Media Bill

Damian Collins Excerpts

2nd reading
Tuesday 21st November 2023 Commons Chamber

[Damian Collins (Folkestone and Hythe) (Con)]

A number of hon. Members have mentioned how long it has been since the last major piece of media legislation, but it is worth reflecting on that period of change and what it means. When the Communications Act 2003 was passed more than 20 years ago, Amazon was a relatively small online retailer selling music, books and video games, Netflix delivered videos and DVDs by mail order for people to watch at home, and YouTube did not exist. If we had asked someone then what a smart device was, they would probably have guessed that it was a scientific calculator. There were no smart devices, and the iPhone was still some years away from existing.

The idea that every one of us would carry in our pockets a device allowing us to watch live television whenever we like would not have been envisaged, or people would have thought that to be far off. That is significant not just because technology changes the media landscape but because it has a massive impact on viewing habits. That in many ways is the real challenge faced by the public service broadcasters today. The Bill is a hugely welcome step towards addressing some of those needs, but there will continue to be an ongoing challenge.

All Ofcom data is clear that, with the exception of the pandemic period when everyone watched a lot more television, public service broadcasting is declining. The minutes people spend each day watching public service broadcasting are declining year on year. Broadcasters face ongoing pressure not just from that audience decline but from rising costs through inflation for television production, which are running much faster than the consumer prices index. That puts an inevitable squeeze on budgets.

Public broadcasters that have the luxury of making more of their own programmes while raising money through subscriptions and other things are better placed to deal with that audience change. Nevertheless, it is there. The biggest challenge that the BBC faces is not about it not making brilliant programmes, not having fantastic writers or not nurturing brilliant talent; it is that people are voluntarily declining to pay the licence fee simply because they feel their needs in gathering news or watching fantastic programming can be met elsewhere.

The challenge that Channel 4 has faced is that, without the ability to invest in programmes from which it can make money, it relies solely on advertiser revenue, and that revenue is under challenge all the time, so it is much harder for it to be sustainable and to plan for the future. I welcome the Government’s introduction of measures in the Bill to change Channel 4’s remit. I understand the concerns raised by companies in the independent production sector, but I think they would recognise that that sector is totally different from when Channel 4 launched. At that time, a lot more BBC and ITV production was done in-house and there were no other routes to television.

Channel 4 created an opportunity for independent production companies to launch businesses, make programmes and gain an audience that otherwise would not have existed. Now, there are huge opportunities for independent producers. While Channel 4 is an important part of that ecosystem, it is by no means the only one, so the best thing we can do for the independent sector is ensure that Channel 4 is in as robust health as possible so that it can commission more, because 65% or 70% of a bigger TV company is worth a lot more than 100% of a very small one, or one that is struggling to continue to exist.

Those are the ongoing challenges that the PSBs will face, and the fight for attention will only continue. People now are more distracted not only by video-on-demand services but by video gaming and other forms of audio-visual entertainment. That is the backdrop against which the Bill is being introduced.

The question of the degree of PSB prominence on connected devices—modern televisions that are internet-connected and totally integrated with people’s on-demand viewing habits—is incredibly important. Whether that level of prominence is “significant” or “appropriate” is an important debate. Is it enough simply to have the television schedule there on the device, with that schedule the live schedule ranked in order on the electronic programming guide as we are used to seeing it? How easy is that to find? Will people be constantly shifting through menus for on-demand services, be those Netflix, Amazon, Sky programming or whatever, before they find the television guide?

We see in Ofcom’s yearly audience analysis data from its media nations report that those under the age of 40 do not really regard television as a live product any more, unless they are watching the news or live sport; it is an on-demand product. If we asked student audiences what they thought of the TV schedule, they would find the idea of going home, turning on a television, pressing the No. 3 button and watching live what had been preselected for them, in a selected order, completely anathema. Younger audiences do not expect television to be a live product. They do not expect to go to the television guide to find what they want. In fact, audience analysis shows that, increasingly, when people turn the television on, the first thing they do is turn to an on-demand service like Netflix to browse what is there—that is their primary act, rather than going to a channel.

Whether it is easy to find the schedule and see what is being shown will be key to the debate on prominence. Otherwise, the PSBs will continue to find it hard to have a share of voice and be noticed in an environment where people are increasingly distracted by what they want to see. That experience itself is fractured, as a consequence of the way that on-demand services are designed. They are tailored to the user, so everyone will see a different screen when they turn them on. When everyone turns to Netflix, they see something different. They even see different tiles advertising the same programmes, tailored based on their past viewing habits. That is great for the consumer; it makes it much easier to navigate the services and find what they are looking for, but it makes it much harder for them to be challenged and surprised.

What is the value and role of original British content, telling unique stories of people on these islands? How easy will that be to find if people do not know to look for it and have not viewed it before? Those are the sorts of questions that Ofcom will have to consider. The Bill gives Ofcom the power to issue guidance, but it is important that here in this House we are on top of what Ofcom analyses and recommends, and that we feel that whatever the final wording of the Bill, it ensures that PSBs get a fair share of voice.

