Ofcom Appeal Decision Good News for Periodicals

The long awaited Ofcom decision on whether the TV sections of newspaper and magazine websites fall into scope of the AVMS regulations in the UK has been published today, 21 December 2011, and it looks like good news for periodical publishers. ATVOD immediately issued a response to the Ofcom decision, stating that it would immediately ¨withdraw determinations in relation to other newspaper websites.¨

The appeal had been made by News Group Newspapers Limited against a notice of determination by ATVOD that the provider of the ¨Sun Video¨ was an On-Demand Programme Service (ODPS) under AVMS regulations transposed in the UK Communications Act 2003. Other pending appeals had been lodged by other periodicals including the Sunday Times Video Library, Telegraph TV, The Independent Video, FT Video, Guardian Video, Guardian You Tube, News of the World TV and Elle TV.

The Ofcom decision today acknowledged that the appeal raised ´important a difficult questions under complex new legislation and for which no precedents exist.¨ A number of other appeals had been made relating to similar cases involving audio visual material on newspaper and magazine providers´websites.

The determination made by ATVOD contained a statement as to why ATVOD considered that the service was an ODPS, and ¨relied as evidence on references to three pieces of audio visual material in the relevant section of the website and screen grabs of two pages taken from that section.¨

Ofcom decided that ATVOD´s reasons and evidence were not sufficient, and that too much focus was placed on the ¨Sun Video¨ section of The Sun´s website and not on the site as a whole and considering whether ´there is anything amongst that material which is a service whose principle purpose is the provision of TV-like progammes.¨

Ofcom therefore upheld News Group´s appeal and set aside ATVOD´s Determination.

The full text of the determination, which can be accessed here, also sets out the current and earlier positions that Ofcom has taken on how to evaluate the provisions of the Audio Visual Media Services Directive in the context of the UK Communications Act. It notes that it is also possible that ´a service not presently within the scope of regulation could in future be so´. Some aspects of The Sun´s website have developed further since ATVOD´s Determination.

¨Even if it is not doing so now, News Group’s provision of audio visual material might develop further still. Though by no means an exhaustive indication, that provision would be more likely to fall within the scope of regulation if, for example:
a. it continues to be a separate collation or catalogue of audio visual material available on its own section of The Sun’s website;
b. it is presented to users as a distinct television service;
c. there are fewer access and content links between the written content and the audio visual material; and
d. more of the audio visual material was of greater duration and/or included complete programmes of the kind broadcast on linear television programme services.¨

According to a statement published today on the ATVOD Website:

ATVOD has acted promptly following a decision by Ofcom today to uphold an appeal by News Group Newspapers Ltd. against a determination by ATVOD that The Sun’s website included a video on demand service which fell within the video on demand regulator’s remit. Given the similarities between The Sun case and other newspaper and magazine websites, ATVOD has today announced that it will withdraw its Determinations that The Sunday Times Video Library, Telegraph TV, The Independent Video, FT Video, Guardian Video, Guardian You Tube, News of the World TV and Elle TV were On-Demand Programme Services.

ATVOD had held that The Sun’s internet video offering met the definition of an On-Demand Programme Service, set out in the Communications Act 2003. The Ofcom decision is that the Sun Video section of the website (previously styled as ‘Sun TV’) is not subject to regulation by ATVOD.

The appeal judgement is the third made by Ofcom this year, the communications regulator having previously backed ATVOD’s rulings that ‘adult’ websites Demand Adult and Climax 3 fell within the scope of the new rules which include a requirement that children are protected from material which might seriously impair their development.

ATVOD Chief Executive, Pete Johnson, said:

“Most people will recognise that defining the scope of new regulations in a fast-moving market is a complex and difficult task. The appeal system  is a vital part of  the process, giving users and providers of video on demand services greater clarity over where the new protections for consumers do and do not apply. Given the clear similarities between The Sun and the other newspaper and magazine websites under appeal, we have moved quickly to confirm that the Determinations in relation to those services are being withdrawn with immediate effect.

We will now reflect further on the appeal judgement and consider any implications it may have for any other past and future rulings on whether a service falls within ATVOD’s remit.”