Media Act 2024: Ofcom releases the “Tier 1” Standards Code and Accessibility Code
Last week, Ofcom released two long-anticipated consultations in connection with its implementation of Part 4 of the Media Act 2024 relating to on-demand programme services. The first consultation sets out Ofcom’s proposed Tier 1 Standards Code, whilst the second covers its proposed Tier 1 Accessibility Code (the “Codes”).
Why these Codes, and why now?
Historically, video-on-demand (“VOD”) services in the UK have been required to comply with the statutory “on demand programme service” (“ODPS”) rules, which (at a high level) apply to VOD services headquartered in the UK that make programmes available on demand. The rules that apply to ODPS providers are less comprehensive than those that apply to traditional linear television channels under the Broadcasting Code, despite the fact that VOD consumption in the UK has been steadily increasing for years.
Part 4 of the Media Act 2024 seeks to bridge this gap with a new set of rules designed to level the playing field between VOD and linear channels. These regulations will apply to commercial public service broadcaster (“PSB”) on-demand services (BBC services remain regulated under the BBC Charter and Agreement) and to VOD services with more than 500,000 average monthly users in the UK (so-called “Tier 1” services).
Crucially, Tier 1 services can include VOD services headquartered outside the UK, which marks a significant shift in Ofcom’s remit. The UK Government estimates that Tier 1 services will include more than twenty of the most popular services used by UK audiences, including Netflix and Disney+.
The Tier 1 Standards Code: What you need to know
Ofcom’s Tier 1 Standards Code closely tracks the Broadcasting Code, following the same basic structure and section numbering. However, Ofcom has also adapted the Broadcasting Code to the VOD era, by either removing rules that don’t apply to an on-demand world (e.g., the watershed rules) or by adapting rules that were originally designed for a linear world.
Rather than duplicating existing ODPS rules (with which Tier 1 services will also need to comply), Ofcom has cross-referred to these rules in the Tier 1 Standards Code where relevant. In practice, this means that Tier 1 services will need to look at both sets of rules to determine what applies to them; whilst this may not represent a big lift for existing ODPS providers, non-UK Tier 1 services who will be newly caught by the UK regulatory regime may find this inconvenient.
As with the Broadcasting Code, the key obligations on Tier 1 services under the Tier 1 Standards Code include the protection of under-18s (including using tools such as parental controls and content warnings – although Ofcom does not mandate any particular system of audience protection measures); the protection of viewers from harmful content; and due accuracy and impartiality in news reporting. This was largely as expected, but there are some key points to draw out from Ofcom’s consultation:
- There is no recognition that both broadcast television and Tier 1 services exist in a wider marketplace where content subject to much less stringent levels of regulation is widely available to the general public, often on the same connected TVs, mobiles and tablets. The fact that Ofcom is seeking to “level up” the regulation of Tier 1 services to the level of legacy broadcast media, rather than “levelling down” the existing regulatory framework to reflect the modern marketplace, is considered to be the wrong approach by some. In recognition of this, Ofcom has separately kicked off a wider regulatory review. However, in the meantime, Tier 1 services will be required to assess their production and acquisition activities - as well as their back catalogues - to ensure compliance with the new rules.
- The new rules on due impartiality for news content probably represent one of the more significant changes for non-UK VOD services, although Ofcom points out that news content is not (currently) that prevalent on Tier 1 services.
- Certain rules in the Tier 1 Standards Code apply to programmes regardless of whether the providers of the Tier 1 services themselves were involved in the making of the programmes (e.g., programme acquisitions). In particular, the proposed practices in Sections Seven (Fairness) and Eight (Privacy) of the Tier 1 Standards Code refer to actions that can be taken during the production process to avoid unjust unfair treatment or unwarranted infringement of privacy. Ofcom’s position is that, even if Tier 1 service providers are not themselves involved in the production process, they will still be responsible for ensuring that programmes included in their services comply with the Tier 1 Standards Code. Whilst this reflects the same principle as applies to linear broadcasters under the Broadcasting Code, this could prove tricky for Tier 1 services headquartered outside the UK who acquire content on a global scale.
- The Tier 1 Standards Code contains no equivalent of the Broadcasting Code Sections Nine and Ten on sponsorship and product placement, on the basis that these are dealt with under the ODPS rules (ODPS advertising is subject to a co-regulatory regime with the Advertising Standards Authority).
