Ofcom to regulate video on demand

Under revised European law, content on video on demand (VoD) services such as BBC iPlayer, 4OD, ITV Player, SkyPlayer and Demand Five will be regulated from 19 December 2009. Such services are available through Virgin Media, Sky and BT Vision as well as through the internet.

Regulation of these services is a requirement of the EU’s Audiovisual Media Services Directive and covers all VoD services which are, according to the Directive, “TV-like”. The Government plans to give the overall duty to regulate these services to Ofcom.

Today, Ofcom is consulting on its proposal that two bodies carry out most aspects of the regulation on its behalf: Ofcom proposes that VoD services are regulated by the industry body, the Association for Television On Demand (ATVOD), and that advertising included in those services, is regulated by the Advertising Standards Authority (ASA).

But VoD programming would not be subject to Ofcom’s Broadcasting Code, which broadcast services currently licensed in the UK have to observe

There a number of criteria for establishing which services will be regulated. For instance the Directive seeks only to regulate ‘TV-like’ services which make programmes available for members of the public to view at a time of their choice.

Therefore, electronic versions of newspapers, private websites and unmoderated user generated material (hosted on services such as YouTube) will not be regulated.

Under the proposed co-regulation, Ofcom will have back-stop powers to intervene if the new co-regulatory system does not work effectively and Ofcom will also retain the power to impose sanctions against service providers.
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Under the proposals for consultation ATVOD would regulate VoD services and would be required to ensure that programming on VoD services adheres to a number of minimum standards from the Directive which will be set out in UK legislation.

Programmes, for example: must not contain any incitement to hatred based on race, sex, religion or nationality; must not provide material which might seriously impair the physical, mental, or moral development of minors unless it is made available in such a way that ensures that minors will not normally hear or see such content; and sponsored programmes and services must comply with applicable sponsorship requirements.

Since 2004 the ASA has regulated TV and radio advertising in the UK under a co-regulatory agreement with Ofcom. Under the proposals for consultation the ASA would regulate the advertising on VoD services as part of a ‘one-stop-shop’ for consumers.

The new legislation requires that advertising on VoD services must also comply with a number of minimum standards. For example: advertising must be readily recognisable and cannot contain any surreptitious advertising or use subliminal advertising techniques; advertising must not encourage behaviour that is prejudicial to the health or safety of people; and tobacco products, prescription-only medicines or medical treatments cannot be advertised.

Under Ofcom’s proposals any complaints that viewers have about video material that they feel has breached these rules will be assessed by ATVOD or the ASA.

BBC content is jointly regulated by the BBC Trust and Ofcom. Content on the BBC iPlayer will be subject to these new regulations but, as with other BBC content, will be regulated by the Trust and Ofcom and not under the proposed co-regulatory arrangements. The consultation closes on 26 October 2009.

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