Audiovisual Media Services (Amendment) Regulations 2021

Lord Foster of Bath Excerpts

Tuesday 13th April 2021 Grand Committee

[Lord Foster of Bath (LD)]

My Lords, last November, when we debated the earlier SI, I welcomed it but raised a number of concerns. Frankly, today’s extra-technical fixes do not allay those concerns. A critical concern was about who would regulate to our satisfaction services that are available in the UK but are based elsewhere. The Minister said in November:

“Under the revised AVMS directive, each EU member state and the UK is responsible for regulating only the video-sharing platforms that fall within its jurisdiction. There will be only one country that has jurisdiction for each platform at any one time.”—[Official Report, 27/11/20; col. 440.]


So we have no say in the regulation of on-demand platforms, such as Netflix, which will be regulated in the Netherlands, and video-sharing platforms, such as YouTube, which will be regulated in Ireland.

Today’s SI does not help. It merely replaces the duty on Ofcom to co-operate with EU regulators with a power for Ofcom to do so. As the Minister explained last November,

“Ofcom will rely on informal co-operation with the relevant EU regulatory authorities for information regarding determination of jurisdiction and discussions on co-operation and consistency of approaches towards video-sharing platform regulations”.—[Official Report, 27/11/20; col. 451.]

So it is down to informal co-operation rather than, as previously, having membership of the European Regulators Group for Audiovisual Media Services, which sets the rules for how all other EU regulators will operate.

I have frequently asked whether Ofcom will seek at least observer status of ERGA so that we may have something a little more than “informal co-operation”. Can the Minister tell us whether the Government are urging Ofcom to do so? Of course, if it were significantly updated to cover ODPs and VSPs, the Council of Europe’s Convention on Transfrontier Television could provide a way for us to have a greater say, as, along with most EU countries, we remain in membership of the council. Are the Government considering this? Can she outline the intended regulatory regime once we have our much-awaited online harms legislation?

Last November, I asked the Minister:

“Do the Government intend their online harms legislation to bring all VSPs that impact on UK consumers under the scope of UK regulation?” —[Official Report, 27/11/20; col. 444.]

I did not get an answer then. Can she tell us now? If the answer is no, surely the much-vaunted taking back control will be a sham.

Finally, I ask the Minister to reflect on something else she said back in November, when she commented that

“if a platform has no physical presence in any country covered by the AVMS directive, then no country will have jurisdiction over it, even if the platform provides services in those countries.” —[Official Report, 27/11/20; col. 440.]

Are we really to believe that if a service provided to UK customers is based outside the EU or UK—say, in China—we will have no power to regulate it? I hope she can explain.