Brexit is likely to have a big impact on the broadcasting sector in the UK and, in particular, on the ability of UK-regulated service providers to broadcast within the EU. We provide a brief overview of how Brexit has brought this about and on the options open to those service providers affected.

1. The Audiovisual Media Services Directive (2010/13/EU) (AVMSD) is the cornerstone of media regulation in the EU. It facilitates the circulation of both traditional TV broadcasts and video-on-demand (VOD) services (AVMS Services) within the EU by removing the need for AVMS Services to comply with media regulation in each and every Member State.

2. All services regulated under the AVMSD benefit from the ‘country of origin’ principle (COO Principle), i.e. that only one EU Member State (the country of origin) is entitled to regulate a media service provider. This includes AVMS Services which come from non-EU countries but which fall under the regulatory jurisdiction of a Member State.

3. The COO Principle currently allows a very large number of EU and international media service providers regulated by Ofcom in the UK to provide AVMS Services anywhere in the EU without being subject to secondary regulation in ‘receiving’ Member States. However, Brexit will change all this once the UK becomes a ‘third country’.

4. The draft Withdrawal Agreement between the EU and UK ensures that UK-regulated AVMS Services continue to benefit from the COO Principle during a transition period, i.e. until 31 December 2020. However, this assumes that the Withdrawal Agreement is eventually approved by the UK Parliament and what will happen after expiration of the transition period is far from clear. In essence, it merely prolongs uncertainty for the UK broadcasting sector.

5. In a no-deal scenario, the UK will become a ‘third country’ on the 29 March 2019. This means that UK-regulated services will no longer benefit from the COO Principle and, unless these services fall under the jurisdiction of another Member State, ‘receiving’ Member States will be “free to take whatever measures they deem appropriate”. Bearing in mind that the UK has a relatively light-touch regulatory regime, these measures could include the imposition of additional obligations or, in the extreme, switch-off for non-compliance.

6. Alongside the AVMSD, the UK is a signatory to the European Convention on Transfrontier Television. The Convention guarantees freedom of reception between its signatories and will continue to apply post-Brexit. However, the Convention has a number of drawbacks, including that it doesn’t apply to VOD services. In addition, it has not been ratified by a number of Member States, including Ireland, Belgium, Denmark, the Netherlands and Sweden.

7. Service providers can avoid this Brexit headache by falling under the jurisdiction of another Member State. Contrary to popular belief, establishing jurisdiction in another Member State under the AVMSD can be relatively painless and does not necessarily require the relocation of significant staff or resources.

8. In that regard, Ireland has a thriving creative sector, light-touch regulatory regime and business friendly environment which offers the perfect alternative base for media service providers seeking to establish jurisdiction in another Member State post-Brexit.

9. Unlike in the UK, TV broadcasts over the internet and VOD services do not require a licence from the Irish regulator, the BAI. In addition, the BAI is a pragmatic regulator and has been actively assisting UK broadcasters in mitigating the risks of Brexit by encouraging applications for ‘licences-in-principle’ which can be activated in the event that they are actually needed beyond 29 March.

10. As with other sectors which will be affected by Brexit: fail to prepare, prepare to fail.

What we can do for you

Our leading Media & Telecoms team has extensive experience and expertise on advising a wide range of TV and VOD media service providers on all aspects of the Irish and EU regulatory regimes since the Brexit vote. Indeed, we recently advised on the first TV licence application to be made to the Broadcasting Authority of Ireland in light of Brexit. We have also advised media service providers extensively on other relevant areas including tax, company law, commercial contracts, real estate and employment law.

If you have any queries or require assistance in this area, please contact a member of our Media & Telecoms team.

The content of this article is provided for information purposes only and does not constitute legal or other advice