Customers who access programmes via EU satellite broadcasting services to avoid a charge for a UK service will need to stop after Brexit.
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Currently, UK consumers can use legitimate satellite decoder devices intended for use in the EU to view programmes otherwise included in UK broadcasts. The reason for accessing the EU broadcasting service does not matter.
Actions after Brexit
From exit day, it will become an offence to use satellite broadcast decoder devices intended for EU audiences to access a programme included in a broadcast made from the UK with the intent of avoiding a charge associated with the programme. This is already the case for satellite decoder devices intended for non-EU audiences.
If you do this in the UK you will need to:
- stop using EU satellite decoder devices to avoid committing an offence under section 297
- consider instead purchasing the relevant UK satellite broadcast package to view the programmes.
Using EU decoders for purposes other than to avoid a charge
The change will not affect those who use EU decoder devices to access programmes included in UK broadcasts for purposes other than the avoidance of a charge.
For example, expats living in the UK who use decoder devices intended for EU audiences to view programmes in their native language are not, nor will they be, covered by the offence of section 297, provided there is no intent to avoid any charge associated with the programmes.
Satellite broadcasters often restrict their broadcasts on a territorial and paid for basis by encrypting their transmissions. To access a broadcast, consumers purchase or lease ‘decoder devices’ (such as set top boxes), which convert the encrypted transmissions to a watchable form.
Illicit (for example, cloned) decoder devices or decoder devices intended for use in another country are sometimes used to access programmes that are otherwise available via a legitimate, UK broadcasting service. Section 297 of the Copyright, Designs and Patents Act 1988 (CDPA) makes this a criminal offence when done dishonestly to avoid paying a charge to the UK broadcaster.
In 2011, the Court of Justice of the European Union ruled that section 297 should not apply where it prevented persons in the UK from using legitimate decoder devices intended for use elsewhere in the EU, even where they do so to avoid a charge for the relevant UK broadcasting service.
This is because such a restriction is inconsistent with the EU’s ‘freedom of services’, provided by the Treaty on the Functioning of the European Union.
What is changing
The government is disapplying provisions on freedom of establishment and the free movement of services after Brexit. See The Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019 for further information on freedom of establishment and freedom of services.
Under these changes, the existing restriction to the criminal offence defined in section 297 of the CDPA will fall away. It will become an offence to use satellite broadcast decoder devices intended for EU audiences to access a programme included in a broadcast made from the UK with the intent of avoiding a charge.
This change will not weaken or change in any way the illegality of illicit decoder devices for the acts specified by section 297 (for example, cloned, counterfeit, or stolen decoder devices).