1.0 Introduction
In the United Kingdom, it is not lawful to watch television programmes as they are being broadcast unless you have purchased a TV Licence (which costs about £159 per year). Which sounds a nice, simple statement and surely cannot give rise to confusion, right?!
Wrong!
In this streaming, broadband age... doesn't the fact that I can watch a live episode of 'Cop Car Workshop' in my browser when visiting the Dave TV channel (see screenshot to the left!) mean that my PC is now considered a TV and therefore needs a licence?
And if that's the case, wouldn't my smartphone also need licensing? Wouldn't that indeed mean everyone needs a TV licence, no exceptions?!
Meanwhile, back with big boxes that genuinely look and unambiguously behave like televisions, if I simply have one plugged into a DVD Player and never use it to receive TV signals over the air... does that need licensing?
The questions proliferate from there -and every man and his dog seems to want to post varieties of nonsense about it on YouTube, mostly incorrectly! So, as someone who legitimately does not pay for a TV Licence, I thought I could helpfully explain when a TV licence is and is not required. The usual disclaimers about 'this is not legal advice, use at your own risk' apply, of course.
2.0 The Statutory Basis for the Licence
Before getting into the weeds of it, let's be clear that the TV Licence is a tax, levied by the government and authorised by Sections 363 to 368 in Part 4 of the Communications Act 2003. It is not a payment to the BBC (though over 80% of the funds raised by the tax are funneled to the BBC; the rest is used to pay for S4C and the entire OFCOM regulatory infrastructure), nor is it 'sold' by them, nor is it raised by Capita (the company the BBC have delegated TV licensing enforcement to). It's a tax, just like your National Insurance Contributions or Income Tax. The only difference is that it is a hypothecated tax, which means the funds raised by it are put into a separate, dedicated 'pot' rather than into the general taxation funds. The other unusual feature of this tax is that it is optional: if you fall into any of the categories that genuinely don't need a TV licence, you do not have to pay it. In this respect, it's a bit like the Prescription Charge: if you're not sick and don't need medicines, you don't need to pay that £9.65 tax either.
2.1 What counts as a TV Programme?
Anyway, let's just have a quick run-down of the Communications Act 2003. I'm actually going to start with Section 361, because that rather importantly defines what a 'TV Programme' as: any service which is made available for reception is offered or made available to members of the public, but a service is not to be treated as available for reception by members of the public if it is an on-demand programme service.
The explanatory notes to this Section of the Act helpfully add:
This section defines “available for reception by members of the public” in such a way as to exclude 'one to one' services made available on cable, satellite or by means of a multiplex service. Examples of such services include internet and video-on-demand services where an individual viewer requests an individual library item such as a film. However, any television service that is designed to be broadcast or distributed simultaneously, or virtually simultaneously, to its audience will be held to be “available for reception by members of the public”, even where the technical means of distribution is on a one to one basis.
And this therefore is the first point to grasp: a television programme is defined to be something that is 'made available for reception' by members of the public, even if the actual distribution mechanism is a fibre optic cable (say). However, if the programme is made available on a one-to-one basis, meaning that you are the one that initiates programme choice and the start/stop of the programme play, then that's called 'on-demand' programming and on-demand programmes are not considered to be 'available for reception by members of the public' in the way a 'free-to-air TV broadcast' would be.
A simple way to think of this distinction is: who controls when the programme stops and starts. Coronation Street, for example, would count as a television service 'available for reception by members of the public': it's broadcast by ITV on a schedule they control. Watch an episode of West Wing on Amazon Prime, however, and you are the one selecting the programme and saying when its playback should begin. That's not a 'TV service' for the purposes of the legislation.
It is this distinction, based in Section 361 of the Act, which gives rise to the oft-heard refrain 'Live TV requires a licence, on-demand programmes do not'. It is broadly true, though it is an over-simplification which we need to analyse further below.
2.2 The TV Licensing Sections
The meat-and-potatoes stuff regarding TV licensing is contained within Sections 363 to 368 of the Communications Act 2003, as follows.
Section 363 defines the need for a licence and the consequences of not having one:
- 363(1): A television receiver must not be installed or used unless the installation and use of the receiver is authorised by a licence under this Part.
- 363(2): A person who installs or uses a television receiver in contravention of subsection (1) is guilty of an offence.
- 363(3): A person with a television receiver in his possession or under his control who [...] intends to install or use it in contravention of subsection (1) [...] is guilty of an offence.
- 363(4): A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale. That practically means a fine with a possible maximum of £1000, though it's usually considerably less than that.
Section 364 authorises the BBC to issue licences; Section 365 establishes the legal basis on which licence fees can be set.
