DMB0051

Written evidence submitted by Reset and the Public Interest News Foundation

DCMS Committee Call for Evidence

Pre-legislative scrutiny of the Draft Media Bill written evidence

May 2023

About Reset and the Public Interest News Foundation (PINF)

1. Reset (www.reset.tech) seeks to improve the way in which digital information markets are governed, regulated and ultimately how they serve the public. We do this through supporting new public policies across a variety of areas including data privacy, competition, elections, content moderation, security, taxation and education.

2. PINF works in partnership with colleagues in the UK and around the world to understand the unique contribution that independent news providers make to society and democracy. We use this research to design and deliver programmes that build the capacity of independent news providers and improve public understanding of their work.

Introduction

3. Public service broadcasters (PSB) and the journalists who serve them focus on the production and distribution of unbiased and impartial information. This strictly regulated prioritisation of accurate, accessible and diverse programming has made PSB a cornerstone of our democracy. But in recent years the rise of online search and social media has undermined the business model of newsroom journalism. In place of investigative, deep-dive commentary, social media companies serve up disposable, sensationalist content which services their business model: one which prioritises digital advertising revenues over quality content. This shift in standards does not serve the public interest, and the disregard for quality information undermines democracy. As has been acutely apparent in recent years during the Covid-19 pandemic, US Capitol insurrection and the Russian invasion of Ukraine, it also lends itself to abuse and manipulation: spewing out falsehoods and disinformation at a dangerous rate. In times of crisis, PSB has a critical role to play in responding to public need. Now more than ever it must be strengthened and supported by government and public policy.

4. Ofcom polling in recent years has shown that public exposure to misinformation and disinformation is extraordinarily high. For example,during the critical early weeks of the Covid-19 pandemic, around 50% of respondents said they encountered false or misleading information on a weekly basis.[1] And it is not surprising that the vast majority of this disinformation, particularly around 5G and anti-vax, was witnessed on social media sites. Notably, the polling revealed that weekly levels of such exposure did not fall much below 30% throughout the 76 weeks of polling, despite much publicised attempts by tech companies to reduce disinformation.[2] Social media is still awash with links to clickbait sites that are profiting through online ads from people panic-consuming online information as they search for answers.

5. In response, as the Ofcom polls show, people do turn to traditional media outlets to access trustworthy information. During the height of Covid-19, these outlets remained the most-used source of news about the pandemic, with over 80% of respondents using them on a weekly basis throughout the 76 weeks. This compared to around 30% of respondents looking to social media for information or news on the pandemic.[3] Moreover, as a study by King’s College London showed at the time, those that did turn to social media for their news were more likely to believe conspiracy theories and were more likely to break lockdown rules.[4] So despite the meteoric rise of social media in the 21st century, PSB is still the safest and most trusted source of information in times of crisis.

6. Government is a crucial backstop for PSB. Through regulation - overseen by an independent regulator - it fills a gap that the current market cannot provide. It is right to legislate to secure the future of PSB in the digital age, and to include provisions for it to continue adapting to these new online challenges. Effective public policy should help PSB to innovate while maintaining its commitment to unbiased reporting and programming.

Overview position on the draft Media Bill

7. In light of the threats to PSB outlined above and the rapid evolution in audiovisual content creation and consumption habits in the UK, we broadly support the Draft Media Bill’s objectives to:

-          update the legislative framework for UK PSB;

-          raise PSB’s prominence across on-demand services;

-          Strengthen and more rigorously apply Ofcom’s content code for mainstream video-on-demand services consumed in the UK to protect audiences from a wider range of harmful and misleading material.

8. We welcome provisions in the Bill to reinforce video on demand (VoD) viewers’ ability to formally complain to Ofcom, and strengthen the regulator’s duty to assess audience protection measures on VoDs such as age ratings and viewer guidance. We also support the more robust powers afforded to Ofcom in the Bill to investigate and take action to enforce standards if required through the issuance of fines or service restrictions in the UK.

9. However, we maintain that the draft Bill delegates too many secondary powers to the Secretary of State that would undermine the authority of the independent regulator. As with many other bills the Government has proposed, this increased power for the executive at the expense of independent regulators leaves the regime vulnerable to undue politicisation. We have some outstanding questions on the scope and definitions of tier 1 services; the read across of new proposed provisions for Ofcom oversight of VoD to radio “on demand” provision; and the interoperability with online safety legislation pertaining to news publishers with respect to Ofcom’s enhanced jurisdictional reach and responsibilities in the VoD space. The Bill also falls short of guaranteeing a clear long-term funding model for the BBC as our primary publicly funded PSB, or a more level playing field for commercial PSBs competing in a highly profit-driven online advertising market controlled by the big tech companies.  

