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Ewan Sutherland: Regulating the Media in an Independent Scotland

The white paper on Scotland’s Future (the “prospectus”) is silent on the subject of the regulation of magazines, newspapers, radio and television, almost as if the relevant sections had been removed.

There is to be a Ministry of Culture, Communications and Digital, with a cabinet secretary assisted by a minister for communications, focusing on policy and promotion.

A framework for other areas of regulation has been defined in terms quite different from the current UK structures. It is to comprise:

  • a competition authority
  • a multi-sector regulator (electricity, gas, posts, rail, telecommunications and water)
  • a consumer authority

There is a single reference to the second of these bodies, sometimes called a “combined economic regulator”, in the following, rather obscure, terms:

Capacity will be developed within the new regulator to advise on the regulation of broadcasting content. (Prospectus Q. 100)

It is neither explained what that advice might concern nor whom the recipient of that advice might be. Logically, economic advice should be expected from the competition authority. A previous document on economic and competition regulation considered separation of economic and other regulatory functions, hinting at a standalone media regulator.

At present media regulation in the UK is split between the OFCOM Content Board, the BBC Trust and the bodies to be authorised by the Recognition Panel, recently created by Royal Charter. The last of these was the result of lengthy and highly controversial debates arising from the Leveson Report. A reasonable expectation might have been a proposal in the Prospectus for a single authority to oversee television and radio, both broadcast and on-demand, even if press regulation was too sensitive to include.  Instead of which there is a vacuum.

The relevant European Union legislation is the Audiovisual Media Services Directive (2010/13/EU), Article 2 (1) of which requires that:

Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.

The Directive sets out how content regulated in one member state may be broadcast to another, as would be the case between Scotland and the rest of the UK after independence.

While most member states have a regulator, there is no direct obligation to create such an authority. There is flexibility in the structures, for example, the Belgian constitution assigns responsibility for media to its Flemish, French and German language communities, resulting in each having its own regulator, with a coordinating committee. Scotland could create a standalone entity or one combined with press or telecommunications, alternatively it could create separate English and Gaelic language regulators.

The European Commission has paid considerable attention to the independence of media regulators, having recently completed a consultation (see submissions) following a report. It is an issue frequently raised with accession and candidate countries, given concerns that governments have been too directly involved in media regulation and ownership. When the Scottish Government explains its proposals for media regulation it will need to set out how the independence of the body concerned will be ensured.

Regulation of the printed media is left to member states. In what seems rather anachronistic terms, Recital 28 of the Directive excludes electronic forms of newspapers and magazines. To contemporary eyes and ears these would be largely indistinguishable from the web sites and mobile apps of radio and television broadcasters and over the top (OTT) providers (e.g., blogs, Spotify and Netflix).

Representatives of media regulators participate in EU governance networks, both an informal group and the European Platform for Regulatory Authorities (EPRA), helping to address issues arising from broadcasting across borders. A representative of the Scottish media regulator would be expected to participate in this work, at least from independence if not sooner.

The Scottish Government proposes the BBC continue to operate in Scotland after independence, until the expiry of its Royal Charter at the end of 2016, without changing the self-regulation of its broadcasts by the BBC Trust and supervision by OFCOM of its non-public service activities, under the oversight of Westminster and the English Courts. This appears an odd arrangement in what would be crucial period for a new state.

From the beginning of 2017, a Scottish Broadcasting Service (SBS) would come into existence from the assets of the BBC in Scotland and TV licence fees. It is unclear whether it would operate under a Royal Charter or be a corporate body (e.g., community interest company). The Scottish Government anticipates SBS, as part of the division of assets, to receive around 8 per cent shareholdings in the BBC commercial activities, gaining substantial revenue flows, though with little influence over its management. Moreover:

We propose that the SBS should enter into a new formal relationship with the BBC as a joint venture, where the SBS will continue to supply the BBC network with the same level of programming, in return for ongoing access to BBC services in Scotland. (Prospectus p. 318)

The SBS is almost to be a semi-detached part of the BBC, keeping licence fees from Scotland and bartering programmes for broadcast channels. There has been no indication that this is of any interest to the BBC or that it would be acceptable to a future London government, presumably with much depending on the quality of the programmes produced by SBS.

The prospectus states that all existing broadcasting licences would be “honoured”. Assuming continuity between the UK and the newly created Scottish state there could be financial consequences if they were not honoured. The Scottish Government also commits to continuity of a strange list of television programmes: Eastenders, Strictly Come Dancing and Dr Who.

The present licences are based on UK statutes which might be expected to be replicated as Scottish statutes. Licence holders are subject to regulation by OFCOM for their use of spectrum, by the OFCOM Content Board for programmes and the Advertising Standards Authority (ASA) for adverts, overseen by OFCOM. The Prospectus is hard to interpret, given its omission of any mention of a Scottish Content Board or a new media regulator, while the anomaly of self-regulation by the BBC Trust neither mentioned nor resolved. Nonetheless, some form of Scottish media regulator would be unavoidable. The co-regulation system for advertising could be replicated in Scotland, with a Scottish ASA, whereas a continuation of the present system would leave advertisers and broadcasters accountable to a London-based regulator, overseen by Westminster and the English courts.

Licences for UK commercial radio and television channels (e.g., Sky, Channel 4 and Classic FM) would have to be split, one for Scotland and another for England, Northern Ireland and Wales, broadly on the existing terms, which would continue to apply to regional and local licences (e.g., STV, Glasgow Television (GTV) and Radio Clyde). Some changes would be necessary, bringing them under the new Scottish regulatory system and courts. One consequence of such a split is that operators would look separately at the viability of their operations in Scotland and especially at the attractiveness for advertisers and viewers, something they are unlikely to have done in the past.

The prospectus omits mention of the issuance, cancellation and renewal of Royal charters, presently the responsibility of the Privy Council Office in Westminster. Such charters are held by a number of organisations in Scotland, including professional bodies and the universities. It would be necessary to determine which UK-wide Royal Charters continued to apply, such as that of the BBC, and those which ceased, such as the Recognition Body. Given the need to issue and to renew such charters, some comparable mechanism would be necessary, perhaps renewing the Scottish Privy Council, abolished in 1708, though something more in keeping with the twenty-first century might have been expected, rather than the silence of the Prospectus.

In the first instance, the Scottish Government needs to reduce uncertainty by setting out its proposals for media and advertising regulation, including for the press. Discussions on these topics would be valuable, regardless of the outcome of the referendum, since they might also inform a future devolved settlement in which regulators face conflicting views of the various parliaments and assemblies.

Ewan Sutherland is a Research Associate at the University of Witwatersrand Link Centre, South Africa

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