Ofcom Rules That Nickelodeon UK, Comedy Central UK and MTV Networks Europe Hold Their Own Responsibility For Their VOD Content On Virgin Media

From Broadband TV News:

Broadcasters hold responsibility for VOD content

In a landmark ruling Ofcom [Office of Communications] has backed a decision by the industry regulator ATVOD that three Viacom companies were responsible for their own content on the Virgin Media platform.

Nickelodeon UK Limited, The Paramount Partnership and MTV Networks Europe had each appealed against ATVOD determinations that they respectively hold regulatory responsibility for the Nickelodeon, Comedy Central and MTV video on demand content on the Virgin Media platform.

The decision means that the three Viacom companies rather than Virgin Media are responsible for ensuring that the services comprising their video on demand programmes on the Virgin Media platform comply with the statutory rules that apply to On Demand Programme Services.

“This is a complex area and the appeal system is a vital part of the process, giving service providers, in particular, greater clarity over where regulatory responsibility lies,” said ATVOD chief executive Pete Johnson.

Ofcom based its decision on the definition of “editorial responsibility” as defined in section 368A of the Communications Act 2003, which states that a person has editorial responsibility for a service if that person has general control over what programmes are included in the service and over the manner in which those programmes are organised within the service.

In the original determination made in July 2011, Comedy Central argued that how the service was branded, promoted and marketed was all controlled by Virgin Media. However, ATVOD said such techniques were used by aggregators to facilitate the location of content.

The position was muddied by the acceptance of editorial responsibility by both BT Vision and the now defunct SeeSaw.

Also, from Advanced Television:

Ofcom: Content providers not platform responsible for VoD

Ofcom has backed VoD regulator ATVOD’s ruling that three Viacom companies – Nickelodeon , Paramount and MTV Networks – are responsible for the VoD content of Nickelodeon, Comedy Central and MTV respectively on the Virgin Media platform.

The broadcasters had notified ATVOD last year that they considered Virgin Media to have “editorial responsibility” for the offerings, and that their services should therefore be removed from ATVOD’s directory of notified services.

In rejecting the three companies’ appeal against the regulator’s ruling, Ofcom took the view that ATVOD “made substantively the correct decision for the correct reasons”.

The decision means that the producer companies, rather than the serving platform, are responsible for ensuring that the services comprising VoD programming comply with the relevant rules.

Also, from DigitalTVEurope.net:

Ofcom: content providers responsible for Virgin Media VOD

UK media regulator Ofcom has upheld a ruling by video-on-demand regulatory body ATVOD that content producers, rather than the platform operator, are responsible for the VOD services featuring their content on the Virgin Media cable platform.

Ofcom has upheld ATVOD’s ruling that three Viacom companies – Nickelodeon UK Ltd, the Paramount Partnership and MTV Networks Europe – are responsible for the VOD content of Nickelodeon, Comedy Central and MTV respectively on the Virgin Media platform.

The three broadcasters had notified ATVOD early last year that they considered Virgin Media to have “editorial responsibility” for the offerings, and that their services should therefore be withdrawn from ATVOD’s directory of notified services.

In rejecting the three companies’ appeal against the VOD regulator’s ruling, Ofcom took the view that ATVOD “made substantively the correct decision for the correct reasons”.

The decision means that the three Viacom companies rather than Virgin Media are responsible for ensuring that the services comprising their VOD programmes on Virgin Media comply with the statutory rules which apply to on-demand programme services.

“This is a complex area and the appeal system is a vital part of the process, giving service providers, in particular, greater clarity over where regulatory responsibility lies,” said ATVOD CEO Pete Johnson.

Also, more from Broadband TV News:

Clover's Week: Stop the presses

How similar is the regulation of the press to that of VOD? Asks Julian Clover.

ATVOD had an uncomfortable start to its life. The organisation, which now styles itself as the authority for the regulation of on demand content in the UK, is a self-regulatory body along the lines of the Press Complaints Commission.

However, there is a startling difference, in that at least newspapers pretend that they want to be regulated.

ATVOD gets its powers through the Communications Act and through that the regulator Ofcom, which in March 2010 allowed ATVOD to take on the power to regulate VOD content. Services would ‘notify’ ATVOD of their existence and would then be subject to a regulation of the lightest touch.

There were early complaints, both about those that had actually chosen to notify, and the cost of regulating – £467,307 in the first year of operation – though no doubt significantly cheaper than leaving the task with Ofcom.

