Baroness Grey-Thompson:

Moved by Baroness Grey-Thompson

42: Schedule 2, page 128, line 3, leave out paragraph 54 and insert—“54 “(1) Section 310 (code of practice for electronic programme guides), is amended as follows.(2) After subsection (3), insert—“(3A) Where a user interface gives access to one or more electronic programme guides, the practices required by the code must include the giving, in the manner provided for in the code, of such degree of prominence as OFCOM consider appropriate to electronic programme guides within the user interface (whether such guides are provided by the person providing the user interface or by other persons).(3B) For the purposes of subsection (3A), OFCOM may consider that different degrees of prominence are appropriate in relation to different electronic programme guides.”(3) Omit subsection (4)(f).(4) After subsection (8), insert—“(8A) In this section—(a) “user interface” means an electronic programme guide that, in addition to the facilities mentioned in subsection (8), includes a facility by which a user may find, select or access electronic programme guides;(b) for the purpose of the definition of user interface in paragraph (a), the description of a service in subsection (8) includes such services provided by means of apparatus.””Member’s explanatory statementThis amendment seeks to secure that OFCOM’s Code of Practice for Electronic Programme Guides (EPGs) gives EPGs prominence. Subsection (8A) defines a user interface as an EPG that – in addition to a traditional linear EPG –includes access to EPGs. This definition would include the means of accessing EPGs, such as remote controls. This amendment requires one short consequential amendment to the definition of “television licensable content service” in section 232 of the Communications Act 2003.

My Lords, I will speak to Amendments 42, 50 and 51 in this group. I again draw your Lordships’ attention to my registered interests.

The UK’s public service broadcasters—the BBC, ITV, Channel 4 and Channel 5—and national broadcasters S4C, STV, and MG Alba, play an essential cultural, economic and social role, supporting British democratic values and underpinning the UK’s creative economy. They produce high-quality, distinctive content, informing, educating and entertaining audiences across the UK. Audiences support this. Seven in 10 UK adults want to see UK life and culture represented on screen. A similar number think that PSBs deliver well on programmes made for UK audiences. Six hours and nine minutes is spent watching BBC TV/iPlayer on average per person per week, which is more than Netflix, Disney+ and Amazon Prime Video combined.

Currently, prominence is one of the main regulatory benefits provided to the PSBs, but the existing regime has not kept pace with technological change. It applies only to linear channels—for example, BBC One—delivered through the channel menu, also known as the electronic programme guide or EPG. The Media Bill updates the rules so that they will apply not just to PSB linear channels but to on-demand services such as BBC iPlayer. This is hugely welcome, but there is further opportunity to ensure that PSB prominence arrangements are future-proofed and watertight, protecting access to the content that people love and enjoy for future generations.

Amendment 42 is on the prominence of the EPG. While the Media Bill seeks to ensure that PSB on-demand services will appear prominently on regulated TV platforms, and PSB linear services within the EPG will continue to benefit from the existing prominence regime, there are no protections for the EPG itself. A growing number of IP-only households watch videos via a broadband connection. This is expected to exceed 50% of total households by the end of this decade. All this has led to more people watching content on demand. It does not mean the end of linear, which remains the single biggest way that people watch video content and delivers 82% of audiences’ consumption of BBC TV content. The familiarity of linear TV will continue to make it a popular discovery route for audiences, even as they move away from digital terrestrial television.

The PSBs have responded to the continuing need for live TV by investing in an online linear solution freely, but linear TV is being eroded. The EPG has been downgraded within TV user interfaces and the linear schedule hidden away. This comes at the expense of PSB. In internet-only homes, without a linear programme guide, the BBC gets just 22% of our normal consumption. The current rules do not enable Ofcom to support audiences by safeguarding this popular and familiar way of watching TV. The Government should use the Media Bill to update the Communications Act 2003 to safeguard linear TV, an important and familiar viewing route. This would also support audiences as the digital transition continues. The amendment would require Ofcom to give the EPG itself the degree of prominence that it considers appropriate. This is in keeping with the existing linear prominence framework, with high-level legislation underpinned by Ofcom guidance and codes. This is a flexible and future-proofed approach.

