Ofcom Opens Consultation on Regulation of VOD Services

--Proposes that VOD Services Be Regulated by ATVOD, Associated Advertising by ASA

The UK's media regulator, Ofcom, on Monday launched a consultation on VOD services in that country. The consultation--which will affect such services as BBC iPlayer, 4OD, ITV Player, SkyPlayer and Demand Five, which are offered on the open Internet as well as through Virgin Media, Sky and BT Vision--is in response to the European Union's new Audiovisual Media Services Directive, which requires that "TV-like" VOD services should be regulated as of December 19th, 2009.

Ofcom's consultation is focused on its proposal that two bodies should carry out most aspects of the EU-mandated regulation of VOD on its behalf: it is proposing that VOD services should be regulated by the industry body, the Association for Television On Demand (ATVOD), and that advertising associated with those services should be regulated by the Advertising Standards Authority (ASA). It says that VOD programming will not, however, be subject to Ofcom's own Broadcasting Code, which broadcast services currently licensed in the UK have to observe.

Under Ofcom's proposals, ATVOD would be required to ensure that programming on VOD services follows a number of minimum standards from the EU directive, which will be incorporated into UK legislation. For example, the organization says, programs "must not contain any incitement to hatred based on race, sex, religion or nationality"; and "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"; while sponsored programs and services "must comply with applicable sponsorship requirements." According to Ofcom, the ATVOD has agreed to "remodel itself from a self-regulatory membership-based organization into an industry-wide co-regulator for the purpose of ensuring compliance with the regulations": among other things, Ofcom says, the organization will "recruit a new chair and chief executive; publish revised complaints procedures; and complete the development of a new funding structure based on the income it will receive from notifying VOD services."

ASA, meanwhile, which has regulated TV and radio advertising in the UK since 2004 under a co-regulatory agreement with Ofcom, would regulate advertising on VOD services as part of a "one-stop shop" for consumers, Ofcom says. The new EU legislation requires, for example, that VOD advertising "must be readily recognizable and cannot contain any surreptitious advertising or use subliminal advertising techniques"; and "must not encourage behavior that is prejudicial to the health or safety of people." It also specifies that tobacco products, prescription medicines and medical treatments cannot be advertised on VOD programs.

Under Ofcom's proposals, viewer complaints would be handled directly by the ATVOD or the ASA. While content on the BBC iPlayer would be subject to the new regulations foreseen by the EU directive, like other BBC services the iPlayer would be regulated by Ofcom itself in partnership with the BBC Trust, and not under the proposed co-regulatory arrangements. Because the EU directive seeks only to regulate "TV-like" VOD services, Ofcom says, "unmoderated" user-generated video services, such as YouTube, as well as on-demand content on newspaper sites and private Web sites would not be regulated. The organization says that, under the proposed co-regulatory system, it would have back-stop powers to intervene if the system does not work effectively, and that it would also retain the power to impose sanctions against service providers.

The consultation is scheduled to close on October 26th. More information is available at: http://www.ofcom.org.uk/consult/condocs/vod/