Now that the Media Act 2024 has received Royal Assent (on 24 May 2024) and we have the final version of the Act, the real work can begin. The first of many commencement orders has triggered the coming into force of the first suite of provisions on 23 August 2024, allowing Ofcom (the regulator in charge of implementing the Media Act) to get on with a number of tasks (see further below).  Ofcom has also already issued a call for evidence with a view to informing key decisions that Ofcom has responsibility for in respect to the revised listed events regime. That’s what we’ll focus on here.

The listed events regime – what’s it all about?

The listed events regime is designed to ensure that events of ‘national interest’ in the UK (such as the Olympic Games, FIFA World Cup, FA Cup Final, the Grand National, and the Wimbledon finals) are available to be seen on a free-to-air basis by the vast majority of the population. It’s why the Olympic Games remain on the BBC, shown in parallel to the (now more comprehensive) Discovery/Eurosport coverage (Discovery having acquired the rights several years ago). 

The list of events itself is drawn up by the Secretary of State and classifies events into two groups – “Group A” (the premier category of events) currently includes things like the Olympic Games and the World Cup, and “Group B” includes things like the Ryder Cup and the Cricket World Cup.

The position now (before the Media Act amendments are implemented)

Under current rules, the listed events regime prohibits the exclusive broadcast of a listed event without prior consent from Ofcom and ensures the availability of the rights to live coverage of listed events to free to air broadcasters who meet certain criteria. Broadcast channels which are received by 95% of the UK population and which are free to air are categorised as "qualifying services".

What’s changed?

The Media Act 2024 shakes up the listed events regime considerably.  It does away with the “qualifying services” classification described above and instead distinguishes between two broad categories of services:

1. the Public Service Broadcaster (PSB) broadcast channels (i.e. BBC 1 & 2, Channel 3, Channel 4 and Channel 5) and their internet services, such as iPlayer (subject to certain criteria on reach and free access etc) (“Category 1 Services”); and 
2. all other “relevant services” which is a very wide, sweeping list of broadcast channels and internet services encompassing everything from Sky, to on-demand platforms like Netflix, to other streaming platforms (“Category 2 Services”). In each case these Category 2 Services will be ‘relevant services’, provided that they are accessible in the UK, have someone responsible for the selection of programmes to be shown, and have their principal purpose as the provision of programmes. 

The rules are complex, but to try to summarise the most likely scenarios in practice:

• if the main live rights to a Group A listed event have been acquired by a Category 2 Service they must also be shown live on Category 1 Services unless Ofcom consents otherwise (or, in the case of multisport events, provided “adequate” additional coverage is shown live on broadcast (rather than internet) Category 1 Services); and
• if the main live rights to a Group B listed event have been acquired by a Category 2 Service (unless Ofcom consents otherwise) there must also be “adequate alternative coverage” shown on a different service (but not necessarily a Category 1 Service), and subject to certain requirements (which are to be defined by regulations to be issued by Ofcom). While these requirements are not yet known, there is no reference to the additional alternative coverage having to be live. We might expect that the requirements will, however, include that the coverage includes a timely and substantive highlights package which is available free to air, and easily accessible by the vast majority of the UK population.

Note that these changes will come into force on a date to be prescribed by the Secretary of State.

Call for evidence

In the meantime, part of the ‘real work’ Ofcom must now get on with is to define certain key terms used in the listed events legislation, including what will be considered “live coverage”, “adequate additional coverage” and “adequate alternative coverage”. Ofcom’s call for evidence, published on 18 July 2024, seeks input from relevant parties on the impact of changes in viewing preferences, technology, and the media landscape on listed events, as well as how rights for listed events are packaged and sold. This input will inform how Ofcom defines these terms and the contents of the updated Listed Events “Code” that it is required to produce under the Act. While these terms are defined in Ofcom’s existing Code on listed events, given the changes in the regime and in viewing preferences and technologies, it seems likely that there will be significant changes required.

What impact will the changes to the listed events regime have?

There has been some debate about the impact of these new provisions on rightsholders but Ofcom is remaining positive, reiterating that the Act “aims to ensure that rights to live coverage of listed events are offered to PSBs, as well as to other services ... The Media Act also broadens the scope of the regime so that a range of new providers, including streaming services, will in future be subject to the rules”. 

There is some scepticism around whether the changes will mean that some listed events could end up less readily available, with the main live coverage of major events being shown on expensive services, and with the mandatory free to air coverage being buried on less discoverable streaming platforms. Market forces and the demand from the public for these events of “national interest” should, however, counter this. Further, given the changing habits of younger generations, with fewer people turning to traditional broadcast channels for content, the changes would seem to be reflecting, and accommodating, reality. The recent announcement that the Paralympic Games will be shown live in many countries on YouTube is a good illustration of rightsholders already recognising this.

Responses to this call for evidence are due by 5pm on 26 September 2024. 

In other news…

While the Media Act 2024 is now in force, many of its provisions require commencement orders to trigger them coming into effect. On Wednesday 21 August, the first commencement regulation relating to the Act was laid before Parliament, setting out those provisions in the Act which come into force on 23 August 2024. According to Ofcom, this commencement order will allow it to:

• “Prepare for our new duties for video-on-demand services including reviewing their audience protection measures.
• Further develop our approach for new measures on how PSBs will show how they deliver to the updated and modernised public service remit across their services.
• Prepare for our new duties for voice-activated platforms, including determining the principles and methods we will apply in making a recommendation to the Secretary of State about which platforms are included.
• Continue to develop the processes for designating the services which will be in scope for the new rules to ensure online PSB services are both available on popular TV platforms and capable of being easily found and discovered by audiences.”

In addition, Ofcom has said it will launch a ‘Media Act Implementation Hub’ which will provide updates about Ofcom’s work on the Act. We look forward to seeing this and tracking Ofcom’s progress on all of the above.

If you’d like more information about the Media Act 2024, you might want to take a look at our recent article summarising some of the other key provisions. Alternatively, please do get in touch if you’d like more detailed advice from one of our experts.