Thursday, 5 January 2012

Avoidable ATVOD

Following OFCOM’s ruling in the Sun Video case, what does the future hold for ATVOD? 

ATVOD sees itself as a model for co-regulation, whose expertise can usefully inform the forthcoming Communications Green Paper: 
“Our experience is that co-regulation of video on demand services has proved capable of yielding nimble, economical solutions and the promise of establishing a broad consensus around light touch regulation.” (Letter to Minister for Culture, Media and Sport, 28 June 2011)
Others view it differently.  In July 2011 Lord Clement-Jones criticised ATVOD in Parliament as expensive, too wide in scope, far from light touch and already giving rise to litigation. 

An answer to a Parliamentary question in November 2011 revealed that complaints to ATVOD about audiovisual services were running at about two a day since April 2011.  No complaints had resulted in a finding of breach of content standards.  ATVOD costs around £450,000 per annum, recouped by fees levied on about 150 regulated VOD services.

The question is bound to be asked, come the Communications Green Paper, whether ATVOD should now be given a decent burial.  What purpose is served by an extra layer of content regulation - whether ATVOD-style co-regulation or a full-blown statutory regulator – over and above the general law, especially when funded by imposing substantial costs on a small section of industry?
Are there alternatives?  The UK government does have to comply with the AVMS Directive, which lays down content requirements specific to TV-like audiovisual services.  However those can be enshrined in a few paragraphs of statute, with a sanction such as the ability for a person affected to apply to court for an injunction.  That, in conjunction with a voluntary code of conduct, is how the Irish government has implemented the AVMS Directive.
Subjecting on-demand audiovisual services to an appropriately crafted statute would remove the need for a funded regulatory or co-regulatory body and provide a regime much closer to that applicable to most other speech and content, both generally and on the internet.
An Irish-style approach was never considered when the UK government consulted on the implementation of the AVMS Directive in 2008.  The Communications Green Paper would provide the perfect opportunity to reconsider the need for any regulator at all. 

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