OFCOM reins in VOD regulator’s reach

ATVOD’s high-profile campaign to bring video sections of newspaper websites under its regulatory wing has hit the buffers. 

Just before Christmas OFCOM ruled, in an appeal from an ATVOD determination, that the Sun Video elements of the Sun website are not a TV-like video on demand service.  ATVOD has promptly dropped similar cases against eight other newspaper and magazine sites.

OFCOM found that ATVOD’s original determination on the Sun site concentrated too much on the part of the in which the video links were collected together, rather than the site as a whole, and were wrong to conclude that the video links were a separate service in their own right.  They were an incidental part of the Sun newspaper site, and it was not possible to identify anything within the site whose principal purpose was the provision of audiovisual material.  OFCOM having reached this conclusion, it did not go on to consider whether the audiovisual material was comparable to a television service.  

OFCOM did address the general question of whether the Sun’s website provided a service that the Directive sought to bring within its regulatory scope.  In particular OFCOM considered Recital 24: whether the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive.

OFCOM concluded that the user would not regard the audiovisual material on the Sun website as competing with television programmes, nor expect what he was viewing to be regulated as such. Rather, as far as the written contents of the website and the Video section were concerned, the user would likely regard himself as viewing the electronic version of The Sun newspaper.

The 47 page OFCOM decision gives detailed guidance on the factors that are likely to influence whether provision of audiovisual material is a principal purpose of a website.  These include:

-         Whether the audiovisual material has its own homepage; or by contrast whether it is accessible via a homepage that is styled as providing, and in practice does provide, some other service with its own independent identity

-         Whether, where it is made available on a website providing other content, such as written articles, a significant amount of the relevant audiovisual material is catalogued and accessed via a separate section of the website

-         Whether the audio visual material is presented or styled and marketed as a television channel, e.g. as ‘X TV’

-         Whether a significant amount of the audiovisual material is of a substantial duration and/or comprises complete programmes, rather than bite-sized clips or extracts from longer programmes; and whether it has an independence that means it is watched and fully understood on its own.  Material comprising clips of short duration whose context, meaning and significance is only properly or fully understood by reading accompanying written material is more likely to be ancillary to some other service.

-         The degree to which there are access links between the relevant audio visual material and other content. For example, audio visual material that is an ancillary part of an electronic newspaper is more likely to contain a significant number of links between that material and written articles in the nature of “click to read story/view video”, and/or of videos embedded in written articles.

-         The degree to which there are content links between audiovisual material and other content. For example, audio visual material that is an ancillary part of an electronic newspaper is more likely to be the basis or subject matter of written articles, to be an audiovisual version of the written article or an amplified or enhanced experience of that article; and the audio visual material does not need to be watched for the user to receive the information the service seeks to convey.

-         Where the service provides audiovisual and written material:

(a)  the balance between the two kinds of material, in terms of quantity and/or prominence

(b)  whether the written material is brief and/or merely an introduction to, or summary of, the audio visual material or, by contrast, has significant length and depth; and

(c)   whether the audiovisual material is the primary means of conveying to users the information sought to be conveyed

-         Whether on an overall assessment the audiovisual material can or cannot be said to be integrated into, or ancillary to, another service. In particular, whether the material can reasonably be described as intended specifically to allow the viewing public to benefit fully from, or to interact with, information provided as part of some other, primary, service.

None of the specific factors is determinative. The service has to be considered in the round.   For instance, even though the Sun Video section was at one time branded as Sun TV, that alone was not enough to bring it within regulatory scope; nor was the fact that the Sun Video section had a cataloguing function.

While the OFCOM ruling leaves open the possibility that in some factual circumstances a newspaper site might contain a separate regulated video service, it does significantly restrict ATVOD’s regulatory reach.  Following OFCOM’s ruling the 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. … 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.”