On 13 April 2021, the House of Lords is due to debate the Audiovisual Media Services (Amendment) Regulations 2021.

The regulations are subject to the draft affirmative procedure, meaning both Houses must approve them before they can come into force.

If approved, this instrument would amend the Audiovisual Media Services Regulations 2020 (SI 2020/1062). These have already been amended once by the Audiovisual Media Services (EU Exit) (Amendment) Regulations 2020 (SI 2020/1536).

Background

In Autumn 2018, the EU revised its Audiovisual Media Services Directive. The European Commission instructed EU member states to transpose the new directive into national legislation by 19 September 2020. As the UK was in its transition period with the EU at this time, the UK was required to transpose the revised directive into UK law.

The UK Government transposed the revised EU directive with the Audiovisual Media Services Regulations 2020 (SI 2020/1062), which was signed into law on 30 September 2020. The Government said that a number of requirements in the revised directive were already in place in the UK, such as a ban on advertising for foods high in salt and sugar. However, the measure introduced some new requirements. One of these was to align rules for on-demand programme services with those for linear TV. Another was to introduce rules for video-sharing platforms to take “appropriate measures” to protect users from specified harmful content.

On 15 October 2020, the Government laid the Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020 (SI 2020/1536) before Parliament. These made some amendments to the Audiovisual Media Services Regulations 2020 (SI 2020/1062). In its explanatory memorandum for this first set of amendment regulations, the Government set out that they were necessary to fix some jurisdictional issues that would arise when the UK left the EU on 31 December 2020. Both Houses approved them in November 2020.

The explanatory memorandum also set out that a second set of amendment regulations would be needed to fix some remaining technical issues. These technical fixes have been laid under the Audiovisual Media Services (Amendment) Regulations 2021.

What would the instrument do?

The instrument would make further changes to the original Audiovisual Media Services Regulations 2020 (SI 2020/1062). These include:

  • Substituting references to EU legislation with references to domestic law.
  • Removing the requirement on Ofcom to notify the European Commission of any changes to the UK’s lists of providers of linear TV, on-demand programme services or video-sharing platform services.
  • Replacing the duty on Ofcom to co-operate with EU regulators with a power for Ofcom to do so.

The explanatory memorandum accompanying the regulations states that this is to address “remaining deficiencies and inoperabilities” in the UK’s audiovisual regulations following the UK’s exit from the EU.

Online safety bill

In response to a question on internet safety on 15 December 2020, Parliamentary Under Secretary for the Department for Digital, Culture, Media and Sport Baroness Barran stated that the requirements for video-sharing platforms to tackle online harm, as laid out in the EU’s directive and transposed into UK law, would be repealed and superseded by a UK online harms regulatory framework.

The Government set out its proposed online harms regulatory framework in its Online Harms White Paper, published on 8 April 2019. Following a consultation, the Government produced a factsheet outlining its full response to the consultation and proposed next steps in December 2020.

During a debate about online anonymity and anonymous abuse on 24 March 2021, Parliamentary Under Secretary for the Department for Digital, Culture, Media and Sport Matt Warman said that the “the online safety bill will be ready this year”.

What scrutiny of the instrument has there been?

As part of early scrutiny work, the House of Lords Secondary Legislation Scrutiny Committee (SLSC) recommended upgrading the instrument from the negative to the affirmative procedure. The Government accepted this recommendation.

The SLSC then noted the instrument as one of interest in its 48th report, published on 11 March 2021. Outlining its concerns, the committee said that:

While replacing a duty on Ofcom to co-operate with regulators in the EU with a power to do so could be considered appropriate in the absence of mandatory reciprocity after EU exit, this nevertheless creates some uncertainty with regard to the effectiveness of tackling online harm: key content providers, such as YouTube, are based and regulated in the EU. We have previously raised concerns about enforcement after the end of the transition period and that, as a third country, the UK will now have to rely on informal co-operation with regulators in the EU. While the Government have committed to tackling online harm, especially in relation to young people, through an online harms bill, there is currently not a clear timetable for this bill.

The Joint Committee on Statutory Instruments also considered the regulations, but did not report on them.

The House of Commons has not yet debated the instrument.

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