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Top Gear isn't TV, not when it's on YouTube

Ofcom overrules streaming regulator

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Ofcom has overruled its appointed VOD regulator in deciding that chunks of Top Gear and BBC Food channel programmes found on YouTube don't constitute TV-like services and thus fall outside regulation.

ATVOD, Ofcom-appointed regulator of UK video-on-demand, decided that clips circulated by BBC Worldwide constitute TV content and thus fall under its regulatory remit. BBC Worldwide contended they're promotional and thus it had no need to register with ATVOD (and pay the requisite fee) so both parties toddled along to Ofcom, which has decided that programmes without credits aren't programmes all.

Ofcom is arbiter to the increasingly tortuous process of deciding what gets regulated, having appointed ATVOD (a private company) to deal with video-on-demand role as it tries to cope with the increasing fragmentation of television and the regulatory environment within which it exists.

It's easy to see that BBC iPlayer falls under ATVOD's remit, as does PlayBoy's video-on-demand service - which last week copped an ATVOD fine of £100,000 for failing to check the age of viewers properly.

Broadcast channels like BBC1 clearly fall under Ofcom, but things get more hazy once the internet gets involved - for example, Sports Tonight (Freeview 227) is delivered by IP, but it has a schedule, so it falls under Ofcom, while The Space (Freeview 232) lets viewers pick the show, so it falls under ATVOD.

ATVOD charges for registration, £10,000 for companies worth over £26m, and registration is obligatory so the decision about which services fall within its remit are far from academic.

BBC Worldwide uses YouTube to distribute content including segments from Top Gear and BBC Food programmes. Given the length of the clips (seven to eight minutes) ATVOD decided these were TV shows and thus registration was required. BBC Worldwide disagreed, arguing that Top Gear without the 'tween-segment prattling of Clarkson and his minions couldn't be considered a TV show at all, so it needn't register.

Ofcom sided with BBC Worldwide, citing the lack of credits as another defining factor in the Top Gear case, which hinged on whether the YouTube clips could be considered "programmes".

The promotional nature of the content wasn't relevant, as borne out by another appeal from Greystone Media, which argued it was giving away episodes from its Business Channel as promotions and thus didn't need to register with ATVOD - a view with which Ofcom disagreed as it’s the content which matters, not what's charged for it.

But both cases are symptomatic of the difficulties in controlling media in an internet age. We (almost) all agree that some level of regulation is required to control content, ensuring the protection of children and editorial independence, but the practicalities of doing that are still a work in progress. ®

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