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Changes to the regulation of on-demand programme services

6 January 2016

Ofcom has published a statement and consultation document on the regulation of on-demand programme services (“ODPS”).

Ofcom ends co-regulatory arrangement with Authority for Television on Demand

In March 2010, Ofcom appointed the Authority for Television on Demand (“ATVOD”) as its co-regulator for on-demand programme services, however, with effect from 1 January 2016, Ofcom has brought this designation to an end and is now the sole regulator.

The move follows an Ofcom review concerning the efficacy and efficiency of the regulation of broadcast and on-demand content for the benefit of consumers, audiences and industry.

Ofcom explained their decision as a response to the “convergence between linear television broadcasting and ODPS and the extensive overlap in the identity of ODPS providers and broadcast licensees”.

The end of ATVOD’s designation has not given Ofcom any additional powers, as the regulator maintained its ability to act concurrently with or in place of ATVOD at any time during the co-regulatory relationship.

In light of the changes Ofcom has published Interim Breach Procedures to reflect the structural differences between ATVOD and Ofcom.

The end of the co-regulatory regime has automatically brought an end to the appeal process from ATVOD to Ofcom, though an interim internal appeal process has been retained, in addition to the right of redress by way of judicial review.

Ofcom proposes to adopt permanent procedures following a consultation, which was launched in December (see below).

The draft procedures put forward as part of this consultation do not retain the internal review process embodied in the Interim Breach Procedures, aligning the approach with that for broadcast licensees.

In contrast, there have been no proposals to change the co-regulatory arrangement between Ofcom and the Advertising Standards Authority (ASA). The ASA will remain co-regulator in relation to both advertising content on ODPS and for linear television broadcasting.

Consultations launched on future regulation of on-demand programme services

Ofcom has published two further consultations on the future regulation of ODPS.

The first of these considers the introduction of new procedures for investigating breaches of rules for on-demand programme services to replace the Interim Breach Procedures (referred to above).

Ofcom is seeking to align the specific procedures covering alleged breaches by ODPS providers with those covering alleged breaches by television broadcasters of Ofcom’s Broadcasting Code.

Nevertheless, a breach of the rules by ODPS providers may well require a unique approach in many cases.

Ofcom has highlighted the increased risk of ongoing harm given the on-demand nature of ODPS compared with scheduled television broadcasts.

Such infringements may warrant a swifter and more flexible approach to sanctions. 

Second, Ofcom is consulting on a proposal not to charge regulatory fees, as ATVOD have in the past.

Of the three options outlined in the consultation document, Ofcom is in favour of not charging a fee to ODPS service providers and instead covering the additional costs within the existing fees structure for television broadcast licensees.

Ofcom’s statement and consultations document can be read in full online here.

This article was written by James Norrey.

For more information please contact James on +44 020 7203 5233 or james.norrey@crsblaw.com.