[Kirsty Blackman]

I did not even think about the TV schedule as something that people look at. I never look at a TV schedule. I do not know if my Fire Stick or my PlayStation has a TV schedule. On significant prominence, I was picturing the BBC iPlayer app being at the top of the apps list. Does the hon. Gentleman agree that Ofcom should look at both those things: how it appears on the screen and where the public service broadcasters are in any live schedule?

[Damian Collins]

The hon. Lady makes an important point. It should be easier to find through app stores. Although they are not directly in scope of the legislation because they are not broadcast formats in their own right, that question should be asked—is it easy to find? It should be easy to find on a connected device when it is turned on, and it should be easy to locate the apps.

Ofcom also has to consider whether the business model that underpins connected devices is fair to public service broadcasters. There is no doubt that the business model for Amazon and Google is to try to create a connected device space where all the entertainment exists and is tailored to each person. They also want to build the ad tech into that, so that they are the principal beneficiaries of the ad revenue, by monetising the placement of that content as well and diverting it away from broadcasters who have traditionally sold audiences to make money. That is the underlying problem that public service broadcasting faces today. The sale of audiences to generate advertising revenue to invest in programmes—the model that has fuelled independent public broadcasting for 50 years—is not broken, but it does not work in the way it used to; it is much more diffuse.

The revenue challenges that come from that are extremely real. That is why, on Channel 4, although I am pleased to see the Government’s changes to the remit, we need to keep a watching brief to see whether they go far enough. We have not gone as far as Channel 4 asked to go in its counter-offer to privatisation, which was the ability to go to the markets to raise money from private investors to create a programming fund that would invest £1 billion over two years in new programming. If we simply allow Channel 4 to acquire a stake in the making of programmes that it will broadcast, which will make revenue in the future, will that be enough now to meet the challenges that it will face? Given the ongoing pressures this year on declining ad revenue for TV broadcasting, we need to make sure that that will be enough. We should not assume that the measures in the Bill, which are welcome, will be the last word on that. There may be more challenges to come.

I would like to add two further points. It is right that we try to create more parity between the regulation of on-demand online services and broadcast television. If a viewer turns on their connected TV device, as far as they are concerned Netflix is as much television as the BBC, and there should be some parity in the way the platforms are regulated, the obligations they have to their users and the notifications they give about the suitability of the content. That should apply to advertising too. Often the debate we have is around advertising that targets children, but children are not watching live television; they are watching it on demand. The danger at the moment is that we have a highly regulated live broadcast television environment, but an almost completely unregulated online one. We should be far more worried about the ad rules that apply on YouTube than those on ITV, because that is where the children are. It is vital that the work on the Government’s online advertising review is completed at pace. The project has been worked on for a number of years. There needs to be proper enforceability of the advertising codes that have stood us in good stead in the broadcast world, but do not yet work in the same way online.

Finally, on media ownership and media freedom, which the Secretary of State mentioned in her opening remarks, we should give some consideration—maybe the Bill is not the right place—to the ownership of UK news companies and news assets, particularly if they are acquired by organisations based in jurisdictions overseas where maybe the regard for press freedom is not the same as it is in the UK. The Bill does not address that concern. If we have an ongoing concern about a vibrant news media landscape, there should be some concern about the companies that own media organisations—where they are based, what their interests are and what interest they have in the way the news is reported here. We do not want to see the press regulated in any way—we want to avoid that and in many ways the measures in the Bill are a nod to that as well—but we want certainty about safeguarding media freedom in the future.

[Andy Carter]

My hon. Friend makes a very interesting point about news media. What does he think about the ownership of public service broadcasters? Should there be legislation in place to consider who is allowed to own a public service broadcaster? For example, ITV could be bought and sold tomorrow on the stock exchange to somebody in a different country who has very different values and views on what content might be put out on ITV. Should that be in scope as well?

[Damian Collins]

My hon. Friend makes a very interesting point. Whether it be ITV or a newspaper such as The Daily Telegraph, which is currently up for sale, what is the motivation of someone acquiring them? We might assume they would not seek to censor what was going on, but would they have a different view on creative content, news, the stories they want to tell and what obligations exist for them? That is not something we have had to consider before, but in a market where such media assets are attractive to global investors, we should not be unconcerned about the motivations of investors who might buy those companies.

Media Bill (First sitting)

Damian Collins Excerpts

Committee stage
Tuesday 5th December 2023 Public Bill Committees

Lastly, as I said earlier, this proposal allows a breadth of provision—more hours and a greater diversity. A long time ago, I discussed the issue at length with a fellow academic from the United States, and it got quite heated—it was quite late at night, if you take my meaning, Mr Vickers. She eventually broke off the argument by saying, “You are saying that if there is trash to be had, it should be in Welsh as well as in English.” Well, I would not put it that way, of course, but we do now have provision that goes from game shows to sports, to drama and feature films, and that also includes erudite late-night discussions on the virtues of 14th-century Welsh poetry, if necessary. Reflecting on all of that, it can only be good for the hours for Gaelic provision to be increased and for that to be stated on the face of the Bill.

