In fact, even in the event of a deal the UK government notice repeats previous suggestions that audio-visual media services won’t be covered by any new arrangement between the UK and the EU. This could well result in the AV media sector finding itself in the same regulatory position irrespective of whether a deal is done.
What then for these operators?
The current position for broadcasters in the UK
Whilst the UK remains in the EU, the Audiovisual Media Services Directive (AVMSD) (currently undergoing revision) only requires a broadcaster or on-demand service provider to be licensed in any one Member State for operation across the whole of the EU (and, generally, subject only to that particular regulator’s rules). This so-called ‘country of origin’ principle means that providers operating out of the UK only need a licence from the UK communications regulator, Ofcom, and to comply with Ofcom’s rules, to broadcast across Europe. Today, the UK is the biggest European broadcasting hub, with approximately 150 commercial broadcasters transmitting 758 channels across the EU in 2017, including well-known names such as Disney and Discovery. A ‘no deal’ Brexit will have significant implications for the UK broadcasting industry, not least because several broadcasters will need to obtain new licences from regulators other than Ofcom, and this is likely to involve them relocating some or all of their operations to one of the remaining EU member states. Several broadcasters have been contemplating moves out of the UK for some time, and some are now implementing those plans.
Options after a ‘no deal’ Brexit
In the event of a ‘no deal’ Brexit, each broadcaster will need to assess what licence – or licences – it will need. The fact that the country of origin principle will no longer apply as between the UK and the EU is easy enough to understand. However, the consequences for different broadcasters will vary.
Much will depend on where a broadcaster has its operations and how it is structured. For organisations which have their operations in only one country – say, the UK or an EU member state – the position is likely to be simpler than for those that have operations across two or more countries. The position will be particularly nuanced for organisations that are currently established in the UK but broadcast solely to one or more other countries in the EU, or vice versa. Broadcasters who haven’t already done so (and most have) should look closely at the rules contained in Article 4 of the AVMSD and, if relevant, in Ofcom’s helpful guidance to assess where they ought to be regulated. Applying these rules isn’t always easy in practice, especially if the organisation’s head office or editorial function isn’t straightforwardly organised.
Just to complicate things further, Ofcom licences could still be valid in the 20 EU countries (including the UK) that are signatories to the Council of Europe Convention on Transfrontier Television (the Convention). The recent technical notice from the UK government makes much of this. The Convention, an early precursor to the AVMSD, requires signatories to permit freedom of reception to services under the jurisdiction of countries that are party to it. This means that the UK must permit the reception of services originating from Convention signatories and that Convention signatories must permit the reception of services originating from the UK. Convention signatories have freedom to choose how to give effect to this obligation; they may recognise each other’s licences in order to do so, but this will depend on local law.
The UK government guidance notes that the Convention does have its limitations. This is a huge understatement. The Convention hasn’t been updated for many years and has largely been left to languish while the AVMSD has taken over as the primary law. It’s doubtful anyone had considered ever having to rely on the Convention again, so it doesn’t even mention video-on-demand services (it’s too old for that), its enforcement mechanisms are more limited than the AVMSD and other more detailed regulations mirror long-replaced versions of the AVMSD. It also doesn’t provide a mechanism for UK audiovisual media services to be received in the seven EU countries that are not signatories to the Convention.
UK Government recommendations
If the UK is left with ‘no deal’, it will be the responsibility of UK-based broadcasters and video-on-demand operators to obtain a valid licence or approval in each country in which their service is provided. They may require multiple licences: an Ofcom licence to cover linear services in the UK and those received in Convention countries (provided those countries recognise the Ofcom licence in order to fulfil their freedom of reception obligations under the Convention), additional licences for EU countries that are not party to the Convention and further licences or notifications for video-on-demand services. For broadcasters who have not yet worked their way through an analysis of their regulatory position in the event of a no-deal Brexit, now would be a good time to do so.
And as noted above, even if a deal is done, media service providers might find themselves in much the same position as a no-deal outcome.