Section 366 sets out who may forcibly inspect premises to check on possible licence breaches. The relevant parts are:
- 366(1): If a justice of the peace [...] is satisfied by information on oath that there are reasonable grounds for believing that an offence under section 363 has been or is being committed [and] that evidence of the commission of the offence is likely to be on premises specified in the information, or in a vehicle so specified [then] he may grant a warrant under this section.
- 366(2): A warrant under this section is a warrant authorising any one or more persons authorised for the purpose by the BBC or by OFCOM to enter the premises or vehicle at any time (either alone or in the company of one or more constables); and to search the premises or vehicle and examine and test any television receiver found there.
Section 367 has been repealed (and relates to TV dealers anyway).
Section 368 is important, because it ties the need for a licence set out in Section 363 to the practice of watching TV Programmes (which we saw was itself defined back in Section 361). Specifically, Section 368(3) was replaced in 2016 by The Communications (Television Licensing) (Amendment) Regulations 2016. The relevant replacement text reads:
References in this Part to using a television receiver are references to using it for receiving all or any part of any television programme, or receiving all or any part of a programme included in an on-demand programme service which is provided by the BBC and that reference to the provision of an on-demand programme service by the BBC is to be read in accordance with section 368R(5) and (6).
So, earlier we simplified things to say 'live TV needs a licence, on-demand programming does not'. Section 368 now causes us to modify this: if you use the BBC's on-demand programming tool, iPlayer, then that counts as a use of a television receiver which would require a licence. Use anyone else's catch-up TV utility, though, and that does not trigger the need for a licence.
You will note, too, that apart from mentioning the BBC's specific on-demand programme service, the legislation is entirely silent on which broadcaster is providing live TV programmes. The licence requirement arises if any live TV programmes are watched, not just ones from the BBC. It is even the case that, for example, if you lived in Dover and were somehow to pick up a broadcast signal from a TV transmitter in Calais, that would count as watching live TV. Similarly, a resident of Holyhead that happened to pick up a broadcast from Dublin would need a licence to watch that: it counts as live TV if it is 'made available for reception by the public'. The legislation carefully does not add the words '...by the BBC'. A similar issue arises when, for example, a satellite dish is used to receive live broadcasts of 20:20 cricket from India: that the signal is from India is irrelvant. It's a signal intended to be received by the public and watching it would trigger the licence requirement.
3.0 Capability and Intent
An important question arises from the specific wording of Section 363(1):
A television receiver must not be installed or used unless the installation and use of the receiver is authorised by a licence under this Part.
The crucial bit is 'installed or used'. The legislation's use of 'or' at this point makes it clear that if a TV is capable of receiving live TV, then it needs to be licensed. It does not matter whether the TV is actually used for receiving live TV or not. It is not a defence, in other words, to say, 'yes, I know the TV set was tuned in to the BBC, and I know the aerial cable was on the floor 2 feet away from the telly, but I promise you on my mother's grave, I never used it to watch the BBC'. If your TV is installed in such a way that it can readily receive TV signals, then the statute says it needs a licence.
The key point, however, is the nature of the installation. The mere fact that a TV set contains a TV tuner which has the capability to receive a TV signal is not the matter at issue. If one were to perform the 'initial setup' routine on a freshly-purchased TV and during that process you were to say the TV is situated in Australia, so that the TV started searching for (and not finding) Australian TV frequencies, then though the TV set is inherently capable of receiving live UK TV signals, it is demonstrably not able to do so without a wholesale re-installation. Such an installation would not require a TV licence, therefore.
Thus, if you buy a TV set intending to use it only for Xbox or watching DVDs or non-BBC streaming and catch-up TV services, that would not require a TV licence provided you made it physically impossible for the TV set also to receive live TV signals. That means: not plugging it into an aerial socket, not having an aerial cable laying around the floor nearby the set, de-tuning it or configuring it so that no live UK TV channels were tuned in and similar physical steps that make it clear this TV's mode of installation is such as to exempt it from the licensing requirement.
Merely claiming, 'but I never actually use it for watching live TV' is not a sufficient defence. The law is written so that the TV Licensing authorities do not have to prove you did watch live TV. They only have to demonstrate that "there are reasonable grounds for believing" (the wording comes from Section 366(1)) that the TV could be used for that purpose. Note, too, how low a threshold the burden of proof is in such cases. It's not 'beyond all doubt' or even 'on the balance of probabilities'. It is merely that 'reasonable grounds' exist for believing a TV might be in use for receiving live TV: that's enough to get a warrant to search your premises and establish the facts of the matter beyond reasonable doubt.