[Damian Collins (Folkestone and Hythe) (Con)]

I have actually watched “Hedd Wyn” on YouTube. What analysis has the hon. Gentleman made of the distribution of Welsh language products on other digital platforms, rather than just on S4C?

[Hywel Williams]

I thank the hon. Member for that point, and I will refer to it if I am lucky enough to be called to talk on the relevant provision later. Welsh programmes are available on all kinds of platforms, but a large number of Welsh-speaking people in England, for example, cannot see programmes in Welsh, because those are not available digitally to the extent I would want. As one would imagine, people have found a way around that, but for the language to prosper and thrive and for provision to be right across the available platforms, we must move forward, and I will speak to that later.

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[Sir John Whittingdale]

I start by agreeing with both Opposition spokesmen about the importance of supporting the production sector outside London and across every region and nation of the United Kingdom. The growth of the independent production sector outside London has been a phenomenal success in recent years, and we now have very strong companies in all parts of the UK. That is shown by the fact that since 2010, PSBs’ production spend allocated to programmes outside London has increased from 39% to over 50%, with ambitions to go even further. For instance, the recent publication of the BBC’s “Across the UK” strategy commits it to increasing the proportion of its own TV production budget outside London to 60% by 2027.

The amendment tabled by the hon. Member for Aberdeen North focuses on Scotland, where production spend is now worth over £266 million, supported by developments including the opening of a Channel 4 creative hub in Glasgow in 2019. As I say, the BBC’s “Across the UK” strategy includes commitments to expand its production studios within the city.

[Damian Collins]

Screen Scotland has pointed out that the total production spend last year on film and television and audiovisual content in Scotland was more than £600 million, which is a 55% increase on the 2019 figures, which shows a substantial increase in production in Scotland. Does the Minister agree that that is to be welcomed?

[Sir John Whittingdale]

My hon. Friend is absolutely right. It is not just the public service broadcasters that are committing to spending money on production in Scotland; it is right across the range of broadcasters. That exemplifies the strength of Scottish independent production. Indeed, similar figures can be quoted for Wales; it is not unique to Scotland. Every part of the UK is benefiting. Of course, Scotland has its own broadcasting company in the form of STV, which has a production arm, STV Studios, which has an ambition to become a world-class content producer for global networks and streaming services.

The success of the production sector in Scotland and across the UK has been supported and underpinned by a regulatory system. The importance of programmes being made outside London is in the new public service remit. In addition, all public service broadcasters, with the exception of S4C, are subject to regional programme-making quotas for spend and hours of production outside London. Channel 4 has its own out-of-England quota; the BBC also has a specific quota for content made in Scotland. Those quotas are set by Ofcom, which has the power to amend them, where appropriate. One example of the success of that regulatory system is the “Made outside London programme titles register”, published by Ofcom, which, in 2022, had 811 entries, including 543 from English regions outside London, 53 from Northern Ireland, 117 from Scotland and 72 from Wales. In each case, broadcasters are exceeding the production quotas quite comfortably. The Government will continue to support screen industries across the UK through a system of tax reliefs, investment in studio infrastructure and the UK global screen fund.

In line with the Government’s broader ambition to level up the UK, we want the production sector in all areas of the UK to continue to thrive, and we believe that PSBs play a very important role in our meeting that ambition. Returning to comments made by the hon. Member for Arfon, which I did not address earlier, S4C plays an extremely important part in that. I have not had the opportunity to visit production facilities in Scotland, but I have been to visit both BBC Wales in Cardiff and S4C, where I went on the set of “Pobol y Cwm”, and production in Wales is thriving. The position for S4C is slightly different from that for Scotland, in that there is, as the hon. Gentleman pointed out, a dedicated television channel for the Welsh language in the form of S4C. However, the Government are committed to supporting the production sector in all the nations of the UK.

I share the view of the hon. Member for Barnsley East that attempting to set quotas that are exactly in line with the population proportions would impose a constraint, which would be limiting and unnecessary. For that reason, I ask the hon. Member for Aberdeen North to withdraw her amendment.

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[Kirsty Blackman]

We covered a little of this in the last debate, in relation to access to terrestrial television services. As I said, there is still significant digital exclusion in our society when it comes to those who access television services and public service broadcasts through non-digital means.

It is possible to do what I do, which is to access television entirely through digital means—I have not had an aerial for a significant time. We moved into our house in 2016 and I am not aware that we have ever watched terrestrial television there, but we are lucky enough to have and be able to pay for a fast broadband connection and to live in a city where we can access one; we are not in any of the excluded and more vulnerable groups that find it more difficult to access television through on-demand means. A significant number of people can still access TV only through terrestrial services.

The amendments are about trying to pin the Minister down on what he means by “an overwhelming majority”. This is about looking at the numbers: is 98.5% of the population the kind of figure that the Minister was thinking about when he said “overwhelming majority”, or did he mean 60% or 70%? I am in debt to my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands), who, like me, has met Broadcast 2040+, which crafted these amendments. My hon. Friend is significantly more of a football fan than I am, and has specifically mentioned the fact that football viewing figures are higher for terrestrial TV than they are for subscription services. Removing access to terrestrial TV, which may happen at some point in the future and may need to happen at some point in the very distant future, will reduce the number of people able to access Scottish football. Therefore, in addition to the comments I was making about the educational provision available on television, I make the point that it is also important that there is the ability to view sport.

