19 July, 2019
UK Regulator is calling for new legislation to ensure that PSM content will remain easy to find online
As part of a broader review on the sustainability of Public Service Broadcasters (PSBs) released on 4 July 2019, UK communication regulator Ofcom has carried out an examination of the current audiovisual context to determine whether a new legal framework was necessary and if so, how to ensure the discoverability of public service content in the online world.
Under the current UK legislation, prominence of PSB is only provided for linear channels within EPGs (Electronic programme guides). However, EPG is not the only route to discover content any longer as viewing habits continue to shift - with the growing consumption of on-demand content, video services on social networks and the take-up of connected TV. Content can be disseminated individually and found through sophisticated recommendations and search results, or through user interfaces on connected TV or TV platforms. Prominence of content will increasingly rely on bargaining powers with global players, which may prove a challenging task for some PSBs.
Ofcom was required by the Digital Economy Act 2017 to review the prominence of the PSBs traditional channels and on-demand services. The review started in 2018 with a consultation. Ofcom considered about 40 responses from stakeholders received to the consultation as well as the findings of a consultants report on trends and commercial drivers of different TV platforms before outlining their conclusions and receommendations to government.
While public broadcasters argued that PSM content was likely to become less easy to find in an online environment in the future, commercial broadcasters advocated that there was no evidence of such risk and that conversely, a strong incentive to ensure PSB’s discoverability would remain, as long as the broadcasters continue to make attractive and popular content. Moreover, imposing prominence of PSB content in recommendations and search results would inhibit consumer’s choice and stifle innovation.
Ofcom's recommendations for the Government include the following key points:
It is necessary to secure prominence of PSBs in online world with a new framework: PSBs have the mission to provide “high-quality and original programmes, reflecting the citizens of the UK, bringing the nation together at important moments and informing, entertaining and educating society” and the regulator must support the fulfilment of such PSB purposes. Therefore, PSBs, whether traditional or on-demand services, shall remain easy to find on all devices and, according to Ofcom, owing to the shift in the audiovisual landscape, there is no guarantee of prominence and discoverability of PSB content in the future.
Only the most significant TV platforms should be concerned: Ofcom recommends that the new framework apply only to all services that “a significant number of UK viewers use as one of their main ways of watching TV content”, wherever they are based (subject to compliance with any European regulation). On these platforms, PSBs should be easy to find, directly on the homepage. This means that the initial focus should be on connected TVs.
Prominence should only be guaranteed to PSBs’ on-demand services where they meet some qualifying criteria:. Ofcom suggests that only PSBs' on-demand services meeting some qualifying criteria related to the quality or the originality of their content should benefit from prominence obligations. Moreover, the rules would be limited to platforms that make PSB content available for free. SVOD would be, for the moment, out of scope. Prominence shall be encouraged, both for the PSBs' on-demand players (on platforms’ homepage through a single PSB portal for instance) and the PSBs' content through the recommendations and search tools.
The new framework should consist in flexible, principles-based general rules, easily adaptable to new needs or evolution, and supplemented with practical guidance from Ofcom. The regulator proposes a notification system, whereby every TV platform provider in the scope of the new framework would be required to notify Ofcom. Penalties could apply in case of breach of the regulatory obligations.
In general, Ofcom emphasises that the new legislation should aim “to secure discoverability of PSB in a proportionate way as well as supporting continued consumer choice and innovation”. In any case, the decision remains in the hand of the Government, with whom Ofcom plans to engage in a dialogue regarding these recommendations, as well as with the industry. The regulator may also discuss with them the question of the transferability or the ‘must-carry’/’must-offer’ obligation in the online world, keeping in mind that any rule must have a proportionate impact on the market and support the effective delivery of the policy objective of PSB.
Additional background: The review of prominence in the online world is part of a broad, fundamental appraisal of the PSB system undertaken by Ofcom, which also includes a decision to update the rules on the prominence of PSB channels in EPGs and endorsing a range of commitments by ITV, Channel 4 and Channel 5 to invest more in original UK content for children. Ofcom will launch a nationwide forum to discuss the future of public service media – called "Small Screen: Big Debate" in the autumn.