Draft Audiovisual Media Services (Amendment) Regulations 2021

Caroline Dinenage Excerpts

Monday 19th April 2021 General Committees

[The Minister for Digital and Culture (Caroline Dinenage)]

I beg to move,

That the Committee has considered the draft Audiovisual Media Services (Amendment) Regulations 2021.

This instrument, laid in both Houses on 25 February, is being made under the European Union (Withdrawal) Act 2018. The regulations remedy certain failures of retained EU law arising from the withdrawal of the United Kingdom from the EU. Through this statutory instrument, we are seeking to address minor and technical issues in domestic law following the transposition of the audiovisual media services directive by the Audiovisual Media Services Regulations 2020. It is necessary to ensure that the law remains fit for purpose beyond the end of the transition period.

The regulations amend references to EU legislation, substituting domestic law references where appropriate and making references to EU legislation ambulatory where appropriate. They also remove the requirement for Ofcom to notify the European Commission of in-scope services falling within the UK’s jurisdiction and address Ofcom’s co-operation with EU member state regulators. These regulations were debated and approved by the House of Lords on 13 April.

I would like now to look quickly at the regulations in a little more detail. The EU’s audiovisual media services directive, known as the AVMS directive, governs the co-ordination of national legislation on audiovisual media services. It was initially implemented into UK law in 2010, primarily by way of amendments to UK broadcasting legislation. The UK’s Audiovisual Media Services Regulations 2020, which transposed the revised AVMS directive, were made and laid in Parliament on 30 September.

The 2020 regulations came into force on 1 November last year; for the first time, they introduced rules for video-sharing platform services. The Government have appointed Ofcom as the regulator for video-sharing platforms falling under the UK’s jurisdiction. The rules ensure that platforms that have the required connection with the UK have appropriate systems and processes to protect the public, including minors, from illegal and harmful material. “Required connection with the UK” means that the platform provider is established in the UK or that a group undertaking of the provider is established in the UK and the service is not regulated by another EEA country. In those circumstances, Ofcom will have jurisdiction to regulate the video-sharing platform service.

The three requirements placed on video-sharing platforms under the 2020 regulations are: first, to take appropriate measures to protect minors from content harmful to those under 18 years of age; secondly, to take appropriate measures to protect the general public from harmful and certain illegal content; and thirdly, to introduce standards around advertising.

Ofcom has published guidance on scope and jurisdiction. It is also continuing to actively engage with platforms that may be in scope of the regime. In March this year, Ofcom published draft guidance for consultation on the list of measures that video-sharing platforms can take to protect users from harmful material. More vigorous regulation will commence once all guidance on video-sharing platform regulation has been published later this year.

--- Later in debate ---

[Caroline Dinenage]

I thank the hon. Lady for her questions. First, she mentioned Ofcom’s duty, as opposed to a power, to co-operate with EU regulators and suggested that that could result in uncertainty regarding enforcement platforms whose services are used in the UK. In the post-transition period, co-operation continues to be of the utmost importance. The regulations provide Ofcom with the power to co-operate and collaborate with its EU member state counterparts. That is crucial, as she said, because we need to have to have that co-operation to keep people safe.

Co-operation and sharing of information between national regulatory authorities is really helpful in enabling authorities to fulfil their functions in the most effective and coherent way. Ofcom will be able to use the power to co-operate in a number of circumstances, including: co-ordinating enforcement action; ensuring substantial cross-border compliance; exchanging regulatory best practice, which we all want to adopt; and, most importantly, addressing jurisdictional matters such as determining where a provider is established, which will ensure that UK users are protected from illegal material that appears on a video-sharing platform that is not regulated by the UK.

In the absence of this statutory instrument, Ofcom will be able to engage only in non-specific informal co-operation with other EU regulators—things such as exchanging regulatory best practice, rather than, for example, co-ordinating enforcement action. This could result in a lack of transparency between regulators and lead to less effective protection of UK users, including, crucially, minors.

Although this instrument does not guarantee that EU counterparts will reciprocate and co-operate with Ofcom, these regulations show a willingness on behalf of the UK Government that Ofcom should engage and promote collaboration in this really important area of online safety. There should be no regression in reciprocity. It is really important to keep us all safe online. Leaving a duty to co-operate in place would be inappropriate because of the lack of reciprocity from EU member states, and would provide no incentives for EU national regulatory authorities to co-operate with Ofcom.

[Chi Onwurah]

I thank the Minister for her comments, which are enlightening. Were there discussions around maintaining a mutual reciprocal duty to co-operate on this issue?

[Caroline Dinenage]

I will drop the hon. Lady a line on that because I do not know for sure. She asked how long this will last and how it works in relation to the online safety Bill. As she knows, we are working at pace to prepare the legislation. It will be ready shortly and she will be able to cast her eyes over it in the near future. In the meantime, we are working closely with Ofcom and will continue to engage with parliamentarians as we prepare the legislation.

Of course, we recognise the importance of being online and the benefits that that brings, but we have seen most poignantly during the coronavirus period how online safety can be a major concern. There are serious risks that users, particularly children, currently face when they are online. It has been brought to a head over the past year, and the prevalence of illegal and harmful content and activity online is unacceptable and has become more so. We have made clear our intention to repeal the video-sharing platform regime in part 4B of the Communications Act 2003 once the more comprehensive online harms regime comes into force.

In the interim, through regulating and engaging with video-sharing platforms, Ofcom will have the unique opportunity to understand the potential challenges and opportunities to be harnessed with systems regulation. These vital learnings, combined with the scope to engage with UK-established video-sharing platforms, will no doubt strengthen the online harms regime once it comes into force.

This instrument ensures that the law remains clear and operable. It is required to remedy the failures of retained EU law arising from the withdrawal of the UK from the EU. The instrument will allow Ofcom to progress the implementation of the video-sharing platform regime and provide protections for UK users, especially minors.

The UK and EU have similar objectives, and we continue to share similar values when it comes to protecting users online. Through the introduction of a power to co-operate, we are signalling our commitment to working with our European and international partners. This engagement will strengthen our ability to keep UK users protected from illegal and harmful material on video-sharing platforms not established in the UK ahead of the upcoming online safety legislation.

[Chi Onwurah]

I thank the Minister for her comments. I also asked about European works and whether the definition of European works could be changed to exclude the UK at a future date.

[Caroline Dinenage]

Again, I will drop the hon. Lady a line on that.

Question put and agreed to.