An Ofcom future for on-demand video regulation

Ofcom has published a statement on the regulation of on-demand programme services (ODPS) following the closure of ATVOD. The document sets out the arrangements that apply from 1 January 2016, the date on which Ofcom became the sole regulator of ODPS.

Background

Ofcom has pointed out that the end of ATVOD does not mark the start of a vast regulatory upheaval. From its inception under the Communications Act 2003 (Act), ATVOD was appointed by Ofcom as its co-regulator for ODPS.  In doing so, Ofcom could act concurrently with, or in place of, ATVOD, and remained solely responsible for financial penalties, suspensions and restrictions. It also had an appellate role for ATVOD’s decisions that providers were ODPS providers under the Act (known as “scope appeals”).  So Ofcom has not gained any new powers or functionality.

The decision to bring regulation under one organisational roof follows the perceived convergence between linear television broadcasting and ODPS and the extensive overlap in the identity of ODPS providers and broadcast licensees.  In the interest of effectiveness, Ofcom has acted as the sole regulator for all ODPS non-advertising content since 1 January 2016.  The ASA remains the co-regulator for advertising content on ODPS, as it does for linear television broadcasting.

Arrangements from 1 January 2016

The statement sets out consequential practical changes to forms, rules and guidance that stem from the shift to a sole regulatory regime.

The more significant change is the introduction of the Interim Breach Procedures, which will apply to complaints received from 1 January 2016, as well as any ongoing investigations that ATVOD could not complete by 31 December 2015.  Those temporary procedures are only intended to apply for a short period before more permanent procedures are rolled out.

Ofcom has drawn attention to the following elements of the Interim Breach Procedures:

• There is no longer an appeal process from ATVOD to Ofcom.  An internal review process will be available in the interim, and ODPS providers have an appeal route via judicial review in the High Court.
• Ofcom has simplified the position on investigations into services that have not been notified as ODPS.  Previously, because appealing an ATVOD “scope” decision went to Ofcom, the default position was to address issues of scope and potential breaches of editorial rules sequentially.  The default position is now that they are addressed in parallel.
• ATVOD was a much smaller organisation than Ofcom, with limited opportunity for internal governance and decision-making by individuals not directly involved in the original investigation.  So Ofcom has decided it is “neither appropriate nor necessary to replicate ATVOD’s Determinations Committee, nor to have Board-level involvement in typical cases”.  But an internal review process provided by appropriately qualified Ofcom staff not involved in the original decision is available in the transitional period.

Consultations

Ofcom has also consulted on:

• the future procedures for investigating breaches of rules for ODPS; and
• how to cover the incremental costs of the transition to a sole regulatory system.

Both consultations ended on 1 March 2016.

Comment

Ofcom’s statement and consultations reflect a new clarity and confidence in defining the nature of ODPS and the type of regulation that they require.  Following in the wake of the Directive, Ofcom’s view is that there is a general convergence between broadcast services and ODPS, and that, to meet audiences’ reasonable expectations, regulatory procedures should be as closely aligned as possible. The transition from a co-regulatory to a sole regulatory model seems a sensible step to achieve this objective.  We are yet to see how effectively Ofcom can practically implement the alignment of procedures, but the statement and consultations demonstrate an intention to provide as much certainty as possible for ODPS providers during these regulatory changes.

To refer to the Ofcom statement and consultations in full, click here.

To read the full article, click here.  Article written for Entertainment Law Review.