, it could in effect require a large-scale audit of whether existing content complies with the rules (other than programming that was already made in accordance with the requirements of the Broadcasting Code, e.g. content of that kind that has been licensed in for streaming on such services). It seems likely that the grace period of around two years is partly intended to allow the relevant VOD services to cope with the logistical burden, and no doubt the services affected will also want to be consulted closely on the development of the new VOD Standards and Accessibility Codes.

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‍Article written for Entertainment Law Review.