Ofcom rules on 'television-like' content online - International Law Office

Video-on-demand regulation
Decisions
Comment

The Office of Communications (Ofcom) has considered its first appeals against scope determinations by the Authority for Television on Demand (ATVOD), the video-on-demand regulator. The two decisions are about pornographic audiovisual content on two 'adult' websites, both of which were operated by Playboy TV. Ofcom decided that the audiovisual content on the websites was "television-like", meaning that Playboy TV was required to register both services with ATVOD and pay a separate registration fee for each.

Video-on-demand regulation

On March 18 2010 the Communications Act 2003 was amended to include a new Part 4A, which regulates on-demand programme services. A service falls within Part 4A if:

• its principal purpose is the provision of programmes whose form and content are comparable to the form and content of programmes normally included in television programme services;
• it is accessible on demand;
• a person has editorial responsibility for it; and
• that person makes it available for use by members of the public.(1)

All providers of on-demand programme services must register with ATVOD.(2) The regulator has the power to decide:

• whether such providers have complied with the notification requirement;
• what constitutes an 'on-demand programme service'; and
• what constitutes a 'programme' on an on-demand programme service.

These decisions are known as 'scope determinations' and may be appealed to Ofcom.

Registered services are required to comply with ATVOD programme standards. ATVOD's code contains relatively few restrictions for VOD services – they mainly relate to material that might incite hatred, be seriously detrimental to children or include inappropriate commercial references. These requirements are much less onerous than the standards imposed on broadcasters by Ofcom and the BBC Trust - or those expected of newspapers and magazines by the Press Complaints Commission.

Decisions

Both appeals related to online pornography websites run by Playboy TV. The websites contained a range of pornographic audiovisual material, offered either on channels or under headings such as 'scenes', 'films', 'series' and 'porn stars'. Users were required to register to use the websites, but could then select and watch audiovisual content.

ATVOD determined that the websites were on-demand programme services. It considered that:

"Although the content may be more explicit than is currently permitted on linear TV services in the UK, the form and content is nevertheless comparable to adult programmes broadcast on linear UK TV services and is essentially the same as adult programmes which are frequently broadcast on linear TV channels in other EU jurisdictions."

Playboy TV's main grounds of appeal were that its online services were not on-demand programme services because they were not television-like. It claimed that because its services included content rated 'R18', which is prohibited for television broadcast under the Ofcom Broadcasting Code, it was not comparable to material found on television. Playboy TV also maintained that its websites did not compete with television services and that users would not expect the services to be regulated.

Ofcom dismissed the appeals. It found that the websites were on-demand programme services because:

• the statute requires the form and content to be "comparable" to television services, not "identical", and the material was comparable, as:
  • it was arranged in self-contained items in a catalogue;
  • much of it was episodic and part of an ongoing series;
  • the items were mostly reasonably long (rather than merely short clips); and
  • there were introductory sequences and closing credits;
• the fact that the material was more explicit than that usually broadcast on television did not mean that the adult programmes were not substantially comparable under the statute. This was the case even though the material was "R18 or equivalent in nature" and was therefore unsuitable for unencrypted television viewing; and
• the nature of the service and the means of access to it would lead the user reasonably to expect regulatory protection.

Comment

The decisions related to managed websites, where an owner exercises editorial control over content, not user-generated content websites that allow users to post their own material directly on the website.

When deciding whether a service is television-like, ATVOD and Ofcom have made clear - in these decisions and others - that they will consider a range of factors, including the content of the clips, their organisation and description, their duration and their production values. Ofcom's rejection of the R18 rating argument is unsurprising. Commenting on the decision, ATVOD Chair Ruth Evans put the point well:

"The idea that a video on demand service should escape regulation on the grounds that its content was too extreme would make a mockery of the whole purpose of regulation in this area which, in large part, is designed to protect children from exposure to video content which poses a risk of serious harm."

Managed pornographic video websites will need to register with ATVOD unless they can be structured in a way that avoids them being classed as 'television-like'. Once registered, the websites will need to comply with the ATVOD code, in particular the requirement that:

"If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it."

ATVOD has made clear that in order to comply with its code, websites will be expected to introduce a content access control system, which must include effective age verification and registration procedures.

ATVOD has published 35 scope determinations. In each, it has decided that the service is caught by the Communications Act and must be registered. Other scope determinations include one against BBC Worldwide, which must register its Top Gear YouTube channel under the act, even though its clips are on average only eight minutes long. Some newspaper websites with video sections have also been caught, with ATVOD deciding that their services were television-like because of the way in which they were organised on the websites and their use of television production standards. However, ATVOD has made clear that where audiovisual content appears as an integral part of an online version of a newspaper - for example, alongside news stories - the service will fall outside its remit.

Eleven of ATVOD's determinations (including the BBC Top Gear decision and four newspaper cases) have been appealed to Ofcom. Most of these appeals appear to be motivated by an objection to the principle of registration (and the need to pay a fee), rather than concerns that websites will breach ATVOD content standards. The decisions are likely to provide useful clarity on the scope of ATVOD's remit.

For further information on this topic please contact Jaron Lewis at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (jaron.lewis@rpc.co.uk).

Endnotes

(1) Section 368A.

(2) Section 268BA(1).