This week came the result of a police procedural. Nickelodeon UK Limited, The Paramount Partnership and MTV Networks Europe had each appealed to Ofcom against ATVOD determinations that they respectively hold regulatory responsibility for the Nickelodeon, Comedy Central and MTV video on demand content on the Virgin Media platform.

They said that Virgin should take that responsibility in the same way that BT Vision and the short-lived SeeSaw had chosen to do.

The curiosity is that if a Nickelodeon show, say Sponge Bob Squarepants, received a complaint when shown on Nick itself, the channel would happily take the rap. But if that same programme was shown on Virgin’s VOD system, then it would be the responsibility of the operator, the pipe, or do we mean the pipe as a channel?

After all we are familiar with the sort of stat that says Virgin’s VOD viewing is greater than viewership to Channel 4 and Sky has long been described by some as if it were a single channel.

But it is the inconsistency that I am having a hard time to unravel. On some platforms you complain to the channel, others to the operator, the green ink brigade will have great difficulty knowing where to they should post their letters.

In newspapers the Press Complaints Commission is one of the topics being covered by the Leveson enquiry into media ethics. One newspaper, the Daily Express, owned by Richard Desmond’s Northern & Shell that also owns Channel 5, has decided not to support the Commission and will not be regulated by them.

TV is going through what is arguably a greater change than that facing the press. A little consistency might be a good idea.

Also, from Out-Law.com:

Regulator correctly determined editorial responsibility for on-demand video services, Ofcom rules

Organisations that share control over the content of video-on-demand (VOD) programmes should write contracts that set out who has overall editorial responsibility for the material, Ofcom has said.

The communications regulator made the recommendation in a ruling concerning VOD services that appeared on the Virgin Media platform on behalf of three entertainment companies. Ofcom upheld a decision by VOD regulator the Authority for Television on Demand (ATVOD), which had ruled that the entertainment producers, not Virgin, were editorially responsible for the VOD programmes.

"It is conceivable that more than one party may have a role in determining the range of programmes offered and the organisation within that range. In those circumstances, parties may wish to settle the ambiguity with clear contractual wording," Ofcom said in its ruling (15-page / 263KB PDF).

The UK's Audiovisual Media Services (AVMS) Regulations force companies to inform ATVOD when they operate an on-demand video service online. Only companies with editorial responsibility for the content are required to provide this notification. Those companies must pay a licence in order to broadcast the material and are bound by the terms of the AVMS Regulations.

The AVMS Regulations were introduced in the UK to update the Communications Act in order to meet the requirements of the EU's AVMS Directive. The Directive provides a European-wide standard on governing audio and visual content that is under the editorial responsibility of a media service provider.

Ofcom appointed ATVOD to be the primary regulator of VOD content in the UK in 2010. Material subject to regulation does not include all internet video. The rules apply only to television-like services delivered on demand, not to user-generated videos such as those that appear on YouTube.

The law states that video services qualify for regulation if "its principal purpose is the provision of programmes the form and content of which are comparable" to that "normally included in television programme services"; if it has a person who is editorially responsible for it; is based in the UK; and is available on an on-demand basis made available for use by members of the public.

Under the Act an organisation with editorial responsibility is one with "general control over what programmes are included in the range of programmes offered to users; and over the manner in which the programmes are organised in that range". The companies do not have to have control of content for individual VOD programmes or over how they are broadcast or distributed in order to be deemed as editorially responsible for the material.

The material that does fall under ATVOD's regulation must conform to some of the standards expected of broadcast television. It must not incite racial hatred; harm under-18s; or break rules on sponsorship or product placement.

In 2010 Nickelodeon UK Limited, The Paramount Partnership and MTV Networks Europe notified ATVOD of the VOD content they were providing through Virgin but subsequently told the regulator of their intent to withdraw that notification based on their belief that Virgin, not them, had editorial responsibility for the material. The companies shared control over the content of what was shown through the services with Virgin, the Ofcom ruling said.

Last year ATVOD ruled that the VOD services were under the editorial control of the three Viacom-owned producers. ATVOD had said that the terms of the contracts between Virgin and the companies were "ambiguous" over which party had "general control" of the organisation and selection of content.

However, it said that there were "clear contractual agreements" over the "obligations" that applied to the service which helped it determine the outcome of its ruling.

The Viacom companies appealed the ruling to Ofcom claiming that they did not make the VOD service available to the public and were not editorially responsible for the content. They said ATVOD had been wrong to determine the outcome of the case by giving more emphasis to which party was editorially responsible as opposed to which party had made the material publically available.