Finally, I draw your attention once more to Section 363(3): "A person with a television receiver in his possession or under his control who intends to install or use it in contravention of subsection (1) is guilty of an offence". It explicitly says that merely intending to watch live TV on an unlicensed TV set is an offence. One could well argue that assessing a person's 'intent' is problematic: it gets us into Minority Report territory, where we are assessing the content of people's minds, surely?! Well, the courts will assess intent by taking account of evident circumstances -so that again, for example: if a TV has been plugged into an aerial socket, the intent of the owner becomes clearer than if it is merely sitting in a room connected to nothing. I personally have an old flatscreen TV sitting in my garden shed in a cardboard box: my intent not to use it for anything very much can be reasonably deduced from the physical circumstances of its current existence! In short, it once again comes back to making sure that a TV cannot be used to receive live TV signals, rather than hoping that an assertion that it does not will carry weight (the court will not be interested in mere protestations).
A parallel issue arises from the fact that smart TVs these days often have the iPlayer app built-in: surely if the TV is capable of receiving catch-up programming via iPlayer, that makes it licensable? But then how would any smart TV not require a licence?! Well, the same sort of reasoning applies. Yes, the smart TV is physically and inherently capable of receiving programmes via iPlayer... but functionally, iPlayer only works if you log in to it -and that requires a BBC account. So, in the same way that a TV which is not tuned to UK TV frequencies and thus physically cannot receive live TV programmes is exempt from the licensing requirement, so a smart TV with iPlayer capability would be exempt from the licensing requirement if you could demonstrate a complete inability to even get past its login screen.
4.0 How would they know?
A common trope when discussing the licence online is, 'How would they know you're watching live TV or using iPlayer? If you simply don't talk to them or slam the door in their faces when the sales goons turn up on your doorstep, they'll never know, so you'll never be caught'.
As the discussion points in Section 3 above make clear, I hope, they don't have to know that you're actually watching live TV or using iPlayer. For obvious reasons, given that TV consumption usually happens behind solid brick walls, locked doors and closed curtains, the legislation's authors made it clear that capaability to watch live TV is all that's needed to make out the offence. This inherent capability can be rebutted, as already discussed, by the manner of the TV's installation: no aerial cable, not plugged in to the aerial socket, not tuned to UK frequencies, etc.
For the purposes of the 'reasonable grounds for believing' required to get a warrant to search your premises, it would be enough for a licensing agent to claim he heard something that sounded like a live football match playing in the background just before you were able to effect a door-slam in his face, for example. Or the strains of the Dr. Who theme at precisely the time that the Radio Times said the programme was being broadcast. A glimpse of a TV displaying the latest Strictly episode through a curtain would similarly be sufficient.
I will mention a personal anecdote, too: I had just told TV Licensing that I no longer needed a licence. I was expecting a 'goon visit' in response. I rehearsed like mad for at least two weeks how I'd say, 'no thank you' and door-slam in his face. I was ready. Then a nice, but completely anonymous, man pulled up in a car and I leaned out of an upstairs window to see who it was -at which point, he spoke to me, I spoke to him and a full-on conversation about me not needing a licence ensued! In other words, it's much harder than it sounds to not talk to the 'goons' - and the moment they are in conversation with you, they can gather 'situational' evidence that might get them beyond the 'reasonable grounds' threshold.
Do not rely on them not knowing, in other words. If you want to not pay the licence legally and with a clear conscience, physically configure your TV set as previously described so that you physically cannot (and thus genuinely do not) watch live TV programmes.
5.0 What about repeats?
Some people claim that watching a repeat broadcast of a TV show doesn't count as watching 'Live TV'. For the same reason, some people claim watching the Boxing Day broadcast of Zulu can't count as live TV, because the film was made in the 1960s!
Such ideas are irrelevant. Read the legislation again, carefully: at no point is the content of the TV programme referred to or mentioned even in passing. The licence is required for the mere reception of a live TV signal, regardless of the age or 'liveliness' of its content.
For the same reason, the +1 channels count as live TV: though it's re-playing the TV signal that was broadcast on the main channel an hour ago, it is nevertheless being broadcast now, to multiple people at once, in a way that doesn't give them one-to-one control over when the programme playback began. It therefore counts as a live TV broadcast, and watching it requires a licence.
6.0 Recording
Can you record a live TV programme without a licence? No. Again, the legislation is carefully worded to make installation or use of a 'television receiver' require a licence. A device that is capable of recording a live television signal must, definitionally, count as a 'television receiver', even if it is not on its own capable of acting as a 'television displayer'.