Yesterday in the Chamber, there was a ministerial update on the risk and resilience framework, which was published by the Government last year. Ministers have been at pains to state how much more transparency the framework enables than was the case previously. I appreciate the work that the Government are trying to do to update the national risk register, to ensure that it is as public as possible and that people are able to access this information. However, an incredibly important part of local resilience is being able to access up-to-date news, up-to-date and on-the-spot weather, and information when something significant happens.

I will give an example. Recently, there were significant floods in Brechin, which is just down the road from Aberdeen—although I am not sure that people in Brechin would want to be described in relation to Aberdeen; Brechin is a very lovely place in its own right and not just a neighbour of Aberdeen. People in Brechin saw really significant flooding, and a number of properties were evacuated. Without the ability to access information on what was happening through terrestrial TV or radio services, people would have been much less aware that the river was about to break its banks. If there is really significant wind—as there was, during the significant rain—accessing mobile phone masts, for example, is much more difficult. Terrestrial TV service masts, having been up for significantly longer, are significantly less likely to come down in the kinds of winds that we saw during Storm Arwen and Storm Babet, as weather events increase. In terms of resilience, it is important for people to be able to access that.

During the covid pandemic, people were glued to their television screens for updates about what was happening and the latest lockdown news. If some of our most vulnerable communities were struggling to access such content because, after the withdrawal of the terrestrial services, they did not have the broadband speeds necessary to watch television on demand, they would be less likely to be able to comply with and understand the law if another pandemic or national emergency happened.

It is important for the Government to know that they can reach the general population; that is how they could make the case for lockdown restrictions or ensure that people were aware of when the Queen sadly passed away last year. They can make those announcements and ensure people have the understanding and ability to know when significant national events have happened.

If people who are older, in poverty or otherwise digitally excluded are less likely to hear timeously about extreme weather or massive national events of incredible importance, then we further marginalise communities that are already struggling. As I said, I appreciate the Minister using the term “overwhelming majority” but I am just not confident enough that—

[Damian Collins]

The hon. Lady should recognise that such switchovers are possible only when the technology supports it, which is a question of changing the distribution mechanism at some point. That can lead to more choice.

Take the village in Kent where I live. When we had to do the switchover in 2012, the consequence of turning off the analogue signal and replacing it with a digital one was that we could get Channel 5, which people would otherwise not have been able to get at all. With the improvement in infrastructure, some people may see a significant improvement in services, but only where that infrastructure is ready.

[Kirsty Blackman]

I appreciate that and think it is important, but my point is about those who cannot get access and do not have the financial ability to do so. If we have a commitment to continue to provide terrestrial services and the legacy infrastructure, the providers of that infrastructure—the public service broadcasters—can continue to invest in it and not just say, “Well, the Government are going to allow us to turn it off in 2040 so there is no point in investing in it now. It has only got 17 years left to run, so we are just going to run the network down.” I am concerned that that may be the direction of travel.

Without a very clear commitment from the Government, I am worried that there will be a lack of investment in terrestrial services and that people will lose out. I would not want anybody to lose out on Channel 5 and I am very glad that people have access to it, but they need to have the choice. I would rather people had access to some public service broadcasting than none, which would be entirely possible if the digitally excluded could no longer access terrestrial TV services.

If the Minister made some really clear commitments today, that would be incredibly helpful. He may not be able to do that, in which case I may press some of the amendments. I will certainly be supporting the Labour party’s new clause. If the Minister cannot make more commitments, will he make clear the Government’s point of view about people likely to be excluded from taking part in a switchover, in relation to current investment in the network and investment to ensure that the network can last the next 15, 20, or 30 years? Would the Minister be happy to see that network diminish and for there to be a lack of investment so that services run down of their own accord or would he would prefer people to continue to be able to access them?

It would be great to have a little more clarity from the Government on the proposed direction of travel. I thank my hon. Friend the Member for Paisley and Renfrewshire North and also Broadcast 2040+ for all the work that they do to try to ensure that marginalised groups can continue to access public service broadcasting.

Media Bill (Second sitting)

Damian Collins Excerpts

Committee stage
Tuesday 5th December 2023 Public Bill Committees

[Damian Collins (Folkestone and Hythe) (Con)]

It strikes me that a lot of what the hon. Lady is talking about is relevant to the broadcasting code. It is Ofcom’s job to issue guidance in relation to the code and to take action if a broadcaster fails to meet its obligations. If Ofcom feels that a broadcaster has no intention of keeping within the remit of the code, it can withdraw its licence. That is the ultimate sanction, and one that Ofcom has already.

[Kirsty Blackman]

That is absolutely the case. However, on this section of the Bill, which is about enforcing the public sector remit—sorry, I keep saying “public sector” when I mean “public service”; I spent too much time in local government. It is about enforcing the public service remit and amending this section of the Communications Act. The shadow Minister has made the case to allow Ofcom the ability to step in with a lighter touch. We do not want Ofcom to have to take licences away. We want Ofcom to assess that, if things are not going in the right direction, it is better for everyone if it ensures the proper provision and that everybody has access to the public service broadcasting that we would expect. We want Ofcom to have that earlier opportunity to step in and say, “Guys, it’s time to make some changes before it gets to the point of being beyond repair.”

