No-Deal Brexit – Implications For Broadcasters

The government recently published the Broadcasting (Amendment) (EU Exit) Regulations 2019 (the "Regulations"), which will come into force in the event of a no-deal Brexit. The Regulations will make a number of changes to primary and secondary legislation to address certain deficiencies arising from the withdrawal of the UK from the EU.

In particular, the Regulations address issues of authorisation (given that the UK would no longer be part of the "country-of-origin" principle under the Audiovisual Media Services Directive (the "AVMS Directive") on a no-deal Brexit) as well as content standards, European works, listed events, conditional access services, on-demand programme services, unauthorised decoders and gambling.

An explanatory memorandum has been published alongside the Regulations, and is accessible here.

The AVMS Directive

The AVMS Directive is the main piece of EU legislation regulating the audio-visual media market. It provides for freedom of reception and transmission of television and other audio-visual services across the EU. Under the AVMS Directive, audio-visual media services licensed or authorised in the country from which they originate can be broadcast into any other EU member state without further authorisation under the country-of-origin principle.

The AVMS Directive was implemented in the UK pursuant to a number of pieces of legislation, including the Broadcasting Act 1990, the Broadcasting Act 1996 (the "BA 1996") and the Communications Act 2003 (the "CA 2003"), and certain reciprocal aspects, in particular the country-of-origin principle, will no longer apply in the UK if it leaves the EU without a deal.

Authorisation

The Regulations amend the authorisation system in the UK to a "country of destination" system. Subject to certain exceptions, section 211 of the CA 2003 is amended such that any television services available in the UK must be licensed and regulated by Ofcom (regardless of their origin).

The Regulations also implement the European Convention on Transfrontier Television (the "ECTT") to continue a system of freedom of reception and transmission, content standards and mutual co-operation between parties to the ECTT. The changes implemented by the Regulations would mean that broadcasters in states that are members of the ECTT will not need a licence from Ofcom to broadcast into the UK. In effect, the country-of-origin principle would be retained in relation to ECTT countries.

UK broadcasters established in...