UK Offence Report

Enforcement of directions under section 368Z5 or 368Z6

regulation 368Z8(1) of The Audiovisual Media Services Regulations 2020

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 A person (“P”) is guilty of an offence if P provides

a video-sharing platform service—

a while P’s entitlement to do so is suspended by

a direction under section 368Z5 or 368Z6, or

b in contravention of

a restriction contained in such

a direction.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 368Z8(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing the thing the provision prohibits under the Audiovisual Media Services Regulations 2020, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
30 September 2020
In force from
Not determined
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement certain provisions of Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities (“the amending Directive”). Directive 2010/13/EU is known as “the AVMSD”. These Regulations make amendments to the Broadcasting Acts of 1990 (c. 42) and 1996 (c. 55) and the Communications Act 2003 (c. 21) (“the 2003 Act”). Audiovisual media services comprise broadcast television and on-demand programme services (a service which provides programmes online, at a time chosen by the viewer, see section 368A of the 2003 Act). The main new features of the revised AVMSD include expansion of its scope to encompass dissociable sections of a service, the principal purpose of which is to provide programmes to the general public. As an increasing number of consumers access audiovisual content online, the AVMSD also seeks to level the playing field between different types of providers. It removes the distinction between broadcast television and on-demand programme services in the application of rules to protect audiences from harm. The AVMSD reinforces protection against incitement to violence or hatred and public provocation to commit terrorist offences. Audiovisual media services are required to protect minors from harmful content using measures proportionate to the potential harm, including through selecting the time of the broadcast, age verification tools or other technical measures. Regulatory authorities must establish and keep an up to date list of providers of audiovisual media services. Lastly, the scope of measures to increase accessibility to audiovisual media services for disabled persons is widened to encompass all disabilities, not just those concerning impairment of sight and hearing. Part 2 makes amendments in respect of broadcast television services. The details of content standards for broadcast television are contained in OFCOM’s Broadcasting Code (available at: https://www.ofcom.org.uk/__data/assets/pdf_file/0016/132073/Broadcast-Code-Full.pdf or from OFCOM, Riverside House, 2a Southwark Bridge Road, London, SE1 9HA). In setting standards, OFCOM must secure the standards objectives set out in the 2003 Act, see in particular section 319 of, and Schedule 11A to, that Act. Part 2 makes amendments to those provisions, and changes will also be made to the Broadcasting Code. Part 3 makes amendments in respect of on-demand programme services. The content standards are contained within Part 3 itself and are amended (see sections 368E to 368H). The Regulations ensure that standards and advertising rules for on-demand programme services are equivalent to those for broadcast television. In addition, there is a new requirement for a 30% quota for European works on services (being works originating from certain European countries, or from qualifying co-productions involving those states), to be assessed over the course of a year. Exemptions are available where the service has a low turnover or a low audience or it is impracticable or unjustified for those subsections to apply because of the nature or theme of the service – see section 368CB of the 2003 Act. There are bespoke provisions relating to the application of Part 3 to the BBC and the Welsh Authority which are amended (see sections 368P and 368Q of, and Schedule 12 to, the 2003 Act). The AVMSD also regulates video-sharing platform services for the first time. The Regulations insert a new section Part 4B into the 2003 Act to deal with this. See section 368S for the definition of video-sharing platform service: it is a service providing videos online to members of the public where the person providing the service has general control only over the organisation of the videos on the service, and not over the videos which are available. The AVMSD requires providers of video-sharing platform services to take ‘appropriate measures’ to achieve specified protection purposes. The protection purposes are: to protect minors from content and advertising that might impair their physical, mental or moral development; to protect the general public from content and advertising that incites violence or hatred towards people with certain protected characteristics; and to protect the general public from content and advertising that is a criminal offence under EU law to circulate (i.e. terrorist content, content containing child sexual exploitation and abuse, and racist/xenophobic content). The system does not involve direct regulation of content on services, instead, there is regulation of the systems which providers of video-sharing platform services have in place. This reflects the limited level of control that service providers have over the content provided by their services, as material is uploaded by third parties (see section 368Z1 and Schedule 15A of the 2003 Act). Service providers have to take “appropriate measures” to deliver the protection purposes, such as having in place and applying certain terms and conditions of service for users; establishing and operating flagging and reporting mechanisms, age verification systems, systems to rate the content and easy-to-access complaints procedures; and the provision of parental control systems. However, there are greater controls for content which is under the direct control of service providers, being audiovisual commercial communications (advertising) that are marketed, sold or arranged by service providers (see section 368Z). Section 368T makes provision for the appropriate regulatory authority for Part 4B. In the first instance it will be OFCOM, but OFCOM has the power to designate any body corporate meeting certain conditions to be a co-regulator. The enforcement powers are in sections 368Z2 to 368Z8, and include power to give enforcement notices and to impose a financial penalty. There is power for the regulatory authority to charge a fee to cover the costs of regulation in section 368Z9, to demand relevant information in section 368Z10, and in section 368Z11 for OFCOM to from time to time produce and publish reports about compliance by providers with the requirements. There are new duties for the regulatory authority to co-operate and provide information and assistance to other member States and the European Commission in order to achieve compliance with the AVMSD: see section 335A (in respect of relevant broadcasters), section 368OA (in respect of providers of on-demand programme services) and section 368Z12 (in respect of providers of video-sharing platform services) of the 2003 Act. Part 5 concerns signal integrity measures which prohibit audiovisual media services from being shortened, altered, interrupted, or overlaid for commercial purposes, without the explicit consent of the media service provider (see sections 347A to 347F). These provisions are subject to “sunsetting” and will cease to have effect on IP completion day (see regulation 49). Part 7 contains transitional provisions. Regulation 53 concerns the quota for European works and deals with the issue of the requirement for the remainder of this year. Regulation 54 concerning advance notification relates to the fact that the amendments inserting section 368B(4) (advance notification of a change to an on-demand programme service) and s368V (advance notification of provision of a video-sharing platform service) do not come into force until 6th April 2021. Existing service providers at this date will have a month to provide the necessary notification. Regulation 55 specifies the time period within which matters relating to breach of the signal integrity provisions can be brought to OFCOM’s attention for potential enforcement action. A Transposition Table outlining transposition of Directive (EU) 2018/1808 is available alongside these Regulations at www.legislation.gov.uk and from the Department for Digital, Culture, Media and Sport at 100 Parliament Street, London SW1A 2BQ. A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available alongside these Regulations and from the Department for Digital, Culture, Media and Sport at 100 Parliament Street, London SW1A 2BQ.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source