Media Bill (Third sitting)

Damian Collins Excerpts

Committee stage
Thursday 7th December 2023 Public Bill Committees

In summary, the designation process has been designed to ensure that regulation is targeted and proportionate, and that the framework can respond to new technologies and shifts in viewing habits.

[Damian Collins (Folkestone and Hythe) (Con)]

A lot of the existing regime, and also a lot of what is in the Bill, is based on the assumption that as many people as possible will seek to be designated as a public service broadcaster and will do everything they can to keep that designation. Is there not a danger now that if prominence is not effective enough, PSBs will simply decline to be PSBs, with all the obligations that being a PSB places on them, and just seek to make programmes that are popular and that will therefore be recommended and promoted on smart devices? Is my right hon. Friend confident that Ofcom will have the ability to issue guidance that distributors of programmes may need to increase the prominence of public broadcasting if they are not doing so already?

[Sir John Whittingdale]

My hon. Friend makes an interesting point, and I have sympathy with the concern he expresses. However, if this Bill was not passed, the advantages of being a public service broadcaster would be very small. All the PSBs have made it clear that they regard prominence as an essential benefit of the compact, in order that they are easily found and accessible. Because they have laid such stress on that, we assume that it is still their wish to remain designated as PSBs.

It is, of course, up to any PSB to walk away from the compact if they chose to do so. In doing so, they would no longer necessarily be able to benefit from prominence and the other advantages that come with PSB designation. However, I know that both my hon. Friend and I believe that there is a continuing need for public service broadcasting in this country. One of the purposes of the Bill is exactly to address the point he makes, by ensuring that PSB designation is still an attractive proposition for broadcasters to seek.

Let me return to one or two details of precisely how the system will operate. Once the necessary internet programme services and regulated television selection service providers have been designated, new sections 362AJ to 362AN introduce new rules to ensure the availability of public service content. That is achieved by requiring providers to offer their designated IPSs to RTSS providers and requiring RTSS providers to carry these designated services. After all, prominence would be redundant if the PSB services are not on the platform to begin with.

These availability requirements will be underpinned by statutory agreement objectives that providers of designated IPSs and RTSSs must act consistently with when reaching an agreement on the availability and prominence of designated services and when keeping that agreement in force. These include that the arrangements support the sustainability of public service broadcasting and do not disproportionately restrict how the platform may innovate its service. The intention behind these agreement objectives is for Parliament to provide expectations for the outcome of negotiations between designated IPS providers and RTSS providers. These objectives are to be supplemented by more detailed Ofcom guidance on how providers may act consistently with them.

In that respect, let me address the point made by the hon. Member for Barnsley East in her amendment 29. Proposed new section 362AL requires Ofcom to

“prepare…guidance about how providers of designated internet programme services and providers of regulated television selection services may act consistently with the agreement objectives”

when negotiating on the carriage and prominence of designated services and after an agreement has been reached. The Government absolutely recognise that Ofcom’s guidance should take into account the BBC’s equivalent duties under the framework agreement, as also reflected in its relevant strategies and policies under the agreement, including clause 62. However, I can tell the hon. Lady that proposed new section 362AL(2) already provides for such considerations by Ofcom by referring to

“any duty of the BBC under the BBC Charter and Agreement that is comparable to the duty of providers of designated internet programme services other than the BBC”.

This may be a good opportunity to expand on another point. By convention, the BBC is not regulated in statute. It is the Government’s intention for the new prominence framework to apply to the BBC through the framework agreement. We plan to work at pace with the BBC to make corresponding changes to the its framework agreement to ensure that the relevant parts of the prominence regime apply to the BBC, while also acknowledging how it legally functions. It is the Government’s view that there is already provision in the Bill for Ofcom to consider the BBC’s comparable duties and corresponding policies under its framework agreement in its guidance on the agreement objectives. It is for that reason that I am unable to accept the amendment of the hon. Member for Barnsley East.

Overall, we think the principles-based approach that we are taking, with Ofcom playing a vital role, is the correct one. It will give Ofcom the tools it needs to ensure that the regime is functioning effectively without being too inflexible or overly prescriptive. Once designated services are available on the platform in question, new sections 362A0 to 362AR introduce specific duties on providers of RTSSs, including the requirement to carry and display designated IPSs with an appropriate degree of prominence. That includes the requirement to carry and give regional prominence to designated S4C services in Wales and STV services in relevant parts of Scotland.

[Sir John Whittingdale]

I am happy to address that point. The hon. Lady also raised the subject, which was debated on Second Reading and in the Select Committee, of whether the requirement for “appropriate prominence” is a better description than “significant prominence”. That is something we looked at carefully, particularly as it was one of the Select Committee’s recommendations, but we feel that it is important that the approach to regulation should be proportionate and allow for flexibility and operability across different RTSSs. We believe that an appropriate level of prominence, as determined by Ofcom in the code of practice, provides that flexibility and enables Ofcom to implement the regime in a practical way.