Amendments 50 and 51 concern the definition of “appropriate prominence”. The Media Bill gives PSB on-demands appropriate prominence but does not define what this means, leaving it open to interpretation. Ofcom will be the regulator of the prominence regime and sufficient direction and clarity about the outcomes that Parliament wishes to see is crucial in order to allow Ofcom to implement the rules robustly. As recommended by the CMS Select Committee, the PSBs should receive “significant” rather than “appropriate” prominence. The best way to secure this is for the Bill to set out explicitly what “appropriate” means. A further amendment to the Media Bill should also set out more concretely the areas of Ofcom guidance that the application of appropriate prominence should cover: for example, search, recommendations and personalisation, acting as a further safeguard. I beg to move.

My Lords, Amendments 46 and 47 are in my name and that of the noble Baroness, Lady Bonham-Carter. We had a bit of a knock-around on “prominence” at Second Reading—was it “appropriate”, “significant” or, as the right reverend Prelate ventured, neither? Indeed, he was right; the word itself should be enough, for the Oxford English dictionary defines it as

“the state of being important, well known, or easy to notice”.

We want the PSBs, on any screen that offers choices between PSBs and streamers, to be important, well-known, and very easy to notice. It is vital, as commercial operators do not always want us to choose the PSB, because their gods are commercial. As we know, things can get very small and difficult on-screen when customers choosing it means less income—think about how hard it is to find that tiny “unsubscribe” notice when we want to get out of emails from some commercial arrangement we no longer want. It is not in commercial entities’ interests to make life easy for us; that is why we have to mandate and prescribe “prominence”. We on these Benches do not believe it is sufficient to leave it to Ofcom to define. I have heard the arguments about “appropriate” being perfectly adequate, and we beg to disagree.

For clarity, I am trying to get across that we on these Benches believe that prominence must be defined in legislation to guide Ofcom, and not be left open-ended for it. That definition should be crystal clear: that in every and any situation where channel choice is being offered, the PSB logo or whatever should be of equal or greater prominence to any other choice offered on the electronic programme guides.

The dangers of not specifying what prominence means or seeks to achieve in the Bill could include a loss of funding. PSBs often rely on public funding or subsidies to fulfil their mandate of providing programming that serves the public interest; without prominence, they may struggle to attract viewership and advertising revenue, leading to financial difficulties that could jeopardise their ability to produce the sort of high-quality content we want them to. PSBs may find it challenging to reach a wide audience, particularly in a crowded media landscape where viewers have numerous options for their entertainment; that could lead to a decline in their influence and relevance, making it harder for them to fulfil their role as a source of impartial news, educational programming and cultural content.

The public service mandate could be undermined, as PSBs are tasked with providing programming that serves the public interest, including news, current affairs and educational content. Without prominence, they may struggle, and their content may be overshadowed by commercial broadcasters or streaming services prioritising profit. It could also be a threat to media diversity and cause a loss of trust and accountability. Lastly, if public service broadcasters are not given prominence in a democratic society, there are issues around this that could arise: an erosion of media pluralism, a threat to freedom of information, diminished public discourse, a loss of accountability, and the undermining of democratic values, social cohesion, education and lifelong learning, and cultural preservation.

As this is a probing amendment, I encourage the Minister to think about bringing back his own amendment as an instruction to Ofcom in dealing with prominence, to say that, however it writes it regulations, PSBs must have equal or greater prominence than any other offer on the screen.

My Lords, summing up from these Benches on the amendments in this group, I congratulate those who have spoken, in particular the noble Baroness, Lady Grey-Thompson. It crossed my mind as I was about to stand up that on the first day in Committee I was congratulating and following a prima ballerina and today it is an Olympian—which rather reduces my sense of myself. I am sure the Minister will agree that it is a remarkable example of what the Department for Culture, Media and Sport produces that we have as great legislators these great sportsmen and artists.

The Government have listened to our incredibly important public service broadcasters and heard their plea about future-proofing prominence, and made it prominent in this Bill. For British audiences to lose easy access to our PSBs would be a very bad idea. How lucky we are to have them, and what a vital role they play in underpinning not just our creative economy but our culture and democracy. That is why we must ensure that all PSB content and services are available on all major TV-connected platforms, and that they are easy to find. As the noble Baroness, Lady Grey-Thompson, said, UK audiences have demonstrated time and again, through their viewing and listening habits, that they want to watch this material—in fact, more time is spent watching BBC iPlayer on average per person per week than Netflix, Disney+ and Amazon Prime Video combined.

