The Audiovisual Media Services Regulations 2020

Made: at 1.05 p.m. on 30th September 2020

Laid before Parliament: at 3.30 p.m. on 30th September 2020

Coming into force in accordance with regulation 1(2) and (3)

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972[^f00001] in relation to information society services[^f00002] and measures relating to television broadcasting[^f00003], in exercise of the powers conferred by that section, makes the following Regulations.

PART 1 — Introductory

Citation and commencement

1

• (1) These Regulations may be cited as the Audiovisual Media Services Regulations 2020.

• (2) Subject to paragraph (3), these Regulations come into force on 1st November 2020.

• (3) The following regulations come into force on 6th April 2021—

• (a) regulation 26;

• (b) regulation 47, insofar as it relates to the insertion of section 368V into the Communications Act 2003[^f00004].

PART 2 — Television services

CHAPTER 1 — Amendments to the Broadcasting Acts 1990 and 1996

2

In the Broadcasting Act 1990[^f00005]—

• (a) for section 42A (restricted services)[^f00006] substitute—

(42A) In this Part “restricted service” means a service (or a dissociable section of a service) which consists in the broadcasting of television programmes for a particular establishment or other defined location, or a particular event, in the United Kingdom.

• (b) in section 202(1) (general interpretation)[^f00007], for the definition of “the Audiovisual Media Services Directive” substitute—

• “the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services[^f00008];

3

In the Broadcasting Act 1996—

• (a) in section 1(4) (digital programme services)[^f00009]—

• (i) after “means a service” insert “(or a dissociable section of a service)”;

• (ii) in paragraph (za), after “a service” insert “(or a dissociable section of a service)”;

• (b) in section 24(1) (digital additional service)[^f00010], after “means any service” insert “(or dissociable section of a service)”;

• (c) in section 39(1) (interpretation of Part 1)[^f00011], for the definition of “the Audiovisual Media Services Directive” substitute—

• “the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services;

• (d) in section 105(1) (interpretation of Part 4 and supplementary provisions)[^f00012], for the definition of “the Audiovisual Media Services Directive” substitute—

• “the Audiovisual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services;

CHAPTER 2 — Amendments to the Communications Act 2003

4

Part 3 of the Communications Act 2003 is amended in accordance with this Chapter.

5

In section 232 (meaning of “television licensable content service”)[^f00013]—

• (a) in subsection (1)—

• (i) after “any service” insert “, or dissociable section of a service,”;

• (ii) in each of paragraphs (a), (aa) and (b), after “the service” insert “or dissociable section of the service”;

• (b) in subsection (2), in the words before paragraph (a), after “A service” insert “, or dissociable section of a service,”;

• (c) in subsection (3)(a), for “a service consisting of television programmes” substitute “a service, or dissociable section of a service, consisting of television programmes”.

6

In section 233 (services that are not television licensable content services)[^f00014], in each of subsections (1), (2), (4), (5) and (7), after “A service” insert “, or dissociable section of a service,”.

7

In the italic heading before section 303, for “the deaf and visually impaired” substitute “people with disabilities”.

8

In section 303 (code relating to provision for the deaf and visually impaired)—

• (a) in the heading, for “the deaf and visually impaired” substitute “people with disabilities”;

• (b) in subsection (1)(a), after “enjoyment by” insert “people with disabilities, in particular”;

• (c) after subsection (1) insert—

(1A) The code must include provision— (a) encouraging providers of services to which this section applies to develop accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities; (b) requiring such action plans to be notified to OFCOM; (c) requiring providers of services to report annually to OFCOM about the accessibility of such services to people with disabilities.

9

In section 304 (procedure for issuing and revising code under section 303)—

• (a) in subsection (1)(a), for “persons falling within subsection (1)(a)(i), (ii) or (iii) of that section” substitute “people with disabilities”;

• (b) in subsection (2), after “revision accessible to” insert “people with disabilities, in particular”.

10

After section 307 insert—

(307A) OFCOM must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility issues which relate to matters dealt with by sections 303 to 307 and the code drawn up by OFCOM under section 303.