Public Service Broadcasting

10. Recognising the continued growth in consumption of content online, as well as the critical service provided by PSBs in disseminating accurate and impartial information, We support the provisions in Part 1 of the Bill updating the legislative framework for PSB quotas to include the delivery of public service content through digital platforms. Ofcom research from 2022 on audience news consumption confirmed that preferences in news consumption according to age were changing rapidly, with younger age groups “much more likely to use the internet and social media for news, whereas their older counterparts favour print, radio and TV."[5] This shift is set only to strengthen as the popularity of linear broadcasting and print media continue to decline.

11. For the same reasons as above, we also support provisions in Part 2 of the Bill requiring public service content on designated online viewing services to have increased prominence so that they are easily visible and accessible to users. We would welcome a clear definition or examples of what references in the draft Bill to an “appropriate degree of prominence” constitute in practice, and how this appropriate degree of prominence might be carried across to (for example) voice activated radio selection services. 

12. We note a possible lack of precision in the draft Bill relating to the definition of TV selector services (TVSS) when implementing these prominence rules. For example, where the operating system is separate from the television set it is shown on (e.g. Android on Sony), it should be clear in the Bill whether the TVSS burden falls on the operating system provider or the TV manufacturer. It should also be made clear in the Bill that a PSB qualifying for prominence should avail of it with no additional fee paid to the TV app selector service hosting it.[6] The Bill’s position here is opaque compared to its provisions on radio: while prominence rules only apply to television, Part 6 of the Bill regulates the findability of radio services so that simulcasts of UK licensed radio stations will be made available on specific voice-activated connected audio devices at no cost to the radio station itself.

13. We would also seek clarification on the relationship of TVSS to “internet television equipment” as defined in the Communications Act 2003.[7] The Explanatory Notes to the draft Media Bill state that the “intention is to capture devices such as Smart TVs and set-top boxes” and also streaming sticks.[8] The supporting material does not seem clear where the boundary lies between traditional television and other platforms for television viewing whose use has exploded in recent years. We see an important question being whether devices primarily aimed at accessing the internet in general are included: for example, how a mobile phone – where internet access is one functionality of a number – should be treated. The prospect of an app being regulated differently depending upon the hardware it is used on raises questions about technological neutrality of the regime.

Video-on-Demand

14. We support provisions in Part 4 of the Bill that give Ofcom new regulatory powers to draft and enforce a Video-on-Demand (VoD) Code for major UK and non-UK on-demand programme services, categorised collectively as Tier 1 services. Given these services’ extensive and growing use by UK audiences, this new code must be brought up to the same content standards as those required of linear UK broadcasting services in sections 1 to 8 of the Ofcom Broadcasting Code with respect to issues such as harmful or offensive material, protection of under 18s, accuracy and impartiality in news and elections, fairness and privacy requirements.[9]

15. The criteria for designating an on-demand service as Tier 1 should be included within the Bill and consider among other things:

-          the size of its UK audience;

-          the proportion of its audience composed of children and young people;

-          the proportion of its content dedicated to news or informational programming.

As elaborated below at paragraphs 20 and 21, the power to designate an on-demand programme service should rest exclusively with the regulator - not the Secretary of State - in order to ensure an impartial and non-partisan assessment of services that qualify for this categorisation.

Radio

16. We support provisions in Parts 5 and 6 of the draft Bill to update the regulatory framework for commercial radio and to protect UK radio’s availability on connected audio devices, including ensuring that stations cannot be charged for the provision of their live service to listeners and that they are findable in response to a listener request.

17. However, the draft Bill does not appear to specify whether the provisions in Part 4 of the Bill to give Ofcom new regulatory powers for a Video on Demand code would extend to “on demand” radio (i.e. podcasts). Given the increasing popularity of this medium for the consumption of news and informational programmes, it would seem logical for on-demand content produced by regulated radio services to be subject to the rules of a similar (or the same) code.

General issues

Ofcom’s new and updated obligations

18. The regime set out in the Online Safety Bill (OSB) imposes additional duties on Category 1 service providers to give specific consideration to news publisher and journalistic content (cls 14 and 15) and content of democratic importance (cl 13). Of particular importance are the duties to protect news publisher content (cl 14) which introduce a form of ‘stay up’ regime for news publisher content. This potentially includes some entities using platforms such as YouTube as a broadcasting/VOD platform. If a Category 1 provider takes action against news publisher content on their platform, they must comply with steps set out in cl 14(3) of the Online Safety Bill which include informing the content creator and providing reasoning before taking any such action. Exceptions to this requirement include if the provider determines that the content could incur civil or criminal liability, and where a legal determination has been made, in which case they can remove the content before informing the publisher of the decision. However, a determination by the regulator is not currently included within the justifications for exemption from cl 14(3).

