The ghost of Brexit past – is leaving the Digital Single Market messing with your favourite TV shows?

By Sabine Tyldesley

At the end of 2020, figures showed that streaming providers including Netflix and Amazon Prime Video had raised subscriber numbers to 36 million in the UK, a significant jump on the 24 million recorded at the end of 2019. Six months later, figures were released that 4 million new subscribers to Netflix alone were recorded in first quarter of 2021, down from the year before but still rising.

Ofcom said an ‘accelerated shift’ from TV channels to streaming services was looking like one of the ‘most significant long-term impacts’ of the pandemic.

And indeed, as more and more of us login to our phones and tablets for TV, rather than plug in our aerial, one must ask whether geography still plays a role when accessing content?

The simple answer is yes; and some users learnt this the hard way on 1 January 2021.

We don’t talk much about Brexit anymore (at least nowhere near as much as before) but it was the fact that the UK was no longer part of the EU, which meant Sky had to inform its users that they “won’t be entitled to stream Sky outside the UK using […] apps”.

They explained “certain rules mean people within the EU can stream content across all EU countries” but that this would no longer be the case for UK holiday makers as well as British expats with residence in, say, Spain. Leaving the EU’s Digital Single Market meant cross-border portability of online content for the UK ceased to apply.

This change affects lots of online video, music and entertainment services, not just Sky.

It also does not only impact those individuals who can’t keep watching Line of Duty from their hotel room, or (deep breaths fans) can’t watch the live Premier League games that air on Prime Video from any European country, as a visitor or resident.

No, it also impacts the whole UK creative content industry, which will find their shows excluded from being made available to EU customers – thus losing out on profits.

To make matters worse, last month media reported that as a further consequence of Brexit UK content could be excluded further in future.

Changes to the EU’s audio-visual media services directive (AVMS) propose a majority of airtime must be given to European content on terrestrial television and it must make up at least 30% of the number of titles on streaming. An EU consultation sought to calculate the inclusion of different origin content in such quotas.

The proposal in front of EU officials concludes that including UK content would lead to a “disproportionate” amount of British programming on European television.

The Commons Foreign Affairs Committee asked UK negotiator Lord Frost about this who said any such move was still a long way from becoming EU policy. He explained backchannels were negotiating and that UK Government “are not in favour of that […] but obviously if the EU choose to harm themselves and their viewers by excluding some categories of UK content, we can’t stop them.”

As we head out of lockdown and the weather improves, binge-watching is no longer the number one source of entertainment for Britons and increasing news reports estimate that the 'pandemic boom' is over. But once implemented the AVMS Directive excluding UK content from quotes would particularly hit British drama, often financed only due to pre-sale of international rights to shows such as Downton Abbey and others. Already, the scrapping of the cross-border portability rules means BritBox content is no longer available anywhere outside of the UK.

Physical supply chains may be more tangible to report on, but it’s worthwhile keeping an eye on this initiative which will likely be taken further when France takes over the rolling presidency of the EU in January. A midterm review of the AVMS directive is also due in three years’ time, touted to be the point at which any changes could come into force.

While this seems far away, this could shape how viable films and TV shows are to UK producers who have long lead times on planning and executing filming and production which in turn impacts a whole industry of creatives, from actors to sound designers. So maybe don’t count on that 6^th Season of the Crown (don’t worry Season 5 is still anticipated for 2022).