11

In section 310 (code of practice for electronic programme guides)[^f00015], in subsection (3)—

• (a) after “persons with disabilities” insert “, in particular those”;

• (b) in paragraph (a), omit “such” before “disabilities”.

12

In section 319 (OFCOM’s standards code)[^f00016]—

• (a) in subsection (9), for “subsection (10)” substitute “subsections (10) to (12)”;

• (b) after subsection (10) insert—

(11) So far as relating to product placement falling within paragraph 4(bb) of Schedule 11A[^f00017] (undertakings whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers), subsection (2)(fa) applies only in relation to programmes the production of which begins after 31 October 2020. (12) Subsection (2)(fa) applies in relation to a programme the production of which began before 1 November 2020 as if, in Schedule 11A (which contains the product placement requirements referred to in section 321(3A))— (a) paragraph 3(1)(b) to (d) were omitted, (b) in paragraph 6(1) there were inserted, as paragraph (a): “the programme is a religious, consumer affairs or current affairs programme;”, and (c) paragraph 7 included a condition that the programme in which the product, service or trademark, or the reference to it, is included is— (i) a film made for cinema, (ii) a film or series made for a television programme service or for an on-demand programme service, (iii) a sports programme, or (iv) a light entertainment programme.

13

In the italic heading before section 335A, after “States” insert “and the European Commission”.

14

In section 335A (co-operation with other Member States)[^f00018]—

• (a) in the heading, after “States” insert “and the European Commission”;

• (b) before subsection (1) insert—

(A1) OFCOM must take all necessary steps to provide such information and assistance to member States and to the European Commission as is required in order to comply with the Audiovisual Media Services Directive as it applies in relation to relevant broadcasters, in particular Articles 2, 3, 4 and 30a of the Directive.

15

After section 335A insert—

(335B) (1) OFCOM must establish and maintain an up to date list of persons providing— (a) a television programme service, or (b) a digital additional television service, who are under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive. (2) The list must indicate in respect of each person which of the criteria set out in paragraphs 2 to 5 of Article 2 of the Audiovisual Media Services Directive is the basis for the decision that they are under the jurisdiction of the United Kingdom. (3) OFCOM must notify the European Commission of the contents of the list and of any updates to it. (4) The regulatory regime for each service mentioned in subsection (1) must include the condition that the persons providing the service must notify OFCOM of any changes that may affect the determination of jurisdiction in accordance with paragraphs 2, 3 and 4 of Article 2 of the Audiovisual Media Services Directive.

16

For section 336(3) (government requirements for licensed services: announcements) substitute—

(3) The direction— (a) may specify the times at which the announcement is to be broadcast or otherwise transmitted; and (b) where the announcement relates to an emergency, including a natural disaster, must require the information given in the announcement to be provided in a manner which is accessible to people with disabilities.

17

In section 362(1) (interpretation of Part 3)[^f00019]—

• (a) in the definition of “assistance for disabled people”, for “means” substitute “includes, in particular,”;

• (b) in the definition of “television broadcasting service”, after “subsection (4)) a service” insert “(or a dissociable section of a service)”.

18

In Schedule 11A (restrictions on product placement)[^f00020]—

• (a) for paragraph 3(1) substitute—

(1) Product placement falls within this paragraph if it is in a— (a) children’s programme; (b) news or current affairs programme; (c) consumer affairs programme; or (d) religious programme.

• (b) at the end of paragraph 4(ba) omit “or”;

• (c) after paragraph 4(ba) insert—

(bb) by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers; or

• (d) omit paragraph 6(1)(a);

• (e) omit paragraph 7(2);

• (f) in paragraph 7(7)—

• (i) in paragraph (e), after “physical” insert “, mental”;

• (ii) after paragraph (e) insert—

(ea) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;

19

In Schedule 12 (corresponding obligations of the BBC and Welsh Authority), in the heading of paragraph 22, for “the deaf and visually impaired” substitute “people with disabilities”.

PART 3 — On-demand programme services

20

The Communications Act 2003 is amended in accordance with this Part.

