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Media companies that provide video-on-demand (VOD) services are responsible for ensuring compliance with VOD advertising rules when advertising appears as a direct result of a user choosing to view VOD programmes, the Committee of Advertising Practice (CAP) has said.

Those media service providers are not responsible for complying with VOD advertising rules in circumstances where advertising appears that is not prompted by viewers' programme selections, it added. CAP is responsible for writing the Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). The Advertising Standards Authority (ASA) monitors compliance with the Code.

The CAP Code contains rules that advertisers, generally, have to adhere to and prohibits firms from making misleading claims or causing harm or offence to the public subjected to their promotions, among other things. However, the Code also contains a dedicated section (3-page/30KB PDF) on advertising within VOD services that places certain responsibility on media companies providing those services over advertising content.

Among the VOD advert rules that those organisations must comply with are those requiring ad content to be "readily recognisable" and non-discriminatory not likely to incite hatred. Advertising of tobacco products or prescription-only medicines are prohibited and there are also restrictions on when ads promoting alcoholic drinks can be used. CAP has now issued a new 'help note' that sets out examples of when the media service providers of VOD programmes will be responsible for advertising around VOD content.

"If advertising appears which is not as a result of the viewer selecting a programme to view, it will not be subject to regulation in accordance with the rules [around adverts in VOD services set out in an appendix to the CAP Code," CAP said in the help note. (3-page/98KB PDF) "For example, advertising on navigation pages, such as a list of the programmes that are available to view, which appears before the viewer has selected a programme to view, is outside the scope of [those rules]."

"Advertising that can be viewed as a result of the viewer selecting a programme to view is subject to the rules ... This includes pre- and mid-roll advertisements that are displayed when the viewer selects a particular programme. Advertisements need not be themselves audiovisual in order to fall within the scope of [the VOD advert rules under the CAP Code]," it added

"All advertising that is displayed as a direct result of the viewer’s choice of programme is covered by [the VOD advert rules]; so, for example, a banner advertisement that is targeted to a viewer who has chosen to view a particular programme would fall within the scope. A banner advertisement that is not displayed because the viewer has chosen to view a programme would not be considered by the ASA under [the VOD advert rules] (but is subject to the rules in the rest of the CAP Code.)

Who's watching whom?

The formal regulation of content that appears on VOD services is the responsibility of the Authority for Television on Demand (ATVOD). Under the UK's Audiovisual Media Services (AVMS) Regulations companies are required to inform ATVOD when they operate an on-demand video service online. However, only companies with editorial responsibility for the content are required to provide this notification. Those companies must pay a licence in order to broadcast the material and are bound by the terms of the AVMS Regulations.

The AVMS Regulations were introduced in the UK to update the Communications Act in order to meet the requirements of the EU's AVMS Directive. The Directive provides a European-wide standard on governing audio and visual content that is under the editorial responsibility of a media service provider.

Ofcom appointed ATVOD to be the primary regulator of VOD content in the UK in 2010. Material subject to regulation does not include all internet video. The rules apply only to television-like services delivered on demand, not to user-generated videos such as those that appear on YouTube.

The law states that video services qualify for regulation if "its principal purpose is the provision of programmes the form and content of which are comparable" to that "normally included in television programme services"; if it has a person who is editorially responsible for it; is based in the UK; and is available on an on-demand basis made available for use by members of the public.

Under the Act an organisation with editorial responsibility is one with "general control over what programmes are included in the range of programmes offered to users; and over the manner in which the programmes are organised in that range". The companies do not have to have control of content for individual VOD programmes or over how they are broadcast or distributed in order to be deemed as editorially responsible for the material.

The material that does fall under ATVOD's regulation must conform to some of the standards expected of broadcast television. It must not incite racial hatred; harm under-18s; or break rules on sponsorship or product placement.

CAP's help note illustrates that whilst media service providers may not necessarily be 'editorially responsible' for VOD content their service shows, they may still be held responsible for compliance with the CAP Code by ASA for ad content triggered by users of their services.

In a ruling earlier this year Ofcom said that organisations that share control over the content of video-on-demand (VOD) programmes should write contracts that set out who has overall editorial responsibility for the material. The case concerned a dispute over whether three entertainment companies or Virgin Media was 'editorially responsible' for the content produced by the entertainment companies that was available on Virgin's VOD service.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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