The streamers love the UK because of its trailblazing R&D, led by the BBC, as well as the skills and infrastructure of the PSBs as a whole, but they cannot become the cuckoo in the nest, and that is the challenge. Amending the prominence clauses of the Communications Act 2003 is essential, which is what this Bill sets out to do. Some 20 years ago, we carefully constructed a linear broadcasting system to ensure that the benefits of PSBs would be easily accessible to everyone. However, with apologies to the noble Lords, Lord McNally and Lord Lansley, 2003 was a very long time ago, and the media landscape today is very different.

The fact that the Media Bill updates the rules to embrace the PSBs’ on-demand services, such as BBC iPlayer and ITVX, is hugely welcome, and we want to see it passed into law as soon as possible. However, as my noble friend Lady Featherstone said, we do not think it goes far enough. The Bill mandates only “appropriate” prominence, thereby allowing too much discretion to the regulator, Ofcom, which will no doubt be lobbied vigorously by powerful platforms. More direction from Parliament, as the noble Viscount, Lord Colville, said earlier, is critical to ensuring that neither Ofcom nor the platforms are left with any doubt as to the importance of prioritising PSB content.

We discussed the use of the word “appropriate” during the first day in Committee, in the context of genres. The same arguments made then—lack of a proper definition—apply to prominence. Amendments 46 and 47 would provide greater clarity by replacing “appropriate” with “significant”. This was also recommended by the CMS Select Committee report on its pre-legislative scrutiny, which said:

“The current position, that PSBs are given ‘appropriate’ prominence … has determined that they have the top spots. However, this does not work in the advanced user interfaces of today and so we recommend that the threshold for PSB prominence should be raised to ‘significant’”.

Amendment 50 continues on this theme, and would ask Ofcom to ensure a strong degree of prominence for the PSBs when issuing its new code of practice. This is also in line with the CMS Select Committee’s pre-legislative scrutiny report. Amendment 51 adds to this by specifying that the new code should ensure that prominence applies to other functions currently available on digital and on-demand platforms, including search functions, recommendations and personalised functions—in other words, that algorithms owned by the streamers do not promote their own content at the expense of the PSBs and do not make the viewers’ choices for them.

Finally, as we heard earlier, Amendment 42 is designed to ensure that the linear electronic programme guides on which many of us still rely for accessing the PSBs do not disappear as households move from Freeview or Freesat delivery to broadband. Some 82% of BBC content is currently delivered via linear programme guides, but the Bill places no requirement on TV manufacturers or other platforms to guarantee easy access to that linear guide, which could, for example, disappear completely from remote controls for smart TVs. Platforms that want to prioritise their own services could easily relegate the linear guide, making it difficult or impossible to find, while promoting their own services on their TV interface. The amendment will address this loophole.

The UK has a proud history of public service broadcasting, which has enriched this country for over 100 years. It has been the cornerstone of a thriving creative economy, of British stories for British people, and of a dynamic and informed British democracy. That is what we are seeking to future-proof today, and it has never been more important.

My Lords, I endorse everything that the noble Baroness has said apart from the language point. Why is “significant” an improvement on “appropriate”, when neither of them are defined? “Significant” has to mean significant of something—we might think that it just means “a lot”, but it does not. It is as meaningless as “appropriate”, indefinable and cannot be quantified.

To my mind, “significant” is very different from “appropriate”, which is a wishy-washy, woolly term, whereas “significant” is a specific term.

My Lords, it is not. If we went around the room and asked, “Please quantify it, or tell us what it means”, I think we would—

What word would the right reverend Prelate use?

I have struggled with it, but “substantial” or “substantive” might get us somewhere, rather than something that does not actually mean anything. The General Synod of the Church of England has a similar problem; it put “collegiate” in some recent legislation when it meant “collegial”—it had nothing to do with colleges. I worry about putting things in legislation that cannot be defined.

The right reverend Prelate is nothing if not consistent. He has been raising what “appropriate” means in the Bill from the word go.

This group of amendments, and the debate which we have just had, is in many ways at the heart of the Bill. At its heart is the issue of our public service broadcasters as the cornerstone of our broadcasting sector in the UK, investing, as they do, billions of pounds in original productions and creating content that is trusted, valuable and entertaining for UK audiences. In return for the high standard of programming and investment that public service broadcasters provide, their channels have been made easy to find on linear television sets—to the benefit of audiences across the country. However, amid rapid changes in how viewers access television and content more generally, the prominence regime, which has not been updated for decades, is at increasing risk of becoming diluted and outdated.

