Ofcom has launched a consultation on its proposed guidance to help providers of on-demand services understand:
- if they are providing a service that is subject to the statutory framework for on-demand programme services (ODPS) under the Communications Act 2003; and
- when and how they might need to notify their service to Ofcom.
ODPS are a category of video on-demand service regulated under Part 4A of the Communications Act 2003, which reflects the EU framework for on-demand services under the Audiovisual Media Services Directive 2018. The proposed guidance is intended to help providers assess whether they are providing a service which meets the criteria under the Act and so are subject to the regulatory framework for ODPS. Service providers are required to notify Ofcom before providing an ODPS. Services that operated before 1 November 2020 which did not meet the previous definition of an ODPS but do meet the updated definition are now required to notify Ofcom.
Ofcom says that the wide variety of content, services and business models available make it unrealistic to provide a simple checklist for determining the services that will be within scope, and those that will fall outside scope. As a result, it highlights that each service provider must make their own assessment of how the statutory criteria apply in the context of the particular service or services they are providing, and act accordingly. It is the responsibility of service providers, taking independent legal advice where necessary.
A service or a ‘dissociable section’ of a service will be an ODPS if:
- its principal purpose is the provision of programmes with or without sounds which consist of moving or still images, or of legible text, or of a combination of those things;
- access to it is on-demand;
- there is a person who has editorial responsibility for it;
- it is made available by that person for use by members of the public;
- that person’s head office is in the UK; and
- editorial decisions about the service are taken in the UK.
Previously, a service could only be an ODPS if the programmes it included were comparable to the form and content of programmes normally included in television programme services. The removal of this requirement is likely to mean that a wider range of services will now fall to be notified.
The guidance includes some examples of the types of service which may meet the definition of an ODPS:
- a ‘catch-up service’ for a broadcast television channel;
- a television programme archive service comprising less recent television programmes from a variety of broadcasters and/or production companies, made available by a content aggregator exercising general control over their selection and organisation whether via a dedicated website, online aggregated media player service, or through a television platform;
- an on-demand film and television service, provided online by a person with “editorial responsibility”;
- an on-demand music video service.
Examples of services which will not fall under the criteria are:
- a service which hosts user-generated videos and allows users to engage with other users’ content, supported by advertising or subscriptions;
- an online newspaper, where videos are embedded within the journalistic or editorial content of the service (but if they provide a dissociable video-on-demand service, they will be caught)
- a private on-demand service which offers programmes within a business intranet; and
- an individual’s personal social media account which is used to share video content with friends and family.
The statutory framework has also been amended to make clear that a ‘dissociable section’ of a service, as well as a service as a whole, can be an ODPS if it meets the criteria. Providers will need to consider whether the criteria apply to their whole service or to a ‘dissociable section’ of it. The availability of a service, the number of viewers it has and the number of views that it generates may be relevant in deciding if the principal purpose of the service is providing programmes. It may also be relevant to consider whether a service is made available with some form of renumeration, such as sponsorship, advertising or subscription fees. When considering whether a section of a service is ‘dissociable’ from the rest, providers might consider the extent to which programmes within that part are provided for their own value as a standalone feature, rather than as linked or supplementary to other forms of content on the service.
The criteria which must be met for an ODPS to fall within UK jurisdiction have also changed under the legislation. A service will be deemed to be established in the UK if the provider has its head office in the UK and editorial decisions about the service are taken in the UK.
The concept of editorial responsibility is important. Where a provider does not have general control over what programmes are included in the service, they will not be offering an ODPS but the service may need to be notified to Ofcom as a video-sharing platform (“VSP”) if the criteria in section 368S of the Act for determining whether the service is a VSP are met. The level of control that an online provider exercises over video content available on their service is a key factor in assessing whether the service falls to be regulated as an ODPS under Part 4A of the Act or a VSP under Part 4B of the Act. Each service will be different and needs to be judged on its own facts, but there may be cases where VSP and ODPS services converge.
Where it appears to Ofcom that a service meets the statutory criteria but has not been notified, it has statutory powers to request information to make an assessment, and to take enforcement action if a provider has failed to notify. This can include a financial sanction and directing the provider to notify.
The consultation ends on 26 May 2021. Ofcom plans to issue final guidance in the summer. In the coming weeks, it will also be consulting on guidance for ODPS providers on regulatory requirements and measures to protect users from harmful material. It has already provided guidance on how to notify.
