UK: Implications Of Brexit On The UK's AV Sector

Last Updated: 3 December 2017
Article by Paul Herbert

Whilst there is a large amount of uncertainty surrounding Brexit, it is possible to look at some of the more obvious implications of Brexit for the Audiovisual ("AV") sector. We also look at current EU developments which are to be implemented in the near future and which we may therefore by missing out on.

What does EU Membership give our AV sector?

Freedom of Movement

A key principle of EU law is that workers can come and work in the UK without the need for visas or work permits. The UK is an attractive and successful creative hub, and draws on the best talent from around the world, especially the EU. It is estimated that there are around 2.4 million EU citizens working in the UK, with around 10-20% of the UK's AV workforce made up by EU citizens. It is unknown what will happen to EU citizens working in the UK post-Brexit, and companies are already experiencing difficulties recruiting EU workers and reassuring their existing EU staff. There has been talk of a transitional period which may see the UK remaining under EU law for 2-5 years after March 2019. This would, in all probability, mean the UK would have the same Freedom of Movement rules during this period.

Digital Single Market

There are various innovations which affect the UK's AV sector including copyright harmonisation measures, recent proposals to apply the single country copyright clearance regime established by The Satellite and Cable Directive to online transmissions in the EU, and the Content Portability Regulation passed in July 2017 which is to take effect in March 2018. We may well miss out on these.

Audiovisual Media Services Directive ("AVMSD")

EU Membership has also given the UK the AVMSD and the following key measures:

  • Quotas – the requirement that 50% of content is comprised of European Works and at least 10% is comprised of Independent Productions (25% in the UK).
  • Protection of Minors – this is largely around the Watershed and prohibiting content that might seriously impair the wellbeing of minors.
  • Advertising – regulation both of content and quantity/Sponsorship/Product Placement which was previously prohibited but is now allowed, subject to tight rules.
  • Listed Events – keeping main sporting events on free-to-air television.
  • Freedom of Movement for Broadcast Services – the country of origin principle, (see below).

Country of Origin Principle

This ensures that broadcasting services under the jurisdiction of one Member State are receivable across the EU; no licence is required in the receiving Member States and the Service only has to comply with the regulations of the originating Member State. The UK has done well under this and of the estimated 2,200 broadcast services licensed in the EU, half (1,100) are licensed here by Ofcom. Ofcom says that in turn that half of those (650) are broadcast from the UK to other countries, meaning that the UK has become the world's leading hub for international broadcasting.

The same freedom of movement principle applies to video on demand, although notably two of the biggest providers are based elsewhere in the EU (Netflix in Holland and Amazon in Luxembourg).

Ireland is making a concerted pitch for this, pointing to the similarities between the UK and Irish licencing regimes and is said to be receiving enquiries from International Broadcasters who are considering re-locating there.

Funding

The Creative Europe Media Programme gave €1.5 billion between 2014 and 2020. Its likely loss would be felt particularly by Welsh and Gaelic language producers.

What are the consequences of no Brexit deal?

Liam Fox recently said: "If we have no deal and we trade on current WTO terms, that's the basis not only Britain trades with countries like the US, but that the EU trades with the rest of the world in most circumstances. So it's not exactly a nightmare scenario."

However, this could be a serious issue for broadcasting as AV services are excluded from WTO free trade agreements because there is a long recognised exception in respect of cultural services. This would mean it would not be captured by any WTO agreement.

However, the UK is a signatory to the Council of Europe Convention on Transfrontier Television 1989 ("CTT"). This is a Convention similar to the ECHR, which is outside the EU. It creates a form of co-operative, but on the grounds of Freedom of Expression rather than with a view to creating a single market. It would therefore not be affected by Brexit and a benefit of the CTT is that by being a signatory, UK programmes would continue to qualify as European Works under the AVMSD. It does however, have certain limitations:

  • 7 Member States are not signatories (although 3 non EU countries are also members);
  • It is rather basic, dating back to 1989, and only applies to Linear services;
  • It does not contain an effective enforcement mechanism so on its own it has no legal basis, more a moral basis;
  • It is arguably moribund as the European Commission now has exclusive competence in relation to such matters even though it is not a party to it.

Going back to what Liam Fox said, a no deal situation may not qualify as a nightmare scenario, but it would be messy and full of uncertainties. If the UK tries to do a deal which is outside the Single Market, there will be lots of challenges, for example, the UK is a net exporter of broadcasting and programmes to Europe, so why would the EU want to give us a good deal if there are little benefits for Member States?

What is in the EU pipeline for the AV sector?

There are current plans to make certain revisions to the AVMSD, though if these do not happen before Brexit then the UK is likely to miss out on these important developments. There is no implementation date as yet and it is still possible that these amendments will come into force before Brexit and therefore would presumably be part of the Great Repeal Act. Here are some of the planned revisions:

  • Aligning Protection of Minors – Non-linear rules will be tightened, ie protective measures will be required for all harmful content, not just that causing serious harm, and linear rules will be reduced, ie content causing serious harm may no longer be prohibited on linear, provided effective access controls are in place.
  • European Works – extending quotas to non-linear: Video on demand services would be required to secure at least 20% of their catalogues from European Works and to ensure adequate prominence of these.
  • Commercial Communications – further liberalisation and increased flexibility.
  • Video Sharing Platforms –Video sharing platforms such as YouTube, Facebook, Instagram and Snapchat will be regulated for the first time (they are currently excluded from existing video on demand regulation under the AVMSD), in two important respects:
    • Harmful Content – Minors will now required to be protected eg by flagging and reporting/parental controls/age verification.
    • Inciting Content – All citizens are to be protected from content inciting hatred.

In other words, be afraid. Be very afraid!

This article was written by Paul Herbert, Partner, Corporate, with assistance from Judith Seifert, Trainee Solicitor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions