Ofcom have published a consultation on the future regulation and cenorship of Video on Demand (VOD) services.

Under revised European law, content on VOD services such as BBC iPlayer, 4OD, ITV Player, SkyPlayer and Demand Five will be regulated from 19 December 2009. Such services are available through Virgin Media, Sky and BT Vision as well as through the internet.

Regulation of these services is a requirement of the EU's Audiovisual Media Services Directive and covers all VOD services which are, according to the Directive, TV-like. The Government plans to give the overall duty to regulate these services to Ofcom.

Electronic versions of newspapers, private websites and unmoderated user generated material (hosted on services such as YouTube) will not be regulated.

Industry Bodies ATVOD and ASA

Ofcom is consulting on its proposal that two bodies carry out most aspects of the regulation on its behalf: Ofcom proposes that VOD services are regulated by the industry body, the Association for Television On Demand (ATVOD), and that advertising included in those services, is regulated by the Advertising Standards Authority (ASA).

But VOD programming would not be subject to Ofcom's Broadcasting Code, which broadcast services currently licensed in the UK have to observe

Under the proposed co-regulation, Ofcom will have back-stop powers to intervene if the new co-regulatory system does not work effectively and Ofcom will also retain the power to impose sanctions against service providers.

Content Censorship

Under the proposals for consultation ATVOD would regulate VOD services and would be required to ensure that programming on VOD services adheres to a number of minimum standards from the Directive which will be set out in UK legislation. Programmes, for example:

• must not contain any incitement to hatred based on race, sex, religion or nationality
• 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
• sponsored programmes and services must comply with applicable sponsorship requirements.

Advertising

Since 2004 the ASA has regulated TV and radio advertising in the UK under a co-regulatory agreement with Ofcom. Under the proposals for consultation the ASA would regulate the advertising on VOD services.

The new legislation requires that advertising on VOD services must also comply with a number of minimum standards. For example:

• advertising must be readily recognisable and cannot contain any surreptitious advertising or use subliminal advertising techniques
• advertising must not encourage behaviour that is prejudicial to the health or safety of people
• tobacco products, prescription-only medicines or medical treatments cannot be advertised.

Viewer complaints

Under Ofcom's proposals any complaints that viewers have about video material that they feel has breached these rules will be assessed by ATVOD or the ASA.

BBC

BBC content is jointly regulated by the BBC Trust and Ofcom.

Content on the BBC iPlayer will be subject to these new regulations but as with other BBC content will be regulated by the Trust and Ofcom and not under the proposed co-regulatory arrangements.

Consultation

Our consultation closes on 26th October 2009. See further details here

Clearcast, the body responsible for the pre-transmission clearance of TV ads, is to offer compliance advice to video-on-demand providers who run advertising.

Ofcom plans to introduce new rules from 19 December that will mean VoD services are formally regulated for the first time.

The current shareholders of Clearcast asked it to establish a service to offer voluntary compliance advice on VoD ads before they are screened.

Magazine publishers represented by the Periodical Publishers Association (PPA) have urged the government against inadvertently widening the scope of new video on demand regulations to include content streamed through the websites of magazine publishers.

The UK government is scheduled to implement a European directive on audiovisual content by 19 December 2009.

The directive aims to regulate TV-like VOD. Not the audio-visual material which is used to complement text and graphical material usually found on magazine publishers' and business media companies' websites.

Guidance on the scope of the VOD services covered by the new law is due to be published. But PPA is concerned that the lack of clarity in the proposed guidance may unintentionally impact its members.

PPA Legal Director David Hyams said: Video streamed through our members' websites is already subject to the Committee of Advertising Practice Code and editorial content on their websites is covered by the Press Complaints Commission code. Both of which go further than the proposed regulations.

Under the new rules, the Advertising Standards Authority will continue to regulate streamed video advertising, although the directive requires that regulations will now be enforced against the media owner rather than the advertiser.

Hyams added: This has serious cost, compliance and contractual issue for PPA members.

The Association for Television on Demand (ATVOD) has imposed an annual fee on all video on-demand providers, but critics remain concerned that small-scale operators could be unfairly penalised under the scheme.

ATVOD, which took over VOD regulation duties from Ofcom in March, yesterday announced that a flat-rate fee of £2,900 will be imposed on the services of all notified VOD providers in the UK.

The fee is being introduced so that ATVOD can be adequately funded to carry out its regulatory activities.

Last month, the United For Local Television (ULTV) group expressed concern that the approach could penalise small-scale VOD players unable to afford an annual fee.

Taking into account the concerns, ATVOD acknowledged that there could be some (as yet unidentified) small-scale providers of actual or prospective ODPS [on-demand programme services] services who might find a fee of £2,900 prohibitive, and that such a fee would therefore not be justifiable or proportionate in relation to them. ATVOD has therefore invited small-scale VOD providers, most likely local and community groups, to contact the regulator if they will have genuine difficulties in being able to pay the fee. All such providers must write directly to Ofcom before July 15.