[Damian Collins]

Does the Minister agree that, given the nature of new smart devices, which favour personalisation of content and recommendations to users, smaller regional broadcasters, such as S4C, may benefit significantly, because viewers who have a habit of watching programming in the Welsh language are far more likely to be recommended that programming in the future?

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[Kirsty Blackman (Aberdeen North) (SNP)]

I agree with the Minister that the clause creates a new and bespoke prominence regime. I have some questions that I was going to ask in interventions, but I figured that I had too many.

I am happy to support the amendments tabled by the shadow Minister relating to the BBC and affirmative approval by the House, but I have some questions arising from the comments that have been made. The comment about personalisation is key. I hope that people who regularly watch S4C, for example, will be offered it. I am slightly concerned that that will conflict with the commercial nature of these devices, and that we will end up in a situation whereby Amazon provides more money to give prominence to a certain television show, which bumps S4C down the list. I am glad that there is flexibility in the Bill to allow things to be updated and changes to be made, because it is important that such conflicts are resolved.

[Damian Collins]

What may resolve that conflict is the fact that personalisation is often linked to the placement of advertising, so the platform operator may only care about advertising reaching eyeballs and may be agnostic about whether it is placed against S4C content or anyone else’s.

[Kirsty Blackman]

That is possibly the case. I have never been a platform managing its budget on the basis of advertising, so I do not know exactly how the advertising regime works. As time goes on and the way that people interact with these services changes, that may be updated anyway, provided that there is the flexibility to make changes if we find that people are not being served the content that we expect, and are not receiving that level of prominence of the services. It would be great if the new regime works and people are algorithmically served the content that they like and want to see, but I am concerned that it might not always work out like that. It would therefore be incredibly helpful if the Minister can keep that under review.

On the comments about the words “significant” and “appropriate”, I completely understand the BBC’s concerns. I know that not everybody feels quite so strongly about those words. Some people believe that Ofcom will be clear that “appropriate” means “fairly significant” and “quite prominent”, so that people are able to access these broadcasters. Again, the Government need to keep that under review to ensure that there is an appropriate level of prominence, and that Ofcom has the ability and strength to say, “This is not appropriate. We need it to be more prominent than it currently is.” Ofcom must have the teeth to enforce that. It should first work with the platforms to ensure prominence—we do not want to move straight to enforcement—so that people can access the public service broadcasters that they expect.

The comments made about television remote controls were also key, and we might come back to them later in relation to radio selection. Hardware is an issue as well as software. For example, a television remote control may allow people to press a Netflix button but not a BBC button, despite the fact that significant proportions of people would prefer to press a button to access the BBC, STV or whatever service they are keen to get, and that they generally go to for information. I have spoken already about the importance of accessibility. Public service broadcasters need to be accessible, and we must work with people to make PSBs as accessible as possible, and prominent; those are two separate but related things.

Local content and local news content are very important. Yesterday, I had a discussion with the BBC, which now provides Aberdeen and Aberdeenshire local bulletins on some of its on-demand services, after a long-running campaign by the hon. Member for West Aberdeenshire and Kincardine (Andrew Bowie) and me. We have both been constantly pestering the BBC to ensure that our local news bulletins are accessible, particularly so that we can see what is being reported in our local area when we are down here. The BBC has now done that, but I would like commensurate prominence for online and on-demand television services, as well as services on my phone or computer.

On a related note, the Minister talked about the measures applying only to devices that have the main purpose of allowing people to watch television, and I can understand why he has gone down that route. I do not know whether he is aware of Ofcom’s “Media nations” report, which shows that 21% of TV users in Scotland watch through a games console. That is not an insignificant proportion. Some family members may use the games console to game, but others may use it only to watch television. If games consoles are outside the regulatory regime and are not required to give any prominence to public service broadcasters, a chunk of the population is not being properly served and does not have proper access to public service broadcasters.

I appreciate the Minister’s comment about Ofcom being able to update and make changes to the regulated services and providers. However, I am slightly concerned that he has gone too far down the route of saying that the measures apply to devices that are mainly used for television purposes. I am concerned that that will not provide my constituents with the best service, particularly when the percentage of people in Scotland who use games consoles to watch television is double that in England. The proportion is much higher, so this issue will be important. For example, if someone can watch television on a PlayStation, why would they waste money on a Fire Stick? They can already watch television through the games console. If that is the main route by which a not insignificant portion of people watch television, it is important that the Minister considers whether regulating games consoles would improve our constituents’ lives. I genuinely think it would. My concern is mostly that the Minister should not rule it out; I do not necessarily want him to say that he will definitely regulate things such as games consoles.

My other question, which the Minister may not be able to answer today, is about the prominence requirements for smart TV provision. If I say to my Fire TV Cube, “Alexa, play BBC News on BBC iPlayer,” I would expect it to do that. Provisions we come to later relate to asking a smart speaker to play something on a certain provider. That is about not just prominence on screen, but prominence when I use my voice to make a request of my Fire Cube. I hope and expect that Ofcom and the Government intend that I will get BBC News on BBC iPlayer, if that is what I ask my smart TV for. This is about not just navigating the system, but being able to make a request by voice.