Can you, with a valid TV licence, record a program onto, say, a USB stick and give the stick to me, without a licence? Am I allowed to watch that programme in my unlicensed state? No. The trouble here is that pesky Section 361, which states that 'any television service that is designed to be broadcast ... to its audience will be held to be “available for reception by members of the public”, even where the technical means of distribution is on a one to one basis.' (Emphasis mine again). Yes, the passing of a USB from one individual to another counts as a 'technical means of distibution that is one a one-to-one basis'... but the nature of the TV programme explicitly doesn't change by virtue of it being supplied on a USB stick (or as indentations on a stone tablet, come to that) rather than over-the-air. If it was a TV programme before hitting the USB device, it remains a TV programme... and thus the licence requirement for me to view that content, on any device, kicks in.
7.0 Computers and Smartphones
All computers and smartphones have the capability to receive on-demand programming (via streaming services) ...and (more worryingly!) live TV programmes: look again at the thumbnail to this article, which shows that my PC's browser could be used to click on a Dave TV link that would open a live TV stream. Surely this can't mean that all smartphones and PCs are required to be licensed, can it?
Actually, by virtue of the The Communications (Television Licensing) (Amendment) Regulations 2016, regulation 6(1), it can. That regulation abolishes the distinction made in earlier regulations between "TV Receivers" and "Computer apparatus" that just incidentally happens to be able to displaying a live TV stream. The newer regulation makes it clear that a TV receiver is classed as any apparatus installed or used for the purpose of receiving (whether by means of wireless telegraphy or otherwise) any television programme service, or iPlayer content. So every device is covered, and it doesn't matter whether that device is receiving its signal direct from an over-the-air broadcast or via a fibre optic cable from your ISP (for example).
So, how do you avoid buying a TV licence if (as would be true for nearly everybody!) you own a computer or a tablet or a mobile phone? Easy: you make sure you don't have accounts with the service providers that make like TV programs available over the Internet, where those devices would be able to receive it. If you can't log in to Dave, or Channel 4 or Channel 5, then you can't use those services to watch live TV and thus cannot incur the licensing obligation.
However, this seems monstrously unfair if, for example, you want to take advantage of Dave's on-demand programming (which is available alongside its live TV offerings and which on their own would not require a licence to watch); or you want Amazon Prime's speedy delivery services (which obviously don't need a TV licence!), but find that this exposes you to the possibility of watching live Premier League football matches on the complementary Amazon Prime Video service (which would require a licence). In general, what do you do if you want to use the non-licensable aspect of such services but in doing so are exposed to features and capabilities which would require a licence? Well: there's no easy answer there, I think, other than to trust that the need to login to these services means that those services have a record of what you've watched and when -and that you could therefore requisition those records in the event of an attempt to prosecute you for licence evasion. You'd be able to provide a defence to the charge of watching live TV without a licence, though maybe not forestall a prosecution in the first place, in other words.
8.0 Legal v Moral
If you want to avoid having to pay for a licence legally, therefore, you may have and can install as many TVs, monitors and smartphones as you like in your house and about your person, but:
- Don't have a TV aerial on your roof
- If you have a TV aerial on your roof, don't have a coaxial aerial cable plugged into the aerial socket
- If you have a coaxial cable plugged into the socket, don't tune your TV set to make the reception of live TV programmes possible
- Don't have a BBC account
- Don't have other accounts with any Internet service providing live TV programmes
- If you must have accounts with Internet services that provide a mix of catch-up and live TV programmes, be sure not to use the live TV programme capability -and check with said service providers ahead of time whether they will provide you with your viewing history if and when requested
It is perfectly possible that you find the whole idea of a TV licence (or tax) an outrage in this day and age, and a morally reprehensible thing. You are entitled to that view -but need to keep in mind that morals and the law do not go hand-in-hand. That which is legally mandated may be very immoral, and that which is moral may be legally prohibited. In this case, don't let your 'moral emotions' cloud your judgment. The standard is the law, not your feelings on the subject, nor your sense of morality.
If you watch or record live TV supplied by anyone at all; if you watch anything on iPlayer; you are legally required to pay the TV tax for the privilege. If your TV set is configured so that it is readily able to watch or record live TV, too, you must also pay the tax if you don't want even a chance of a criminal conviction and fine. (By the way, it is a criminal conviction: I've seen people claim it's merely a civil offence. It is not. It is an unrecordable criminal conviction, which means it won't go on the Police National Computer, probably, but you will likely still be entered into your local police force's database). Claiming that BBC programmes are rubbish, or left-wing propaganda, or anti-British, or beserkly-woke will not save you in the Magistrate's Court: the wisdom of the TV tax is not a matter of debate there. Law is starkly black-and-white like that, I'm afraid.