Out-Law News 4 min. read

VOD regulator wrong to deem paper's video content TV-like, Ofcom rules

The UK's video-on-demand (VOD) regulator has reversed its previous rulings that videos on newspaper websites were subject to its regulation after Ofcom said it was wrong to rule that The Sun's video content was subject to VOD rules.

On Wednesday Ofcom, the UK's media regulator, said that ATVOD had erred when concluding that material made available via the 'Sun Video' website banner was 'TV-like' and therefore subject to ATVOD regulation. The Sun had appealed to Ofcom to overturn ATVOD's ruling.

ATVOD said that as a result of Ofcom's ruling it was pro-actively reversing previous rulings it had made about video content produced by other online publishers.

"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 said in a statement.

Ofcom said ATVOD had not given enough consideration in the Sun case to content on The Sun's website as a whole when making its ruling and that "in itself" the video section was not an on-demand programme service (ODPS). The Sun had claimed that video content it posted were not story-boarded and included "virals" and "creature of the internet" material which were not likely to feature in the same form on TV.

"Ofcom has decided that the reasons and evidence ATVOD relied upon in its determination were not sufficient for it to decide that the Video section of The Sun’s website was an ODPS. In addition, Ofcom considers that, in the Determination, too much focus was placed on the 'Sun Video' section of The Sun’s website," Ofcom said in outlining the appeal decision (47-page / 462KB PDF).

"In the determination it appears to have considered that section of the website, and certain material in it, without looking enough at the whole of what was provided on the website and considering whether there is anything amongst that material which is a service whose principal purpose is the provision of TV-like programmes. Ofcom therefore upholds News Group’s appeal, and sets aside ATVOD’s determination," the regulator said.

"Ofcom’s view ...  is that the Video section of The Sun’s website was not a service having the principal purpose of providing audio visual material. Ofcom’s decision that the relevant section was not an ODPS should, therefore, be substituted for ATVOD’s. Ofcom has also, given the importance of the issues raised, considered the current contents of The Sun’s website. Ofcom’s assessment is that, in itself, the Video section of the site is not an ODPS. Ofcom also makes a decision to that effect," it said.

Ofcom appointed ATVOD to be the primary regulator of VOD content last year after changes to EU communications laws ordered member states to establish regulatory control over material broadcast over the internet.

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.

Under the Communications Act 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.

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.

Ofcom said that ATVOD should assess all content that internet publishers produce in order to determine whether they are providing an on-demand programme service that should be regulated.

"The approach that should be taken ... is to consider the whole of what is provided: in this case the written content and audio visual material on The Sun website. The question to consider is whether there is anything amongst that material which is a service whose principal purpose is the provision of TV-like programmes. In other words, it is only possible to define the scope of a service, and whether it could be an ODPS, by identifying the principal purpose(s) of what is provided (and any ancillary purposes)," Ofcom said.

"It is also necessary to take a step back and ... consider whether: the material is likely to compete for the same audience as (linear) television broadcasts; and the nature of the material, and the means of access to it, would lead users reasonably to expect regulatory protection," the regulator said.

Newspaper websites can be deemed to be providing an ODPS "if the provision of that material could itself be identified as a service whose principal purpose was such provision," Ofcom said.

Online publishers that present, style and market their video content in a similar way to a TV channel, make video services available via a separate homepage or archive section of the main site and mostly contains video of "substantial duration" are more likely to be deemed as ODPS providers than if short-length clips are embedded in individual articles, Ofcom said.

"Most people will recognise that defining the scope of new regulations in a fast-moving market is a complex and difficult task," Pete Johnson, ATVOD chief executive, said. 

"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," he said.

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