--- Later in debate ---

[Sir John Whittingdale]

I am most grateful to hon. Members for raising a number of interesting questions. The general answer to them is that these matters need to be considered by Ofcom when it draws up the details. However, I can seek to address one or two of the points made. On the continuing discussion about “appropriate” versus “significant”, I will try not to repeat our maxim that “significant” may be appropriate, but “appropriate” does not necessarily always mean significant—hopefully I got that right. For instance, there is the issue around S4C. Obviously, if someone lives in Wales, then S4C prominence is appropriate. If someone lives in Chelmsford and is learning Welsh, then perhaps it might become appropriate, as the hon. Member for Arfon set out.

My hon. Friend the Member for Torbay made a point about algorithms, and basing prominence on behaviour as well as geolocation. If someone regularly turns to, and finds, S4C, it is an indication that they are interested in Welsh language television. That might well be taken into account in the prominence regime, but that is a matter for Ofcom. The technology may not yet have reached that point, but I entirely take my hon. Friend’s point that geolocation does not necessarily deliver sufficient prominence for each individual viewer.

On the question that the hon. Member for Aberdeen North asked about PSB buttons on remote controls, she is right that one or two of the streaming services pay to have their own button. My remote control has a Netflix button. I think it would be quite difficult to have a PSB button, because PSB obviously covers quite a wide range of broadcasters. It would not be right to say, “You’ve got to have a BBC button”; in a sense, the whole of the point of the legislation is to ensure that we do not need to do that. The prominence regime is designed not to force people to watch PSBs, but just to make them easily findable, so that when someone turns on their television, the first thing they see is the range of PSB channels as suggestions. If that is delivered, we do not necessarily need a button. Netflix presumably paid to have a button because it does not automatically pop up when someone turns on their television, but it will only be pressed by those who choose to watch Netflix. I do not think a button is necessary.

The hon. Lady also raised the interesting question of television-like devices. My children had an Xbox, and because it was constantly plugged in, we used it to access TV, rather than having to remove all the wires. She is absolutely right that in some families, the games console may well be frequently used to access television. That too is something that Ofcom will need to take into account. She asks that I make it clear that it is not ruled out, and I am happy to do that. We have asked Ofcome to look into those issues and draw up what is appropriate. It came as something of a surprise to me to read in my guidance notes that people can watch television on their refrigerator in some cases. I am not necessarily suggesting that it would be appropriate to give the BBC prominence on a refrigerator. All those things are matters that Ofcom will need to consider.

[Damian Collins]

Does my right hon. Friend agree that a distinction needs to be drawn between internet-connected devices—through which BBC iPlayer or the ITV hub or whatever it is can be accessed—and a smart television, which displays multiple different TV providers in the same place? On the latter, the user is not necessarily going to a separate place on the internet to watch something; they are going to one place, where these things are held together. It is in that environment that we want to ensure that the public broadcasters have due prominence.

[Sir John Whittingdale]

My hon. Friend is absolutely right. More and more devices have screens, but they are not necessarily primarily or even occasionally used for watching television, so it would be completely wrong to include them within scope. However, there will be a variety of possible devices for watching TV, and Ofcom will need to look at that.

Media Bill (Sixth sitting)

Damian Collins Excerpts

Committee stage
Tuesday 12th December 2023 Public Bill Committees

[Damian Collins (Folkestone and Hythe) (Con)]

Following my hon. Friend’s speech, I want to speak briefly on the issue, in which I have taken an interest over many years. The Minister is nodding and he will remember that I served as a member of the Committee he chaired in 2011 looking at the phone hacking issue and the inquiry that was held at that time. Twelve years or more have passed since then, and the media landscape now is very different.

I agree with my hon. Friend the Member for Aylesbury that having a statutory regulator for the press is not compatible with our media traditions in this country. The threat of commencing section 40, with newspapers having to pay their own costs and those of the claimant even if they won the case—such a provision does not exist elsewhere in English law—would impose an onerous burden, yet the threat of commencement has not forced newspapers to seek to create or go into regulatory bodies for the press. The debates we have here on statutory regulation of the media and the debates we continually have when BBC charter renewal comes up show that whenever we create a structure, no matter how arm’s length or benign, Members of this House have points of view about how it is operated, what goes in it and how it should change or be improved. That will continue to be the case. A statutory regulator is not compatible with having a free press.

When we had the Leveson inquiry, the idea of newspapers’ business models being hollowed out by big tech platforms that would destroy their ad-funded business model was not something we considered. Newspapers were then seen as being all-powerful, extremely wealthy and well able to pay whatever charges were levelled at them. The situation is very different now.

