The Future of TV Broadcast and VOD Licensing in the UK after Brexit – What’s the Deal?

On 13 September 2018, the UK Government published its long-awaited Technical Notice on the potential implications of a no-deal Brexit for the UK television broadcasting industry, entitled ‘Broadcasting and video demand if there’s no Brexit deal’.

As expected, this Notice confirmed that after March 2019, if there’s a no-deal Brexit, the Audiovisual Media Services Directive (AVMSD) and, consequently, the ‘country of origin’ principle established under the AVMSD, will no longer apply to audiovisual media services established under the jurisdiction of the UK. In this article, we discuss the 'country of origin' principle in further detail, as well as the ways in which a broadcaster might establish itself in another Member State under the AVMSD in the wake of Brexit.

Country of origin principle explained

The ‘country of origin’ principle, established under the AVMSD, provides that once an audiovisual media service is established under the jurisdiction of one EU Member State (its ‘host country’), it can transmit its services to all other Member States, so long as it complies with the rules of its host country, without having to comply with any further broadcast regulations or restrictions of other Member States.

The effect of Brexit on the country of origin principle

At present, over 400 international TV channels are licensed in the UK (under Ofcom) but broadcast to other EU Member States, relying on the country of origin principle to broadcast into other EU Member States. After Brexit, as confirmed by the UK Government’s Technical Notice, these channels can no longer broadcast into EU Member States unless they comply with the regulatory regimes of each individual Member State into which their services are transmitted. Given the inevitable divergences in regulatory regimes across Member States (particularly with regard to advertising to children, alcohol advertising and product placement), this is likely to be impracticable for the majority of broadcasters.

In addition to the AVMSD, the UK is a signatory to the Council or Europe Convention on Transfrontier Television (ECTT), which has been signed and ratified by 20 EU countries, namely Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Hungary, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia, Slovenia and Spain. The ECTT requires parties to the ECTT to permit freedom of transmission of each other’s services. The UK Government’s Technical Notice recognises that Brexit will not affect the UK’s membership to the ECTT. However, the ECTT is likely to be of limited use to services who wish to retransmit to Member States who are not signatories to the ECTT. In addition, the UK government warns audiovisual media service providers seeking to rely on the ECTT for distribution of a service that the ECTT does not have the same enforcement mechanisms as the AVMSD.

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