19. It is therefore possible that the OSB’s ‘stay up’ regime could come into conflict with or delay action on requirements in the Media Bill extending Ofcom’s duties over (as yet undefined) tier 1 services’ content including non-UK VoD providers. We conclude that the simplest way to avoid this conflict would be to introduce an amendment to the OSB enabling an Ofcom determination to be considered sufficient justification for the removal of news publisher content without requiring the cl 14(3) process. However, any equivalent workaround ensuring interoperability between the two legislative provisions would be acceptable.

20. As a general observation, given the new and expanded responsibilities afforded to Ofcom in the draft Bill, the regulator will need assurance that its budget and resourcing can keep pace with these additional functions, particularly alongside the additional responsibilities it will take on in implementing online safety legislation.

Delegated Powers

21. The Draft Media Bill contains 37 delegated powers, 23 of which are delegated to the Secretary of State and eleven of these by Henry VIII power. The rest are conferred to Ofcom. While we recognise the rapidly evolving character of audiovisual content creation and consumption in the digital age and the subsequent need for the legislation to keep pace with these evolutions, we believe that the draft Bill confers too many powers to the Secretary of State. In many of these instances the Department for Culture, Media and Sport does not convincingly justify why these powers cannot be delegated to Ofcom as the independent regulator.[10]

22. The number of delegated powers to the Secretary of State in the draft Bill reinforces a worrying trend in recent years toward increasing the power of the executive to direct the implementation of legislation at the expense of independent expert regulators, and without the degree of Parliamentary scrutiny afforded to primary legislation. This has the effect of undermining the authority of the regulator and the impartiality of decision-making on implementational matters that are in the interest of UK citizens. It is essential in a healthy democracy and to safeguard freedom of expression and a diversity of opinions for regulatory authorities’ decisions to be divorced from political influence, particularly in the media and broadcasting space. Once the Bill becomes law, the role of the Secretary of State should be limited to reviewing the strategic direction and overall objectives for Ofcom, as well as to ensure that the regulator is held to account for its decision-making through regular reporting and Parliamentary scrutiny.

23. We believe that Ofcom, not the Secretary of State, should be responsible for determining for example:

-          the length of time that public service content must be available online;

-          The definition and designation of “regulated television selection services”;

-          The designation of different financial penalties for non-compliance;

-          The designation of tier 1 on-demand services;

-          The composition of the list of matters Ofcom must consider in setting the standards code for tier 1 services;

-          The modification of access service requirements;

-          The restrictions on holding licences for radio services;

-          The designation, conditions and modification of provisions for radio selection services.

24. We do not believe that the current justifications for the Secretary of State taking these powers are sufficiently robust, and recommend in each case fuller analysis of why Ofcom’s competence to make decisions on these matters is considered insufficient.

Funding and Governance

25. For many years PSBs have faced significant and increasing budgetary constraints. The diminishing return of the licence fee as a result of increasing evasion and changes to the age-related concession is putting pressure on the BBC, and the long-term decline of TV advertising has impacted all the commercial PSBs.[11]

26. As such, we would like to see the Bill contain more robust provisions on the funding models for publicly funded PSBs which are critical for their long-term sustainability. Given the expensive requirement for PSB to continue providing linear services in addition to partaking in a highly competitive online market, there is a considerable risk of their resources being spread too thinly with potentially negative consequences in particular for quality impartial journalism and diverse accessible programming. In the case of the BBC, enshrining in the Bill some certainty around the continued validity and enforcement of the licence fee (or equivalent sustainable funding model) would enable the corporation to invest in quality public service broadcasting into the longer term.

27. For commercial PSBs, the Digital Markets Unit must address the lack of competition and regulation in online advertising. It is currently very difficult for PSBs to generate significant revenue from the sale of advertising on online platforms given the demands that some of the technology giants place on commercial PSBs to share advertising revenue. This compromises the financial viability of PSB content hosted on these platforms which is an increasingly popular mode of content consumption, particularly among younger viewers. Indeed, the CMA has raised concerns over the dominance of platforms in the online advertising market leading to “wider social, political and cultural harm through the decline of authoritative and reliable news media”. [12] The Digital Markets, Competition and Consumers Bill must contain explicit provisions for the DMU to increase fairness and competition in online advertising and for the Media Bill to read across to these provisions.  

8