Following on from the growing popularity and success of the Women’s Super League and the great form of the England’s Women’s Team, there is a real sense of anticipation and excitement ahead of the UEFA Women’s European Championship finals, to be kicked off this Wednesday by England’s Lionesses versus Austria.
In late April, the UK Government announced that the FIFA Women’s World Cup and the UEFA Women’s European Championships are to be protected by the UK listed events regime as “crown jewel” events – attracting the same status in the UK’s listed events regime as the men’s FIFA World Cup and UEFA European Championships.
These “crown jewel” events are viewed as being events of national importance and, in order to promote as wide an audience as possible, access to such events on free-to-air (FTA) TV channels or services has been protected by the UK’s listed events regime.
In light of these changes and also the broadcasting white paper recently published by the UK Government into the review of public service broadcasting more generally, this article considers the background, recent changes and potential further developments to the UK’s listed events regime.
The Broadcasting Act 1996 (the “Act“) provides the legislative basis for the UK’s listed events regime.
The Act empowers the Secretary of State to designate particular events as “listed events” from time to time. DCMS has indicated that such events should “have special national resonance” and contain an element which “serves to unite the nation, a shared point on the national calendar, not solely of interest to those who follow the sport in question“.
Listed events are divided into 2 groups:
Group A events – in essence, for which it is intended (as below) that live coverage is offered on a qualifying FTA channel or service; and
Group B events – in essence, for which live coverage may be shown on pay TV, but it is intended (as below) that highlights or delayed coverage is offered on a qualifying FTA channel or service.
As mentioned above, the confirmation from the Government that the FIFA Women’s World Cup and the UEFA Women’s European Championships are to be protected by the UK listed events regime as “crown jewel” events is a welcome addition.
The national interest in women’s football has certainly swelled in recent years. A record-breaking 28.1m viewers watched the BBC’s coverage of the 2019 FIFA Women’s World Cup, more than double the previous tournament. The Lionesses’ semi-final match against the USA was the most-watched, with a peak audience of 11.7m and peak share of 50.8%.
As such, it would seem that few could argue that these international women’s football tournaments have not attracted “special national resonance”. Significantly also, their addition, together with that of the Paralympic Games[1], has served to increase the diversity and inclusivity of the list of “crown jewel” events.
The current list of both Group A and Group B protected events (including the recent additions) is set out below.
GROUP A PROTECTED EVENTS
The Olympic Games
The Paralympic Games (added January 2020)
The FIFA World Cup Finals Tournament
The FIFA Women’s World Cup Finals Tournament (added April 2022)
The European Football Championship Finals Tournament
The European Women’s Football Championship Finals Tournament (added April 2022)
The FA Cup Final
The Scottish FA Cup Final (in Scotland)
The Grand National
The Derby
The Wimbledon Tennis Finals
The Rugby World Cup Final
The Rugby League Challenge Cup Final
GROUP B PROTECTED EVENTS
Cricket Test Matches played in England
Non-Finals play in the Wimbledon Tournament
All Other Matches in the Rugby World Cup Finals Tournament
Six Nations Rugby Tournament Matches Involving Home Countries
The Commonwealth Games
The World Athletics Championship
The Cricket World Cup – the Final, Semi-finals and Matches Involving Home Nations’ Teams
The Ryder Cup
The Open Golf Championship
Part IV of the Act distinguishes between two categories of TV services, depending on whether they satisfy the relevant “qualifying conditions“:
Those services that meet the qualifying conditions of being FTA and received by at least 95% of the UK population (the “First Category”); and
All other services which do not meet the qualifying conditions (including pay TV broadcasters / paid subscription services) (the “Second Category”).
The current list of First Category FTA TV services includes:
BBC One, Two, Three and Four
CBBC and CBeebies
BBC News and BBC Parliament
Channel 3 network (ITV, STV, UTV)
ITV2, ITV3 and ITV4
Channel 4, Film 4 and More 4
Channel 5
The Act currently prohibits TV services from either the First Category or the Second Category from showing live coverage of a listed event unless a TV service from the other category, which broadcasts coverage to substantially the same area, has also acquired relevant rights to coverage (taking into account whether the relevant event is a Group A or Group B event), save where Ofcom grants its consent.
Ofcom’s conditions for providing consent depend upon how the relevant listed event is categorised:
For Group A events, Ofcom will provide consent for exclusive live coverage if it is “satisfied that broadcasters have had a genuine opportunity to acquire the rights on fair and reasonable terms“; and
For Group B events, Ofcom will provide consent for exclusive live coverage if “adequate provision has been made for secondary coverage (i.e. highlights or delayed coverage)” by a broadcaster in the other category.
As these criteria for granting consent to exclusive coverage show, the listed events regime does not necessarily ensure that all listed events will be provided on FTA channels. Rather, it aims to ensure a fair process in the acquisition of the relevant rights. Ofcom publishes approved applications for exclusive coverage on its website.
In its recently published white paper, the UK Government recognises that additional reforms are required to further modernise the listed events framework particularly in light of rapidly changing media distribution technology and the consumption habits of viewers.
The issue of the scope of digital rights protection afforded to “crown jewel” events became a subject of public debate during the recent Olympic Games in Tokyo in light of the latest broadcasting rights deal between the IOC and Discovery. This deal, which is due to last until the Paris 2024 Games, permitted the BBC to make available two separate live streams from the Tokyo 2020 Games at any one time, but is a marked reduction from the volume of streaming content accessible via the red button or iPlayer for previous Olympic Games. For example, during Rio 2016, the BBC made available 4,500 hours of live action compared to only 350 hours during Tokyo 2020.
The recent white paper published by the UK Government points to certain gaps in protection offered under the current listed events regime with respect to digital rights. It then goes on to cite the hypothetical example of a “crown-jewel” Group A event, such as the Olympic 100m final, being broadcast live on a First Category TV Service, such as the BBC, during the middle of the night for UK viewers, and all digital on-demand / catch-up rights then being sold to a pay TV broadcaster without falling foul of the listed events regime.
Taking into account the comments made in the broadcasting white paper, it would seem that the UK Government is satisfied (for the time being at least) that the current list of events achieves the right balance between retaining FTA access to sports events for the public and allowing rights holders the freedom to structure their media rights arrangements as they deem appropriate.
However, in light of the recognition of transformational changes in digital media consumption trends and distribution technologies, it seems that further developments could well be on the way as to how the regime protects digital rights exploitation of listed events by FTA qualifying services.
Furthermore, given certain specific references in the white paper, as well as its overriding theme of the underlying review to “create a new golden age of British TV and help the nation’s public service broadcasters thrive”, the prospect of the listed events regime being modified to become a benefit specific to the public service broadcasters seems a realistic possibility in the future.
Rights holders and broadcasters alike, as well as the British public, will all have an interest in seeing how these matters develop.
[1] The Paralympic Games was afforded protection as a listed event in January 2020
Jack Wood also contributed to this article.
About this Author
Mike Llewellyn is a director in the Intellectual Property & Technology Practice and the Sports & Entertainment Industry Group.
Mike’s practice focuses on advising clients on the exploitation of commercial rights, with a particular focus on the sports and gambling industries on an international basis.
Mike acts for sports clients on a broad range of matters, including media and broadcasting rights; data rights; sponsorship and endorsement arrangements; event hosting; sports hospitality; and ticketing arrangements.
His gambling practice typically involves…
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