The purpose of this note is to set out some key regulatory and copyright-related considerations for broadcasters and providers of audiovisual on demand services, arising from Brexit. Many such organisations have already been making – and in some cases have already implemented – plans to adapt corporate and operational arrangements to ensure that adverse effects of Brexit are mitigated so far as it is possible to do so.
The United Kingdom officially left the European Union ('EU') on 31 January 2020 ('Exit Day'). Exit Day marked also the start of a transition period during which the status quo of the relationship between the EU and the UK, and the applicability of EU law, is being maintained under the terms of a Withdrawal Agreement while the EU and UK seek to negotiate a trade agreement to govern their relationship moving forward.
The transition period is currently scheduled to end at 11pm on 31 December 2020 ('Transition End Date'), meaning EU law will cease to apply in the UK from that time. The relationship thereafter between the UK and EU will either be set out in a trade agreement or the trading relationship will be governed by World Trade Organisation terms. The Withdrawal Agreement provides that the UK and EU may agree to extend the transition period for one or two years, but any such extension must be agreed before 1 July 2020, now less than a month away. There has been much speculation on whether an extension will be agreed.
Regulatory impact of Brexit on linear TV and video on demand services
Ofcom has helpfully prepared a set of frequently asked questions ('FAQs') to provide information to linear TV broadcasters and VOD service providers on the impact of Brexit on their licensing obligations following the Transition End Date.
The FAQs emphasise that until the end of the transition period, the regulatory framework as set out under the Audiovisual Media Services Directive (Directive (EU) 2018/1808) ('AVMS Directive') will continue to apply, including the country-of-origin principle whereby such service providers are subject to regulation only in the Member State in which they are established or, if not established in a Member State, use a satellite uplink in or satellite capacity pertaining to a Member State.
Following the Transition End Date, the AVMS Directive and the accompanying regulatory framework will cease to apply to the UK. It is not possible to preserve their effect by means of a trade agreement. It follows that linear TV and VOD service providers established in the UK who wish to provide their services to audiences in Member States will no longer benefit from the country-of-origin principle. They will therefore need to take steps to bring themselves under the jurisdiction of a Member State in order to avoid facing barriers to reception and retransmission for failing to comply with any other Member State’s regulatory requirements. We are aware that this has already led several UK broadcasters to make arrangements to become regulated in one or other Member States. They have not thought it sufficient to rely on the country-of-origin principle established by the Council of Europe’s Convention on Transfrontier Television ("ECTT"), not least because countries such as Ireland, the Netherlands, Belgium, Sweden and Denmark have not ratified it, nor does it extend to broadcasters’ video on demand services.
As to the reverse situation, that is, of broadcasters established in EU Member States who wish to have their services carried on UK platforms to UK audiences, the position is as follows:
- Linear TV service providers. For entities that provide linear TV services in the UK, the UK Government has amended the applicable UK licensing regimes to address the loss of the country-of-origin principle following the Transition End Date. For services that appear on regulated UK Electronic Programme Guides, any such service requires a UK licence and will be subject to UK regulations. Excluded from this are TV services made available from countries that are parties to the ECTT, and certain specified Irish services: those services will be subject to the country-of-origin principle and the regulations of their ‘home’ jurisdiction.
- Video on demand service providers. The ECTT only applies to linear TV services, so its country-of-origin principle does not apply to video on demand service providers. Following the Transition End Date, such services will be subject to Ofcom regulation where both the head office is in the UK and editorial decisions are made in the UK. Any such services outside of UK jurisdiction but who provide their services to people in the UK will still be available. If Ofcom considers that they are flouting regulatory rules, Ofcom will liaise with their foreign regulator.