However, Ofcom ruled that an opposing standard whereby editorial responsibility and the provision of the service were considered equally could inadvertently allow VOD content to avoid regulatory oversight altogether.

"A service which has the principal purposes of offering on-demand programmes which are comparable in form and content to those on linear television could place itself outside regulation simply by ensuring person A makes the service available ... but person B has editorial responsibility," Ofcom's ruling said.

"We note that this is not [the Viacom companies'] position on these particular cases (they argue that Virgin Media [is both editorially responsible and makes the material publically available]). However, it flows from the logic of [their] position. In particular, it is quite possible to envisage a situation in which party A 'makes a service available' in all the senses raised by the [Viacom companies] (controlling restricted access, entering legal contracts for access with consumers, collecting subscriptions, maintaining technological aspects, controlling servers and providing technical support) yet party B retains 'general control' over programmes included in the range offered to consumers and the manner of organisation within that range. This cannot be the intention of the statutory provisions, and would not be consistent with the purposes of the AVMS Directive," the regulator said.

The wording of the amended Communications Act expressly states that only those with editorial responsibility for on-demand services should be treated as providing the service, but there is no equal weighting given to those who make the material publically available. Because of this, ATVOD was right to determine the outcome of the cases on the basis of editorial responsibility, Ofcom said.

"[The wording of the Act] implies that, whereas only one person can have editorial responsibility, more than one may make the [service] available. We consider that to be the case here; there is no question but that both Virgin Media and each [Viacom company] intends to make available content for use by members of the public, and this is the clear intention of the relevant agreements (and what happened in practice)," Ofcom said.

The contracts between the Viacom companies and Virgin contained terms that made it clear that the Viacom companies were editorially responsible for content on the services provided, Ofcom said.

"The agreements ... include a clear statement as to the intention of the parties regarding the allocation of 'editorial responsibility' and say that the term is intended to be read as it is under the Act. They specifically make mention of ATVOD and responsibility to notify," the ruling said.

Ofcom rejected claims by the Viacom companies that placing a reliance on contract terms would allow organisations to draft agreements that enable them to avoid regulatory responsibilities laid out in the law.

"It is entirely proper that parties to a contract may wish to settle ambiguity regarding 'editorial responsibility'. Where this does not frustrate the purposes of the Act and the AVMS Directive by allocating responsibility where it plainly does not lie thus inhibiting effective enforcement ... it is not at all 'an arbitrary legal standard' to take as a starting point that the parties' intention was that their relationship should operate as clearly stated on the face of the contract, in the absence of strong and compelling evidence to the contrary," Ofcom said.

"The [Viacom companies] are in the unattractive position of asking Ofcom effectively to strike out a clause in a contract which they, as sophisticated commercial broadcasters, appear freely to have agreed. They have not provided strong and compelling evidence, either to ATVOD or to Ofcom, that the intention of Virgin Media and themselves was other than that clearly stated on the face of their contracts," the regulator said.

Useful Links

The Ofcom ruling (15-page / 263KB PDF).

Also, from Broadcast:

Ofcom upholds Atvod's Viacom ruling

Ofcom has upheld a decision from VoD regulator Atvod that Viacom is responsible for the editorial of its catch-up services on Virgin Media.

The decision from Ofcom means Viacom will incur costs for the regulation of the services rather than the platform provider.

MTV, Nickelodeon and Paramount each appealed against an Atvod decision in September that they had editorial control of their on-demand content on Virgin Media. But following an investigation by Ofcom, the Viacom channels were found to be in charge of the services.

Atvod’s chief executive Pete Johnson said no wider ramifications could be drawn from Ofcom’s decision because editorial responsibility varied from case to case.

“This is a complex area and the appeal system is a vital part of the process, giving service providers, in particular, greater clarity over where regulatory responsibility lies,” he said.

Ofcom is currently deciding whether to uphold Atvod rulings that the BBC Worldwide’s BBC Food and Top Gear channels on Youtube constitute “TV-like” content and should be regulated accordingly.

Atvod has also kicked off a consultation into its fee structure which it hopes to conclude by 1 April. It is proposing either maintaining the current six band system, under which it estimates costs will fall 4% per service, or introducing a flat rate £2800 fee per service system.

A fees system based on audience size is being eyed for 2013 but depends on Atvod’s ability to select a universally agreed measurement provider.