The Media Bill is currently making its progress through Parliament in the United Kingdom. A surprising clause appears to have been inserted since the Draft Media Bill was first published. It appears to give the BBC a special exemption from the must-offer and must-carry obligations for online services.
The Draft Media Bill introduced must-offer and must-carry obligations for designated internet programme services, subject to the need to agree contractual terms of carriage. This was intended to ensure that any designated internet programme service is offered as part of a regulated television selection service. This specifically applied to any service of television programmes provided by the BBC, as well as those of Channel 3, Channel 4, Channel 5, and S4C.
It was therefore surprising to read in paragraph 362AJ of the version of the Bill as introduced in the House of Commons an additional clause that the must-offer provisions “do not apply where provider of a designated internet programme service is the BBC”.
This appears to be inconsistent with one of the aims of the Media Bill, which is to provide prominence for the services of public service media organisations including the BBC.
One of the mechanisms by which prominent availability is supposed to be achieved is through a mutual obligation on providers of designated services and providers of regulated television selection services that they respectively must-offer and must-carry designated services, subject to the need to agree terms.
This would mean, in effect, that the BBC would have to offer the BBC iPlayer or other designated online services to such third parties and they in turn would be obliged to carry them with appropriate prominence.
It seems strange that the BBC, which has been such an advocate for prominence of its services in the face of increasing competition, should be subject to a specific exclusion in the Bill as introduced to Parliament. It also seems inconsistent that this should not apply to other public service media providers. This seems far from the level playing field that the Media Bill was intended to achieve.
As a result of such an exclusion, it appears the BBC would be legally able to withhold online services, including the BBC iPlayer, from other platforms or impose terms that might differ from those of other providers.
That could potentially be used to favour platforms in which the BBC is a shareholder, such as the proposed Freely service being developed by Everyone TV.
The BBC iPlayer is the most used online service of the public service media organisations and television licence payers might reasonably assume that legislation intended to provide prominence to public service media providers would apply to ensure that it is universally available and accessible.
With a transition from traditional broadcast delivery to online distribution, there should also be an expectation that the online channels of the BBC should be universally available.
Furthermore, consumer electronics companies that may become subject to the regulation of television selection services might reasonably assume that the same rules would apply to the BBC as other broadcasters.
What is worrying is that this change to the proposed legislation appears to be have been made quietly, presumably through lobbying, and that few seem to have noticed the implications.
The main industry trade organisation that represents the interests of the digital television ecosystem in the United Kingdom was apparently unaware of the change until it was raised by informitv.
It was certainly not discussed in the debate by Members of Parliament at the second reading of the Bill. As the proposed legislation now passes to the committee stage there will be an opportunity for closer scrutiny of the Bill.
At the very least, Members of Parliament might pause to question why a key provision should not apply the BBC, an institution they purport to wish to protect.
The text of the Media Bill as introduced is available from the Parliament Publications web site. The previous text of the Draft Media Bill published on 29 March 2023 is available as a Policy Paper from the media and creative industries section of the Government web site.