Ofcom has published a consultation on revisions to its ‘Guidance for Public Service Broadcasters (“PSBs”) On Commissioning Codes of Practice’.

Under the existing regulatory framework, PSBs are required to follow an internal Code of Practice when commissioning independent productions. These Codes of Practice should, in turn, reflect Guidance from Ofcom.

The passage last year of the Media Act 2024 has prompted Ofcom to revisit its Guidance on a number of matters, in addition to updating the Guidance more generally given that its previous iteration was published in 2007.

First, the Guidance has been updated to reflect the fact that, as a result of the changes in section 285 Media Act 2024, PSBs’ Codes will now not only apply to the commissioning of independent productions intended for use on the PSB’s television channel, but also for those intended to be on its designated on-demand player (assuming the PSB wants that content to count towards its independent production quota).

Second, the Media Act 2024 provides that PSBs must comply with new transparency requirements which demand that they provide sufficient information about the application of their Code to independent producers that it commissions. Accordingly, the Guidance has been amended to include provisions that: (a) the PSB should make the producer aware of its Code before negotiations have commenced; and (b) the PSB’s Code and all relevant documents should be readily available and easily accessible on the PSB’s website.

In an attempt to bring the guidance up to date and respond to market developments since its last iteration, Ofcom has also recommended amendments which remove the absolute prohibition on linked or conditional offers for primary and secondary rights. It explains that such a change will “give greater flexibility for the negotiations of a wider set of rights by PSBs” and “improve their ability to compete with global streaming services that are not subject to restrictions on the scope of the rights packages which they are able to negotiate”.

Ofcom also proposes to remove the prohibition on so-called ‘matching rights’ (which give PSBs the ability to match third-party offers for certain rights to content they have commissioned). Whereas previously Ofcom was concerned that a matching rights provision could stifle competition, the consultation explains that viewing patterns have changed dramatically since 2007 and as such it considers that “there is no longer a sufficient case for believing, as a general principle, that the inclusion of matching rights provisions in PSB commissions might have a material adverse impact on competition”.

A few further minor changes are proposed, including requiring that PSBs seek approval from Ofcom before modifying their Code, relaxing the annual reporting requirement, and generally updating terminology and language.

The consultation on the new Guidance is open until 10 March 2025, and more information can be found here.