Broadcasting and VoD in a post-Brexit 'no-deal' landscape

The Department for Digital, Culture, Media & Sport recently published government guidance for media services providers in relation to broadcasting and video-on-demand (“VoD”), in the event that there is ‘no-deal’ in Brexit negotiations. Here, we review and analyse the main points from the guidance.

Published on 13 September 2018 the guidance forms part of a series of technical notices which aim to provide information to enable further understanding of what a ‘no deal’ scenario in March 2019 would look like and how businesses might prepare.

Audiovisual Media Services Directive (AVMSD)

The rules for determining the country within the EU which has jurisdiction over a provider of audiovisual media services are set out in the AVMSD. Broadly there are two tests, one is having an “establishment” in the country and the other is a “technical criteria” relating to the use of satellite uplinks in a country or satellite capacity relating to that country. It will be particularly important to consider these tests and how or whether a broadcaster might fall within the jurisdiction of a particular EU state when looking at the broadcast and VoD licensing environment following Brexit.

Currently the AVMSD has a helpful “country of origin” principle under which broadcasters and VoD service providers are only subject to the jurisdiction of one EU country and hold a licence from that one country which is valid across the EU.

If a ‘no-deal’ Brexit goes ahead, broadcasters and VoD service providers who currently hold an Ofcom licence may no longer benefit from this principle. The White Paper on the future relationship with the EU noted that the UK will not be part of AVMSD after the UK’s exit from the EU and therefore the ‘country of origin’ principle will not apply to the UK.

However, the government has confirmed that within the UK, domestic legislation will make provision for Ofcom licences to continue to be valid following Brexit.

European Convention on Transfrontier Television

The UK will remain a party to this Convention after Brexit, which may offer some comfort in that the 20 countries who have signed the Convention will be required to permit freedom of reception to services under UK jurisdiction. Likewise, the UK will be required to permit freedom of reception for services originating from the countries that are party to the Convention.

However, media services providers will also need to take into consideration local laws which may give effect to this right in different ways and bear in mind that the Convention does not have the same enforcement mechanisms compared with the AVMSD. One key point to note is that the Convention does not provide for VoD, the regulation and authorisation of which is determined locally.

While this may be helpful in establishing a right to freedom of reception of services under UK jurisdiction in certain countries, it should not be forgotten that there are still seven EU countries which are not a party to the Convention and we await further details on this.

Commentary

The practical advice from the government is to “assess on a case-by-case basis whether your current licence would continue to be accepted in the EU countries where the service is made available, and seek independent local advice if necessary”. Noted above, an Ofcom licence will continue to be valid following Brexit and as such it may not be necessary to take any additional steps in relation to UK-only services.

It is worth media service providers considering whether they already have relevant EU licences which could reduce the impact of a ‘no-deal’ Brexit on the delivery of their services outside of the UK. Where necessary, it may be advisable to take steps to obtain valid licences or authorisations, before the UK’s exit from the EU, in relation to UK-licensed services which are receivable in the EU.

This might involve (i) taking steps related to the Convention (if any are required under local law); or (ii) obtaining valid licences or authorisations where dealing with a country which is not a signatory to the Convention, and the AVMSD Rules for determining the country which has jurisdiction over a service provider will continue to apply in this regard.

This is unlikely to come as a surprise to broadcasters and VoD service providers, but is likely to involve the burden of additional administration and may result in a need for additional licences with specific licensing requirements that differ from those in the UK.

As Charles Russell Speechlys’ Partner, Nick White recently put it: “while this is not really “new news” for broadcasters, it’s certainly a significant headache.”

For more information please contact Tanya Wilkie on +44 (0)20 7203 5058 or at Tanya.Wilkie@crsblaw.com