Sunday 3 April 2011

TV-like regulator pursues the national press

ATVOD, the newest UK content regulator, has started to test the limits of its powers to require providers of TV-like video on demand to notify their services and pay it a fee, currently £2,900 per service per annum. It has published 20 ‘scope determinations’, each one deciding that the service in question is in scope and subject to ATVOD regulation.

The determinations include three especially high profile decisions about national newspapers, all of which ATVOD says are expected to be appealed to OFCOM, the overall UK communications and broadcast regulator. ATVOD asserts that the video content on the Sunday Times video library, Sun and News of the World websites are TV-like video on demand services and fall within its jurisdiction. It has made a similar determination for Elle magazine. If ATVOD is right then the services must conform to stricter content rules than an ordinary website and are subject to ATVOD’s complaints procedure.

Seeking to bring national newspapers within scope is particularly controversial when the EU Audiovisual Media Services Directive, which determines the limits to ATVOD’s jurisdiction, states that it should not cover electronic versions of newspapers and magazines. The press has never had broadcast-style content regulation or rules imposed on it. To do so would rightly be seen as a gross intrusion on press freedom. That is why the carveout is in the Directive.

Unsurprisingly, the newspapers have argued to ATVOD that the video content on their websites is not a separate service and, among other objections, that it falls within the Directive’s exclusion for electronic versions of newspapers and magazines. ATVOD is undeterred:

"ATVOD has no desire or remit to regulate the press – whether online or offline – but we do have a duty to be even-handed and apply the new statutory regulations in a fair and consistent manner.

Where video content appears as an integral part of an online version of a newspaper, for example alongside a text based story, then the service falls outside our remit: it is indeed excluded by law. Many services provided by newspapers and magazines fall exactly into this category and can expect to hear nothing from ATVOD.

But that is not what happens in these particular services. In each case a catalogue of ‘TV like’ programmes is offered as a discrete service, comparable with many others. There are clear differences between these services and on-line versions of newspapers. It would make no sense to exclude viewers from regulatory protection simply because an on demand programme service shares a website with an online newspaper or magazine."
So it’s OK to have video on your newspaper site, but woe betide anyone who provides a discrete list of the video content.

When the then Secretary of State for Culture, Media and Sport Andy Burnham introduced the regulations that put this regulatory system in place, he said this about scope:

"The definition is narrow and covers only mass media services whose principal purpose is to provide television-like programming to users."
It is not easy to see these sentiments reflected in ATVOD’s current approach to newspaper sites. The outcome of the expected OFCOM appeals will be awaited with interest.

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