Ofcom overturns three ATVOD rulings

butterfly-squirrel-edit-odps-or-notOfcom had a busy start to the year with a number of decisions relating to appeals of previous ATVOD determinations. ATVOD is the co-regulatory body for editorial content in on-demand programme services in the UK.

Playboy TV and Demand Adult were both fined for ´recklessly´ failing to restrict under 18s from accessing their on-demand adult content, and Ofcom overturned three earlier determinations by ATVOD. These specifically related to the long awaited decisions on two BBC YouTube channels for BBC Food and Top Gear, and Channel Flip.

Although these additional decisions add further shape to the definition of what constitutes an on-demand service as defined by the Audiovisual Media Services Directive, (AVMS was implemented into UK law in 2009 and 2010), the definition of what is and is not in scope is still shifting. Hence the determinations still do not give wholly definitive clues as to what´s in and what is out, meaning which services have to notify and will be treated as regulated services under AVMS.

One of the key points turning points for ATVOD in making their original determinations was to look for the presence of any professional or semi-professional graphics and or production qualities within the video such as music, cast, title and closing credits. Given today´s wide range of software available to the general public for accomplishing precisely such tasks this seems implausible as criteria for what should reasonably considered to be TV like.

In both the BBC and Channel Flip cases, Ofcom decided the that content was not comparable to ´TV like´ services, using as the basis for its conclusion research it published in October 2012. This research gave Ofcom a better understanding of what types of programming consumers considered to be ¨TV like¨ and thereby warranting giving the public regulatory protection.  This legal interpretation by SNR Denton does a good job explaining the decisions made by Ofcom in the recent appeals. The SNR Denton piece explains how Ofcom went back to consider the wording of the original  AVMS Directive in making their decision, whereas ATVOD only looked at how the UK Regulations were worded.  It will be interesting to watch how and if a more narrow definition of scope emerges.

The number of services in scope currently stands at 211, though projections as recent as last year considered it would never go beyond 160 or so. It also remains a mystery as to why porn websites are caught by the AVMS rules in the UK, which, as described above, is meant to deal with ´TV-Like´ on-demand programme services. Clearly the services in this list are not all of the same ilk, even though one completely understands that this is a problem of enormous proportion in terms of protecting children. True, something must be done, but AVMS was simply not intended to be that blunt instrument.  ATVOD recently testified to the House of Lords on this very matter, and made recent noises over their intention to place heavier reliance on the Obscene Publications Act and put greater pressure on payment processors for those porn websites originating abroad, and therefore out of the jurisdiction of ATVOD.

It should be interesting to see how scope plays out in the scheme of things.

These latest developments represent the fourth instance of Ofcom overturning an ATVOD decision, counting also The Sun video decision of December 2011. While in Sweden, in contrast, four newspapers were determined by the Swedish regulator to be in scope of AVMS, last October. Report here.

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