21

In section 341 (imposition of penalties on the Welsh Authority)[^f00021], for subsection (1)(jb) substitute—

(jb) the requirements imposed by section 368CB, section 368D and section 368E(4) (on-demand programme services), except— (i) the requirements imposed by section 368D(1) and section 368E(4) so far as they relate to advertising, and (ii) the requirement imposed by section 368D(3)(za);

22

Before section 368A insert—

(368ZA) This Part applies in relation to the provision of programmes with or without sounds which consist of moving or still images, or of legible text, or of a combination of those things.

23

In section 368A (meaning of “on-demand programme service”)[^f00022]—

• (a) in subsection (1)—

• (i) after “a service” insert “(or a dissociable section of a service)”;

• (ii) in paragraph (a), for the words “the form and content of which” to the end, substitute “(as described in section 368ZA)”;

• (b) in subsection (2)—

• (i) after “Access to a service” insert “(or dissociable section of a service)”;

• (ii) in paragraph (a), after “the service”, in both places, insert “(or dissociable section of the service)”;

• (c) in subsection (3), after “the service” insert “(or dissociable section of the service)”;

• (d) in subsection (4)—

• (i) after “a service” insert “(or dissociable section of a service)”;

• (ii) after “the service” insert “(or dissociable section of the service)”.

24

In section 368B (the appropriate regulatory authority)[^f00023]—

• (a) before subsection (1), insert—

(A1) OFCOM is the appropriate regulatory authority for all purposes of this Part in relation to the BBC (and, in relation to the BBC, OFCOM may not designate any other body to be the appropriate regulatory authority for any of those purposes).

• (b) in subsection (1), for “subsection (9)” substitute “subsections (A1) and (9)”.

25

After section 368B insert—

(368BZA) (1) OFCOM must establish and maintain an up to date list of persons providing an on-demand programme service. (2) The list must indicate in respect of each person which of the criteria set out in paragraphs 2 to 5 of Article 2 of the Audiovisual Media Services Directive is the basis for the decision that they are under the jurisdiction of the United Kingdom (see section 368A(1)(e)). (3) OFCOM must notify the European Commission of the contents of the list and of any updates to it.

26

In section 368BA (advance notification to appropriate regulatory authority)[^f00024], after subsection (3) insert—

(4) In this section, “significant differences” includes any change that may affect the determination of jurisdiction in accordance with paragraphs 2, 3 and 4 of Article 2 of the Audiovisual Media Services Directive.

27

In section 368BC (accessibility for people with disabilities)[^f00025]—

• (a) in subsection (1)—

• (i) for “their services” substitute “such services”;

• (ii) for “affecting their sight or hearing or both” substitute “, including, in particular, people with disabilities affecting their sight or hearing, or both”;

• (b) in subsection (2), after paragraph (c) insert—

(d) requirements for providers of on-demand programme services to report annually to the appropriate regulatory authority about the accessibility of such services.

• (c) in subsection (4)(b) omit “affecting their sight or hearing or both”.

28

In section 368C (duties of the appropriate regulatory authority)[^f00026]—

• (a) in subsection (1), for “section 368D” substitute “sections 368CB and 368D”;

• (b) for subsection (2)[^f00027] substitute—

(2) The appropriate regulatory authority must encourage providers of on-demand programme services to develop accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities. (2A) The appropriate regulatory authority must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility of on-demand programme services to people with disabilities.

• (c) omit subsection (3);

• (d) after subsection (4) insert—

(5) The appropriate regulatory authority must draw up, and from time to time review and revise, guidance for providers of on-demand programme services concerning measures that may be appropriate for the purposes of section 368E(4) (ensuring specially restricted material is not available to under-18s).

29

In section 368CA (code on accessibility for people with disabilities)[^f00028]—

• (a) in subsection (1)(b)—

• (i) for “their services” substitute “on-demand programme services”;

• (ii) omit “affecting their sight or hearing or both”;

• (b) in subsection (2), after “revision accessible to” insert “people with disabilities, in particular”.

30

Before section 368D insert—