The other issue, which I am familiar with as a former chair of the APPG on media freedom, is the issue of lawfare, whereby wealthy people, particularly oligarchs, take spurious legal action against newspapers because of content they do not like, without worrying about whether the case meets any kind of threshold. The libel laws are not absolute; they are not an absolute true-or-false test. To win, the claimant has to demonstrate that what a journalist reported has materially damaged them and their reputation, but very wealthy people do not care about that. They are quite happy to enter into such legal cases now, and even the threat of such actions deters editors from publishing stories that might be in the public interest, for fear of the almost certain legal challenge that will come back against them from people with bottomless pits of money who do not care whether they win or lose. They just seek to grind the publication into the ground with ongoing legal costs.

Commencing a regime that may open the door to yet more litigation from people who, on the whole, can easily afford it anyway, which makes the chances of success greater and which makes the cumulative impact of the costs on those publications even greater, would diminish the power of the press considerably. That would lead to a chilling effect, which was never envisaged when the Leveson report was commissioned, of inhibiting the press for fear of the cost that would come from simply doing their job and reporting the truth.

Of course, the press make mistakes and get things wrong. Newspaper editors have legal liabilities for what they publish. Members of the Committee know from our lengthy debates on measures such as the Online Safety Act 2023 that it is easy now for people to publish all sorts of stuff for which they have no legal liability—and, before the Act was passed, nor did the platforms that pursued it. The challenge that many people face, be they in the public eye or members of the community, is far more likely to be harassment and intimidation through co-ordinated attacks on social media than reporting a newspaper they do not like.

[Kirsty Blackman]

Does the hon. Gentleman not understand that the online world is now regulated differently from newspapers as a result of the Online Safety Act? I agree with the Online Safety Act and agree that there should be more regulation online of things that are illegal, but we do not have a change in the regulation of newspapers to ensure truthfulness and lack of harm, whereas we do have some more of that in the online world.

[Damian Collins]

That is why it was important that there is an exemption for media organisations from the regulatory powers that Ofcom will have through the Online Safety Act. The reason those exemptions were there was that newspapers already have liability for not only the copy printed, but the adverts they accept and run. The newspaper or magazine editor is legally liable for advertising as much as they are for the articles they commission. Those liabilities and that transparency just did not exist for a lot of online publications, and it could be difficult to see who was behind it.

The challenge with the Online Safety Act was to recognise that the platforms were acting as distributors and promoters of the content—even for a lot of the content that is spam-related or comes from misinformation networks and hostile foreign states. If companies like Facebook are actively promoting that content and highlighting its existence to its users, they should have a liability for it. Newspapers and magazines already had those liabilities because it was clear who was publishing them. In the Online Safety Act, to qualify for the media exemption, it has to be clear who they are, where they are based and who the editor is, and therefore the transparency, liability and risks exist already. They did not in the online world, where many of the publishers were hidden and used that anonymity to spread lies and disinformation.

With that, the onerous costs that lawfare brings to newspapers, and the hollowing out of their business model by the ad platforms that distribute their content for nothing, there is an urgent need to have some sort of compensation mechanism for news organisations, so that local newspapers, national newspapers and magazines get fair compensation for the free distribution of their content across the web. Those are the challenges we face now, and those were things that were never envisaged at the time of Leveson.

As the hon. Member for Aberdeen North has said many times in the debate, things move pretty fast between media Bills. This is another example of how things have moved fast again. This amendment to the law and removing section 40 from the statute books reflects the need for us to change the law to reflect the media world that exists today.

[Stephanie Peacock]

When Leveson produced his report over 10 years ago, he attempted to strike a careful balance between two important competing objectives: enforcing press standards and protecting the free press. As such, although the inquiry paved the way for the existence of an approved press regulator, it was decided that membership in such a regulator would be voluntary rather than mandatory for news publishers, with incentives put in place to encourage active take-up of membership. One of the major incentives to encourage membership was introduced in the form of section 40. Where papers had not signed up to an approved regulator, they would be vulnerable to paying their legal opponents’ costs where the judge considered it reasonable to do so, even if they were to win the wider case. If they were signed up to a recognised regulator, however, they would be protected from that.

Despite being introduced in the Crime and Courts Act 2013, section 40 has never been commenced and would be repealed by clause 50. We appreciate that section 40 is not a particularly well-drafted piece of legislation. Representatives from and of the press, including the NMA, have long argued that it is morally wrong to attempt to persuade them to sign up to external regulation on the basis that they would have to pay the legal fees of both sides, even when they had won the case. They say if the section was commenced, it would prove financially ruinous to them as on principle they would never sign up to such a regulator.

With over a decade passed, the media landscape has changed significantly since the Leveson report was published, as we have discussed. Almost every major press news outlet has introduced some form of regulation, whether individually or through the Independent Press Standards Organisation, which was not anticipated when the law was drafted. Publishers face significant new challenges that threaten the ability of the industry to carry out its vital work, from inflation and falls in advertising revenue to the rise of social media and the ability to share disinformation more easily online.

Amendment 41, tabled by the hon. Member for Aberdeen North, acknowledges what we will do when section 40 is repealed. It remains important that we have a press that is accountable for its reporting and meets the highest ethical and journalistic standards, but given the poor drafting of section 40 and the fundamental imbalance of costs, I believe that those questions are best answered outside the matter of repeal itself. On that basis, I will not stand in the way of this Bill as a result of the Government’s decision to repeal section 40.