The British Authority for Television On Demand (ATVOD) has recently ruled that the publication of video content on a newspaper website (The Sunday Times) meets the definition of “on-demand programme service”, and therefore is subject to the obligations set forth by the Communication Act 2003 for such services.
This represents one of the first decisions in application of the Audiovisual Media Services Directive (AVMS 2007/65/CE, now codsified in the 2010/13/EU Directive), the new european regulation for Audiovisual Media Services that aims to respond to technological developments, uniforming the rules for linear and on-demand services.
In order to implement the guidelines laid down by the AVMS Directive, different european countries and different regulating authorities have adopted slightly diverse approaches. To some extent, the rules can depart from the primary source (the directive) and sometimes be stricter than it.
The requirements of the the AVMS Directive were transposed into UK law with the Audiovisual Media Services Regulations, which in 2009 and 2010 amended The Communications Act 2003.
The Act confers functions on the Office of Communications (Ofcom) and gives it power to delegate some of those functions.
On 18 March 2010, Ofcom delegated to the independent co-regulator ATVOD the power to determine which services fall within the definition of “on demand programme services” (ODPS) and the power to ensure that such video on demand services would comply with their obligations, in relation to the content to which they provide access.
The Authority’s decision is relevant in order to highlight the UK law’s peculiarities in the implementation and enforcement of these aspects.
The first interesting aspect concerns the scope of the regulation, i.e. how to identify the services subject to the regulation.
The Sunday Times Video library is a section of the Sunday Times website, and it offers authenticated users the possibility to view different types of videos, from local and international news to insights regarding sport or style, all ranked in categories.
In the european Directive, the definition of an on-demand audiovisual media service is provided in article 1, and the meaning is explained in the Recitals.
In the UK legislation these indications were transposed in section 368(A)1 of the Communication Act.
According to that section of the Act a service is an ODPS whenever five requirements exist:
(a) The principal purpose of the service is the provision of programmes the forms and content of which are comparable to the form and content of programmes normally included in television programme services.
In this respect the Authority held that the Video Library constitutes a service in its own right, even though it sits alongside an electronic version of a newspaper. In fact, it is an activity with an economic or commercial character, it can be viewed “without reference to the newspaper offering” and “the viewer is not invited to consider the content as subsidiary to the online version of the print newspaper”. Therefore, according to ATVOD, the service is distinct from the online version of the newspaper.
Furthermore, the independent co-regulator considered the programmes as “TV like”, for the content is similar to what is normally included in TV programmes (reviews of cultures, motoring, etc) and it follows the conventions of TV programmes (such as presenters, music soundtrack, on-screen captions).
ATVOD also considered this “TV like” activity as the principal purpose of the service, for the connection to the newspaper is not sufficient to constitute an ancillary part of the online magazine.
(b) Access to the service is on demand
The Sunday Times Video Library met also this requirement, as it can be watched at any time by the viewer that has subscribed.
(c) There is a person who has editorial responsibility for it
For the definition of “editorial responsibility”, the UK Regulations adopted different wording from that in the Directive. For example they use the phrase “general control” instead of “effective control”. Nevertheless the scope is consistent with the Directive.
In the specific circumstances the provider has selected and organized the programmes into a coherent catalogue of viewing options, hence it has editorial responsibility for the service.
(d) Programmes are publicly available.
Anyone can view the programmes on The Video Library, provided that he has access to the internet and pays the required fee.
(e) The provider of the service is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Service Directive
The registered office of Times Newspaper Ltd is based in London.
For the above mentioned reasons ATVOD found that the Sunday Times Video Library respected all the requirements.
What is to be noted is that according to ATVOD the online Video Library of a Newspaper or Magazine can fall within the meaning of “service” in its own right, and does not necessarily constitute a “part of a service”, as argued by Times Newspaper Ltd.
In fact, neither the Communications Act 2003 nor the AVMS Directive require or permit a part of a service to be treated as an ODPS.
However, the Scope Guidance, released in December 2009 by Ofcom with the aim to clarify the services subject to the rules, states in paragraph 2.4 that an on demand programme service “will only be caught by the definition in section 368 of the Act to the extent that it provides access to programmes that are tv like” and this suggests that in some cases a mere part of a service can be treated as an ODPS.
Another remarkable point concerns Recital 28 of the AVMS Directive, reading “The scope of this directive should not cover electronic versions of newspapers and magazines”. The provider argued that the Video Library is part of an electronic version of the newspaper and that “ATVOD/Ofcom’s view does not fully address the point that Recital 21 makes”, which is not concerned with the identity of the service provider, but with the nature of the service.
To this objection the Authority does not make any specific remark, but in paragraph 3.75 of the Ofcom’s “Regulation of video on demand services” (a consultation paper released by the regulator, which also contains the Scope Guidance) it can be read that if a service made available on the website of a print publication fulfills the relevant scope criteria, then it is likely to be in the scope. This means that, according to Ofcom, a service can not fall outside of the criteria “merely because of the industry sector from which the organization providing that service is drawn”. In particular, the Regulation underlines that under the new regulatory regime there is no “class” of video on demand services that can be excluded, if all the requirements subsist.
To this regard, it is also noteworthy that in the UK Regulations there is no requirement related to a minimum amount of earnings for a service in order to be qualified as an ODPS.
In Italy for example, this amount has been set to 100’000 euros, and scholars consider it a relatively low limit.
The second step is to address the rules and duties applying to ODPS. If a service fulfills the criteria, it must comply with all the applicable requirements provided by the Authority.
The Communication Act adopted stricter rules than the ones defined in the AVMS Directive, in relation to video on-demand editorial content and advertising.
In the case at hand, the relevant additional duties are represented by:
- The obligation to notify the regulator of the provision of the service before beginning to provide it.
- The obligation to pay an annual fee to the Authority.
- The obligation to retain a copy of every programme included in the service for a certain amount of days after the program ceases to be available for viewing.
Contrarily, other european countries such as France, Germany and Sweden do not require a provider of Audiovisual On-Demand Services to notify, register or obtain a license in order to provide the service.
Despite the indications set out in the Directive, the extensive Recitals and the national rules, it is not so easy and straightforward to identity an on-demand programme service in the concrete circumstances. The risk is to impose an unreasonable burden on freedom of information and communication. This decision appears significant and quite detrimental for this kind of online services, in fact Times Newspaper Ltd requested an appeal by Ofcom of ATVOD’s decision, but if this were to be upheld by Ofcom, publishers would have to pay £2,900 a year for each on demand service.