It seems there are two major issues. First, public service broadcasters are in danger of being cut out of view, as noble Lords have said in this short debate, as global content players and platforms strike international deals with online platforms for prominence. Secondly, as a result, our public service broadcasters are at risk of being forced to concede increasingly material percentages of their revenue to those platforms simply to appear on them.

In this situation, it seems that almost everybody loses out—from audiences to the wider UK production economy, even the platforms themselves, which might find themselves in a position where they cannot promote the content that UK viewers most want to see. A new prominence framework for the digital era, therefore, was always going to be crucial. These amendments address how prescriptive such a new regime should be in legislation.

We on these Benches welcome that the Government have avoided explicitly spelling out what prominence looks like in the Bill or making primary legislation restrictive or resistant to future changes in technology and behaviour. Instead, we endorse a principles-based approach based on finding mutually beneficial carriage deals between what are branded “designated internet programme services” and “regulated television selection services”, with Ofcom able to provide a framework in which those negotiations can operate. Ofcom must show that it can and will undertake this important duty as a regulator. There must be strong dispute resolution and enforcement powers for Ofcom, including the ability to impose significant penalties as a result of non-compliance. That allows for maximum flexibility in both legislation and negotiations, as well as proper protections where agreements cannot be reached. It also allows for the regime to be expanded where necessary to capture new technology via which people might be watching television content. Platforms and PSBs have a history of successful negotiations, creating mutually beneficial deals and partnerships that it would be counterintuitive for the prominence regime to undermine.

We support the drafting, but we seek some clarity on the requirement to secure “appropriate” prominence. This was a major topic of discussion during the pre-legislative scrutiny process, with the majority of PSBs calling for this to be upgraded to “significant” prominence. The arguments were based mostly on the differences between linear and digital streaming landscapes.

I invite the Minister to provide a full response to the legitimate argument for “significant” prominence, and to outline the reasons why the prominence requirement has not been upgraded. What conversations have been had with Ofcom on how the detail of the regime will be set out in the code of practice to ensure that it meets its aims? We will need a strongly empowered Ofcom if the Bill is to succeed.

The BBC has consistently called for the possibility of including remote controls and multi-use devices in the prominence regime. I know that its latest thinking is that electronic programme guides could be given prominent buttons on remotes, rather than one PSB in particular. Though we are all keen to see this legislation on the statute book, our aim is that we fully seize this once-in-a-generation opportunity to ensure that public service content is easily findable in the digital age. The Minister must assure us that that can be achieved and tell us how.

My Lords, the introduction of the new online prominence framework is arguably the most important change that the Bill brings about in terms of ensuring that high-quality public service content remains available and easy to find online, and in helping to secure the future sustainability of the public service broadcasting system in the UK, of which we are so proud.

I will speak briefly about government Amendments 48 and 49 together. These amendments are to ensure consistency with Part 3A of the Communications Act 2003 in how the Bill describes the content and channels contained within the internet programme services that may be designated by Ofcom. These are technical amendments and I hope noble Lords will support them.

I now turn to the other amendments in this group that noble Lords have spoken to. The duty on regulated television selection services to give prominence to designated services goes to the very heart of the regime, so I understand why many noble Lords have strong views on this—as we heard today and at Second Reading—and why they are keen to ensure that the drafting delivers sufficient prominence for our public service broadcasters.

Amendments 46 and 47 seek to amend the duty on platforms to give designated services “appropriate” prominence to “significant” prominence. I can reassure noble Lords that a lot of careful consideration has gone into the exact wording used in relation to this duty on discoverability. We have consciously designed the new online prominence framework to ensure that it strikes the right balance between ensuring that important public service content is easy to find online and ensuring that regulation is operable and proportionate.

As I made clear on Second Reading, there is a reason why we chose to use “appropriate”—it is a well understood term that has been delivering effective prominence for our public service broadcasters in relation to linear broadcasting for two decades now. It is the term used in the Communications Act so is understood in this context, even if etymologically—lexicographically—we may continue the debate. We remain of the view that “appropriate” is the right descriptor for prominence and that any amendments to the drafting—including removing “appropriate” or changing it to “significant”—could have unintended consequences for the overall user experience. It is not the intention of the new framework to restrict innovation or undermine customer choice or personalisation, for instance.

