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Ofcom will delegate video-on-demand regulation

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Media regulator Ofcom will delegate much of the oversight of video on demand services when a new European Union Directive comes into force in December. Ofcom has outlined which services will and which won't be covered by the new rules.

The Television Without Frontiers Directive has been replaced in Brussels by the Audio Visual Media Services (AVMS) Directive, which extends the power of regulation for the first time to internet video and video on demand (VOD) services.

The Directive was controversial until authorities made it clear that it would not apply to user-generated or amateur content such as short videos posted online, but only to 'TV-like' services.

Ofcom has now published its plans for regulating the new material. It said that an existing body, the Association for Television on Demand (ATVOD), would be reconfigured to take over regulation of the editorial side of the services. It said the Advertising Standards Authority (ASA) would regulate adverts on the services.

"The AVMS Directive requires that VOD editorial content complies with minimum standards," said Ofcom's plan. "In brief, these require that VOD editorial content: a) should not contain any incitement to hatred based on race, sex, religion or nationality; b) which might seriously impair the physical, mental, or moral development of minors is only made available in such a way that ensures that minors will not normally hear or see such content; c) should fulfil the rules on sponsorship laid down in the AVMS Directive; and d) may contain product placement, but only subject to conditions laid down in the AVMS Directive."

ATVOD told Ofcom that it would change its form and function to put itself in a position to regulate content. "By 19 December 2009, ATVOD proposes to undertake a range of tasks (e.g. recruit a new Chair and Chief Executive; publish revised complaints procedures; and complete the development of a new funding)," said Ofcom. "Ofcom is … proposing to designate ATVOD as the relevant co-regulator for VOD editorial content. However, as we also explain, ATVOD is carrying out further work to ensure that it would be ready to take on the relevant responsibilities by this date."

Ofcom said that it was happy to have the ASA regulate VOD content on the same basis on which it currently regulates television and press ads.

The consultation document on which Ofcom now seeks responses also outlined how it would define which content is to fall within the regulation and which will not.

"It was concluded [in Brussels] that the type of regulation that had hitherto only applied to television services should be extended to cover those services which have similar characteristics to television and therefore justify such special status," it said.

The Directive defines the 'on-demand audiovisual media services' that are to be regulated as "an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider".

Ofcom said that it wanted as few services as possible to fall under the new regulation, and that only those producing content, and not those simply passing it on, should be responsible for it.

"VOD services, rather than the underlying platforms which give access to the services, should bear the regulatory burden of the new co-regulatory regime," it said. "Most importantly, there should be a policy of minimal scope. Ofcom believes that it is the best way to secure a regulatory framework which works for consumers and industry."

It said that the regulator must consider these questions in order to decide what services should be regulated: "Is the service an ‘on-demand programme service’ within the meaning of the Regulations? Who has ‘editorial responsibility’ for that service within the meaning of the Regulations? Does that person fall within the jurisdiction of the UK for these purposes?" it said.

Ofcom has produced a list of services that are likely to be regulated. It includes the BBC's iPlayer; ITV Player; Channel 4's 4OD; Sky's television channels; and small special interest stations such as LiverpoolFCTV.

The consultation closes on 26 October.

See: The consultation (129-pg/1MB pdf)

Copyright © 2009, OUT-LAW.com

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

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