Newspapers Speak Out on New ATVOD Scope Guidance

ATVOD, the co-regulator for video-on-demand services in the UK, has published new guidance related to the ¨scope¨ of on-demand video services that are covered by the Audiovisual Media Services Directive (AVMSD) regulatory framework as implemented in the UK. The new guidance follows a public consultation which closed in December 2013 conducted in partnership with the ATVOD Industry Forum. The new rules are intended to provide greater clarity regarding which services are subject to the law, rather than changing the interpretation of scope entirely.

Overall, just three major themes emerged which were dealt with in-depth in ATVOD´s  Statement which summarises all the responses received and presents ATVOD´s final decision.

Those issues included the possibility of relaxing or streamlining the regulatory obligations that apply to certain types of On Demand Programme Service (ODPS), specifically catch-up TV services (rejected by ATVOD), and, a desire to have further background on ATVOD’s proposed approach to integration with other Member State VOD regulators, in order that the general principle that an on-demand service is only subject to one Member State VOD regulator is maintained, (eg, the country of origin principle ). These two points were raised in the response of the Walt Disney Company Limited.

In response to this,  ATVOD said: “In addressing any issues which arise from the implementation of the AVMSD to date, or which are likely to arise from the process of media convergence, ATVOD considers that it is important to preserve the country of origin principle which underpins the single market. If the country of origin principle currently throws up certain anomalies (such as different interpretations of what type of content “might seriously impair” under 18s, or a perceived lack of effective implementation of the AVMSD in certain Member States), and if such anomalies pose significant problems which require addressing, then the issues should be dealt with by agreeing the appropriate framework of protection required across all EU Members States and by ensuring that the framework is applied adequately in all EU Members States. This is not an argument in favour of a general ‘levelling up’ of standards, but an acknowledgement that where significant problems arise, a common approach is preferable to the greater fragmentation of standards that would quickly develop under a country of reception principle.¨ ATVOD was also in agreement to provide documentary support confirming jurisdiction in the UK to those service providers requiring it.

Of the 11 responses in total that were received, the loudest voices came from the newspaper publishing industry. Five respondents raised concern that Section 3 of the Proposed Guidance and, in particular, paras 3.11 & 3.12 did not properly reflect the relevant Recitals of the AVMS Directive and the Ofcom appeal decision in relation to Sun Video, and in doing so re-opened the debate about whether video content on newspaper and magazine websites might comprise an on-demand programme service (ODPS), as they are in Sweden. This issue was referred to by Guardian News & Media, News UK; the Newspaper Society / Newspaper Publishers Association, the Professional Publishers Association and the Telegraph Media Group.

The only modification agreed by ATVOD to the originally published guidance, however, was the addition of the following paragraph intended to clarify the position on ´online newspapers´:

“There is a difference between (a) an online newspaper offering video reports which supplement and sit alongside text based news stories, and (b) an online newspaper giving over a distinct section of its website to TV like programmes which have no clear and direct link to the broader  ‘newspaper’ offering and which could exist as a stand alone service.”

The newly adopted guidance (“the New Scope Guidance”) is published here and is adopted with immediate effect. Commenting on the new guidance, ATVOD Chief Executive Pete Johnson said: “The factors which determine whether a service is covered by the statutory regulations enforced by ATVOD are complex. The new guidance has been developed with stakeholders to ensure that it provides as much clarity as possible, especially to businesses – large or small – who are considering launching a service which offers on-demand access to audio-visual material.” A full statement together with all the related documentation on the consultation and the adoption of new guidance is published here.