The Government agree with the intention behind Amendment 50 tabled by the noble Baroness, Lady Grey-Thompson. That is why, on Second Reading, I confirmed that public service broadcaster applications and the content they provide should be among the most prominent on the platform, whether that is on the homepage, in search results, or through recommendation lists. However, we also need to make sure that the framework is not excessively prescriptive and that it does not compromise service delivery or customer personalisation. That is why we took the decision not to set out what is an “appropriate” level of prominence on the face of the Bill. Rather, we have delegated discretion to Ofcom to set out various ways in which a regulated television selection service could deliver this across its user interface. This is in recognition of the fact that “appropriate” prominence could look different, and indeed will look different, on different platforms.

Although the details of the code are still to be developed, I am happy to clarify the Government’s expectations in terms of Ofcom’s assessment of appropriate prominence, particularly in light of Amendment 51, also tabled by the noble Baroness, Lady Grey-Thompson. It is our expectation that Ofcom’s code would look at things such as: the presence of the applications in high-traffic areas such as the homepage and relevant recommendations lists; how the applications should generally appear consecutively; and how much a user has to scroll or how many clicks are required to access designated internet programme services. Ofcom may also choose to consider the initial set-up choice once “out of the box” in its own guidance.

Given that the code of practice will be a core component of the prominence regime, it is right that Ofcom first consults the industry ahead of developing and publishing that document. I encourage public service broadcasters and television platforms to continue engaging with Ofcom as there will still be ample opportunity to inform and shape its approach.

Let me also address Amendment 42 from the noble Baroness, Lady Grey-Thompson, which relates to the accessibility of public service broadcasting services, including via electronic programme guides. I should make it clear that the online prominence regime is a standalone and bespoke regime. Clause 28 does not propose any changes to the existing linear prominence framework under Section 310 of the Communications Act. We agree that linear channels will continue to be a popular way of consuming television in the years to come.

Fortunately, the linear prominence regime under Section 310 of the Communications Act applies to designated public service broadcasters’ channels which appear on a “regulated” electronic programme guide, in the context of both digital terrestrial and internet protocol television distribution. The Government already have separate work under way looking at the designation of additional electronic programme guides for regulation, which raises the prospect of public service channels—including IPTV simulcasts—being given appropriate prominence on a wider range of electronic programme guides in the future. We also, however, understand that the route to livestream channels is not always a traditional, regulated programme guide. That is why we took the policy decision to include public service livestream channels in the new prominence regime.

Under the new framework, if the public service broadcaster offers a livestream version of its main channel as part of a designated internet programme service, and that livestream version already receives prominence in the linear space, then a regulated television selection service must give that livestream version appropriate prominence where it appears separately in the user interface. Ofcom will ultimately set out various ways in which a regulated television selection service provider can deliver this appropriate prominence for designated services. There is certainly nothing stopping a service provider ensuring that the route to the TV guide—and thus public service channels—is easy to find on their service. Indeed, that would seem a simple way to deliver that duty.

Overall, we believe the current drafting of this new prominence framework works and that it strikes the right balance. This is testament to the extensive engagement we have carried out during its development, following its publication in draft and the pre-legislative scrutiny that the Bill received from the Culture, Media and Sport Select Committee in the other place. We have listened to interested parties and very consciously made changes to the Bill before introduction where necessary. For those reasons, I am not able to accept Amendments 42, 46, 47, 50 and 51, but I am grateful for the opportunity to set out again today the reasons for that and the changes we have made in developing the Bill.

My Lords, I thank all noble Lords who spoke on this grouping. I also thank the right reverend Prelate the Bishop of Leeds for giving us a different set of words we can use. I am sorry my noble friend Lord Colville is not in his place; I am merely an occasional TV and radio presenter as opposed to someone who works in the industry. “Appropriate” and “significant” are part of the language of the media, which is rather like the language of your Lordships’ Chamber; it is quite subtle and not always easily understood by people who work elsewhere.

I also thank the number of broadcasters that got in touch with me once I had tabled the amendments, particularly ITV, which spent some time with me pointing out why it did not think my amendment would necessarily work. It is not opposed to strengthening the language to “significant” prominence, and none of us wants any unintended consequences from these amendments, but strengthening that might be something to look at. No doubt the strength of the regime will depend on Ofcom’s implementation regardless of the change. There is plenty more to discuss on finding the right terminology for this. I am slightly disappointed but not surprised that my enthusiasm for these amendments is not shared by the Minister, but I am likely to come back again at the next stage. With that in mind, I beg leave to withdraw my amendment.

Amendment 42 withdrawn.

Amendments 43 and 44 not moved.