- As well as the content of the Tier 1 Standards Code itself, Ofcom is also seeking views on whether a more streamlined investigatory approach with regard to certain breaches of the Code might be sensible (noting that breaches may well occur due to content protection measures not being appropriately applied, rather than because of issues with the content itself), with the standard broadcast investigatory process being reserved for serious and repeated breaches. For fairness and privacy complaints, Ofcom’s statutory remit is slightly different, and so it is not proposing a more agile investigatory approach for those either. Ofcom intends to publish (yet another) consultation on its draft procedures ahead of the Tier 1 Standards Code coming into force.
- Ofcom intends to publish a number of guidance documents explaining how Tier 1 services will be expected to comply with the Tier 1 Standards Code, including in respect of fairness and privacy and impartiality rules. Whilst this will hopefully provide more clarity to Tier 1 services on how they can comply with the Code in the future, it also means that a lot of the detail (of the kind that would be useful for Tier 1 services to consider now, during the consultation process) is currently still up in the air.
The Tier 1 Accessibility Code: Key points
The Tier 1 Accessibility Code contains quotas for subtitling, audio description and signing, which will apply to all programmes included in Tier 1 services, excluding advertising, and to every Tier 1 service (and BBC iPlayer) regardless of the means of delivery. There are no programmes that are excluded from the minimum quota requirement; quotas should be met on each delivery platform where the programme is available, and should not be calculated as an average across all delivery platforms. As well as quantitative obligations, the Code stipulates that Tier 1 providers must ensure that their access services are of sufficiently high quality.
The quotas become applicable in full from the fourth anniversary of the “relevant date” (i.e., either the day of publication of the first Tier 1 Accessibility Code or the day on which an ODPS became a Tier 1 service, whichever is later). Interestingly, Ofcom has also exercised its discretion to introduce an interim quotas regime, which will apply from the first and third anniversaries of the relevant date. The purpose of the interim regime is to ensure that disabled audiences benefit from access services as soon as possible, rather than having to wait until the statutory quota dates, as well as to create a smoother, more gradual compliance profile. The new quota regime is set out below:
| Anniversary of relevant date | Subtitling | Audio Description | Signing |
|---|---|---|---|
| First (interim) | 20% | 2.5% | 1.5% |
| Second (statutory) | 40% | 5% | 2.5% |
| Third (interim) | 60% | 7.5% | 4% |
| Fourth onwards (statutory) | 80% (BBC: 90%) | 10% | 5% |
Ofcom will assess compliance on a case-by-case basis, and Tier 1 services will be subject to annual reporting obligations to this effect. Tier 1 providers may apply to Ofcom to be considered for a full or partial exemption to the quotas, which may result in alternative requirements being applied. Exemptions are more likely to be considered where turnover is less than £250 million and can be based on a number of factors, including benefit to audiences, size (although audience size alone is not grounds for exemption), location, technical difficulty and cost.
As with the Tier 1 Standards Code, Ofcom’s proposed regime is largely as expected. However, it is worth noting the following:
- Content quotas for Tier 1 services have been calculated as a percentage of all unique catalogue hours available at any point during a given year, including content being made available for only part of a year. For VOD services, where content is constantly being refreshed, added or removed from the relevant services, calculating the required quota percentages is likely to be much more complex than for linear services with fixed broadcast schedules.
- Under the traditional linear regime, certain genres could be excluded from the quotas regime. However, as noted above, Ofcom proposes no genre exclusions for Tier 1 services. This means that, for services with large proportions of content that do not readily lend themselves to access services (e.g. live sports programming), meeting the quotas might require more creative solutions or individual exemption requests.
- Under the traditional broadcast rules, smaller channels could substitute a financial contribution to a third-party sign-presented content provider (e.g. Lumo TV) in lieu of meeting the 5% signing quota directly. Tier 1 services have no equivalent automatic alternative arrangement (although this isn’t necessarily surprising, given that Tier 1 services are, by definition, some of the largest in the UK). Equally, the broadcast regime also automatically exempts smaller channels using audience share data. By contrast, the Tier 1 regime requires providers to proactively request an exemption, supported by detailed evidence. Again, this is not necessary surprising, but it does have the potential to impose an additional administrative and evidentiary burden on Tier 1 services.
Next steps
Ofcom is consulting on both the Tier 1 Standards Code and Accessibility Code, with responses due by 7 August 2026. Ofcom plans to publish the final versions of the Tier 1 Standards Code and guidance in late 2026 and it will come into force 12 months after final publication.
On-demand service providers who are (or may be) caught by the Tier 1 services regime should take this opportunity to consider whether and how they would like to respond to Ofcom’s consultations – and non-UK services likely to be caught under the Tier 1 regime should start considering what processes they will need to implement to be able to comply with these regulations.
