Last week EU Commission President, Ursula Van Der Leyen, made her most optimistic comments yet on the Brexit trade talks. But as her mask, and the covid lockdowns being imposed across Europe, underline the preeminent focus of European governments is on fighting the pandemic for the remainder of 2020.

It will be a minor miracle if the Brexit talks succeed. But even if they do they will not cover broadcasting. The problems facing broadcasters based in the UK but wishing to distribute their services across Europe when the UK leaves the EU at 11pm on 31 December 2020 remain.

Back in January 2020 Ofcom published a document to help clarify the position: Very broadly, after the UK leaves the EU, broadcasters wanting to broadcast freely across the EU from Britain will no longer be able to rely on their Ofcom licence to do so. The UK government hope that such broadcasters will be able to rely instead to the European Convention on Transfrontier Television (ECTT). But there is a major problem with the ECTT: most, but far from all, EU member states have signed it. Important countries not bound by it are Belgium, Denmark, Greece, Ireland, Luxembourg, The Netherlands and Sweden.

This is why over the past couple of years various TV broadcasters have moved their head offices or important operations out of the UK to another EU member state and/or sought the necessary licences or authorisations from another EU member state so they can continue to broadcast freely across the EU. The few (I hope) broadcasters with Ofcom licences who have not thought this issue through and taken appropriate action need to do so URGENTLY.

TV services broadcast to the UK (ie by satellite, cable or terrestrial means) and on a regulated Electronic Programme Guide (EPG) will still require an Ofcom licence after Brexit. But there is an intriguing loophole here. If a TV service based in the UK distributes its programmes by internet only and only to the UK, and is not on a regulated EPG here, it will not require a Television Licensable Content Service (TLCS) licence from Ofcom. It would therefore be self-regulating, subject to the general law of the UK after Brexit.

If that same service also distributes its programmes to an ECTT country, will it require an Ofcom TLCS licence? Answer 3 of the Ofcom FAQs (see above) implies it would not, because it would not under the Broadcasting (Amendment) (EU Exit) Regulations 2019 be defined as receivable in that ECTT country (not being distributed by satellite). If so, again, that service would appear to be self-regulating as regards all the ECTT countries where it is receivable. Any of those ECTT countries of course might have their own legislation or requirements which apply to internet TV services distributed by internet on their territory. And of course the EU Audiovisual Media Services Directive (AVMSD) is still law in the six EU members who are not signatories to the ECTT.  

Hopefully this loophole will not be deliberately exploited after 31 December 2020 by entities or individuals to broadcast TV channels over the internet with unsuitable content (especially during daytime) which will compete with traditional TV services but not be regulated under the Ofcom Broadcasting Code or BCAP Code. Watch this internet space.

On demand services whose head office and editorial decision-making capacity are based in the UK will specifically be subject to UK regulation and need to notify Ofcom. This means ironically that internet only on demand services based in the UK will be subject to more British regulation than their TV service equivalent. And because Ofcom will no longer be able to give authorisation under EU law to UK based on demand services to distribute their services freely across the EU, a number of significant on demand services have already decided to base themselves and be regulated not in the UK but an EU state – Netflix for example is regulated by The Netherlands.

So after 11pm on 31 December 2020 broadcasters and on demand services based in Britain, and Ofcom itself, are headed into some uncharted licensing territory. This has untested areas and some of the issues are quite thorny. The direction of travel is clear though: the UK is no longer the country of choice for broadcasters or on demand services seeking an authorisation to distribute their material across Europe. In my opinion, Britain will be all the poorer for it.