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Media regulator Ofcom will take over the regulation of video on demand services, but will delegate it to an industry-formulated co-regulator, the Government has said.

The Government has published details of how it will ensure that the UK complies with the European Union's Audio-Visual Media Services (AVMS) Directive, which extends regulation to television-like programmes regardless of the medium used to show them.

The Directive means that programmes distributed on the internet or mobile phones will be regulated in the same way as those that are traditionally broadcast. The Directive demands that state regulation replace industry self-regulation, but the Government has said that it will create a system of industry regulation backed by existing communications regulator Ofcom.

"The Directive does not allow us to rely on self-regulation, but it is right that industry should be allowed and encouraged to set up and manage its own regulatory arrangements as far as possible, as it has done very effectively since 2003 through the self-regulatory body, the Association for Television On Demand," said Andy Burnham, Secretary of State for Culture, Media and Sport.

"Ofcom will be given powers to regulate UK video-on-demand services so that Ofcom can then designate, and delegate powers to, an industry-led co-regulatory body to regulate programme content in these services," said Burnham in a written statement.

"In the light of these decisions, the Government urges video-on-demand service providers to work together to finalise the details of the new co-regulatory arrangements," he said.

The AVMS Directive replaces the Television Without Frontiers Directive and is intended to ensure that regulation is appropriate in an age where video content is distributed via the internet as well as via the broadcast airwaves.

The Directive provoked controversy by extending state regulation to internet video, but it only applies to television-like material, and not to user-generated videos such as those commonly posted to sharing sites like YouTube.

Burnham said that the Directive's definition of what is regulated will be passed straight into UK law.

"The definition is narrow and covers only mass media services whose principal purpose is to provide television-like programming to users," his statement said. "The co-regulator will be able to issue guidance on the interpretation of the definition and on the services which fall within its scope. Those whose role is only to provide access to other providers’ video-on-demand services will not be responsible for the content of those services."

Advertising in video on demand services will also be regulated, and Burnham said that this is most likely to be delegated by Ofcom to existing TV ad regulator the Advertising Standards Authority (ASA).

For content and for advertising, Ofcom will remain the ultimate regulator, able to deal with serious or repreated breaches of the rules. The Government calls these 'back stop' powers.

The Directive bans product placement but allows Governments to legislate for it in certain circumstances. Burnham said that the Government had decided not to allow the in-programme advertising.

"No conclusive evidence has been put forward that the economic benefit of introducing product placement is sufficient to outweigh the detrimental impact it would have on the quality and standards of British television and viewers’ trust in it," he said.

The Government will put an Order before Parliament to transfer its decisions into law before the end of the year. The deadline for the implementation of the Directive is December 2009.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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