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Clarification of regulatory position about harmful material on VOD

21 November 2014

The Audiovisual Media Services Regulations 2014 come into force on 1 December 2014 to remove any uncertainty from the existing regulatory framework and provide clarity to consumers and providers of video-on-demand (VOD) services in relation to adult content on VOD platforms.

The popularity of VOD services has increased over the last few years, and this has meant that there is a greater amount of potentially harmful content that is more accessible to the public.

The Communications Act 2003 makes Ofcom (the UK’s communications regulator) responsible for considering children’s vulnerability when considering its regulatory duties.

The Government has therefore followed recommendations by Ofcom published in 2011 that new provisions should be enforced to better protect against minors’ exposure to adult material on VOD services.

The 2014 Regulations amend section 368E of the Communications Act 2003 to ensure that:

  • VOD material that has been or would be rated R-18 by the British Board of Film Classification (BBFC), or other material that might seriously impair the physical, mental or moral development of persons under the age of 18, is put behind effective access controls to verify that the user is aged 18 or over (ie has been made available in a way that ensures that under 18s will not normally see or hear it, for example, “pay walls” whereby a user’s age can theoretically be verified as being over 18 through use of a credit card), and

  • the provision of VOD material that has been or would be refused classification by the BBFC is banned from being places on VOD services

This provides for stricter rules than the Article 12 of the Audiovisual Media Services Directive (Directive 2010/13/EU).

Ofcom’s co-regulator for VOD services is the Authority for Television on Demand (ATVOD) and between the 2011 Ofcom recommendations and the new 2014 Regulations, ATVOD and Ofcom took a cautious approach and issued guidance on section 386E, interpreting section 368(2) as requiring R18 material to be behind access controls.

Therefore, in reality, although the interim interpretation is now clarified, the impact of the new 2014 Regulation is not likely to be as significant due to the current recommendations, which should already be in place by VOD providers.

For more information please contact Mark Howard on +44 (0)20 7203 8902 or mark.howard@crsblaw.com