DMB0038

Written evidence submitted by Motion Picture Association

Motion Picture Association submission to the Culture, Media and Sport Select Committee pre-legislative scrutiny of the Draft Media Bill

The Motion Picture Association (MPA) is pleased to respond to the Committee’s call for evidence on the Draft Media Bill (“Draft Bill”). MPA’s remarks are confined to the parts of the Draft Bill regarding the regulation of on-demand programme services in the UK.

About the MPA

The MPA is the international trade association for the major companies that invest-in, produce, distribute, and market film and television content in the UK: Walt Disney Studios Motion Pictures, Netflix Studios, LLC, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Universal City Studios LLC, and Warner Bros. Discovery.

MPA member companies represent a key part of the UK film and television industry, both as significant inward investors and with a strong permanent presence in this country, including owning major production companies and facilities such as Working Title Films and Leavesden Studios.

The combined total UK spend on film and high-end television (HETV) productions for the 2022 was £6.27 billion [1]. This is by a substantial margin the highest figure seen since records began.

Inward investment productions account for more than 80% of that total. The benefits of this are felt UK-wide, with production expanding in the UK regions, creating jobs, developing skills, and providing opportunities for people of all backgrounds to join the industry.

Proposals to regulate further on demand programme services

The Government has proposed a number of changes to the regulation of on demand programme services available in the UK. This follows its consultation in the autumn of 2021 and White Paper, 2022.

The Draft Bill contains provisions providing Ofcom with new regulatory powers to draft and enforce a Video-on-Demand Code. It extends regulation to services that, while they may not be headquartered in the UK or make editorial decisions in the UK, are nonetheless made available to members of the public in the UK.

Tier 1 Services

Under the terms of the Draft Bill, the Secretary of state has considerable discretion in relation to the designation of Tier 1 services, including non-UK on-demand programme services.

These decisions have important implications for the industry, and the role of Ofcom in providing evidence to underpin the decisions (as the industry regulator with the overall health of the sector within its remit) should be clearly established.

Although the Draft Bill requires the Secretary of State to request a report from Ofcom before making the first set of regulations, it is not clear from the Draft Bill what criteria would be used to determine which services would be designated Tier 1.

The Draft Bill allows the Secretary of State to include “any matters [she] specifically asks to be included.” This is a very wide-ranging power, and it would be better to have criteria either listed in the Draft Bill or put on the record by the Secretary of State as the Draft Bill passes through Parliament. Any criteria should be objective, proportionate, non-discriminatory and future proof, and it would be helpful to have the Secretary of State make that explicit in Parliament.

Furthermore, the Secretary of State should be required to consult with Ofcom and industry (following production of Ofcom’s report) before making regulations to designate Tier 1 services. The process should be as transparent as possible, with the Secretary of State reporting to Parliament on her intentions at the point that secondary legislation is introduced. It should also allow appropriate time for implementation.

Finally, it would be helpful to have the Secretary of State set out her expectations with regard to services that are not included in Tier 1.

Audience protection

MPA members welcome that in both the 2022 White Paper and the Draft Media Bill, the Government has rejected a one-size-fits-all approach to audience protection for on-demand services.

This recognises that MPA members providing on-demand programme services already have clear and well utilised methods to protect audiences – and particularly children – online.

Having strong audience protection measures in place is not simply a regulatory consideration for MPA members but is integral to their carefully curated brands and continued growth in a rapidly developing and highly competitive global audio-visual marketplace.

BBFC ratings can be a part of this for some services, alongside global rating systems based on a number of inputs (including cross referencing against pre-existing BBFC ratings). MPA welcomes the Government’s support for a flexible approach that encourages innovation and effectiveness, rather than mandating specific measures.

MPA members also employ other parental controls, including pin control systems, which are well-understood tools to help families manage their audience protection choices and preferences.

While MPA members broadly support the position proposed in the bill in relation to Ofcom’s discretion in relation to age ratings, it important for Ofcom to ensure that, in keeping with good regulatory principles, the regime remains affordable, workable and proportionate to the service in question.

In preparing the new code, Ofcom will also need to ensure businesses are able to transition to the new regime – which may involve changing user interfaces – through clear guidance and sufficient time to avoid unnecessary business friction.

Ofcom standards code for Tier 1 services

In proposing the Draft Bill, the Government has recognised that there are important distinctions between scheduled broadcast services and on demand programme services.

In particular, there is a difference between the active viewing choice audiences make when watching content from on-demand services and those they consume more passively from available linear channels. This affects the degree to which the regime developed for broadcast regulation can translate directly across to the on-demand world.

There are a number of differences proposed for the new on-demand regulatory regime.

The Bill does not, for example, propose to incorporate the advertising and product placement provisions covered under the Broadcasting Code in the new standards code for on-demand programme services. (Issues relating to online advertising are addressed via separate Government consultation).

In some areas, however, the Government's objectives remain unclear and require further explanation from Ministers and/or Ofcom on how they intend to proceed. For example, in relation to the requirement for Ofcom to include within the video on demand code measures to preserve “due impartiality” and in the production of guidance on ways in which this can be met by service providers.

The Draft Bill recognises that the nature of linear broadcasting requires certain provisions with regard to impartiality that would have little relevance in the on-demand world. However, it remains unclear how exactly the requirement for “due impartiality” would operate for on-demand services that host varied catalogues of ‘evergreen’ content in which multiple viewpoints might be expressed.

Nor is it clear how the special impartiality requirements applying at the time of elections and referendums under the Broadcasting Code would be applicable with regard to on-demand services.

Further clarity from Ministers and Ofcom is required on their intentions regarding the special impartiality requirements for on-demand programme services to provide industry with greater confidence in making content investment decisions that are by their nature a long time in planning.

Accessibility

MPA members are always working to ensure their services are as accessible to as many people as possible, for example, through the widespread use of subtitling and audio description.

Our members are well placed to respond to the additional requirements contained in the Draft Bill.

However we do think it is important to acknowledge existing arrangements, such as the partnership relationships in place between MPA members and accessibility service providers, such as the British Sign Language Broadcasting Trust (BSLBT).

It has long been recognised that supporting alternative programme-making arrangements – such as those provided by BSLBT – is a valuable resource in making more content available for deaf and hard of hearing viewers.

It is important that these relationships are able to continue to be supported under the new regime.

For further information, please contact, Nigel Warner or Michael Wilén.