Ofcom Discussion

(18-01-2013 12:23 )Digital Dave Wrote:  I've just received an email from Ofcom - some light at the end of the tunnel perhaps because Ofcom have upheld two appeals by the BBC against ATVOD on this very issue! I haven't read the detail of the findings yet but here's the text of the Ofcom email:

[i]Ofcom has today upheld appeals by BBC Worldwide Limited in relation to two decisions by the Authority for Television On Demand (ATVOD) – which is responsible for regulating the editorial content of certain on-demand programmes services.

I realise that Ofcom can cite adult content as a special case and therefore they can still censor it but I would think that by upholding these two appeals they are contradicting themselves, something that could be used against them in the future.

Having read the Top Gear ruling I dont think Ofcom can cite adult content as a special case.

Heres a summary of Ofcom reasons for upholding the BBC appeal:
To be in scope for ATVOD regulation a service must be "essentially the same, or sufficiently similar, and which compete for viewers and advertisers" (appeal para 4a).
BOTH criteria must be met - similar and compete otherwise section 368A(1) of the Communications Act 2003 does not apply. Thats the law.

Several differences between Top Gear broadcast shows and online clips were identified. Ofcom decided that these meant the online clips were not television like.
- clips were mostly under 10 minutes long, TV shows were generally about an hour.
- clips were tasters to encourage people to watch full shows, TV shows "includes “several segments with different subject matter” with linking elements and opening and closing credits".
- a programme consisting of clips without links "would be “a series of unrelated clips”.
- clips were not "broadcast quality as they lacked opening or
closing sequences or credits, were of low resolution, and did not contain broadcast quality editing."
- "clips started abruptly without any introduction about the nature or aim of the piece"s.
- "playlists ... did not function to link elements in the manner of a coherent longer format piece of content".
- "differences ... would lead users clearly to distinguish between this type of web content, and the linear services offered by the BBC".
- "Recital 24 of the AVMS Directive sets out that a characteristic of an on-demand service is that it competes for the same audience as television broadcast"
- and that "users would expect regulatory protection"
~ the BBC quoted Ofcoms own research on these last two points. Users do not think video on demand is like linear TV.
- "television was consumed in a passive way “in comfort” on the large screen, the short clips on the Service were designed to be shared through social media and viewed on devices (such as smart phones and tablets) which have smaller screens and lower resolution."

There are two legal tests.
Is the service one "whose principal purpose is the provision of audio visual material"?
Is the "service is one whose principal purpose is providing comparable programmes"?
The Ofcom ruling makes it quite clear that for a service to be comparable there must be something like it on broadcast television. This is exactly the point Playboy made in their appeal - hardcore porn is not available. That appeal was rejected.

Here is what Ofcom quote from the EU Directive: "Recital 24 of the Directive which states that:
“It is characteristic of on-demand audiovisual media services that they are ‘television-like’, i.e. that they compete for the same audience as television broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive.”"

ATVOD implements the Audiovisual Media Services Regulations 2009, an amendement to the Communications Act 2003 by inserting paras 368a to 368r. (hint: dont google the Act, the published wording has not been updated - see link below). This Act is UK law, not what Ofcom or ATVOD think.

The Act implements the EU Audio Visual Media Services Directive (link below). That is NOT UK law, but UK law should be consistent with it. Article 1(1)(g) defines an “on-demand audiovisual media service” in looser terms than the UK Act.

The section on Protection of Minors states that there is different regulation for linear TV and on demand services.
There are to be no restrictions on on demand "Content which is likely to impair minors". (Linear TV must use watersheds or encryption).

For on demand TV "Content which might seriously impair minors must … only be made available in such a way that ensures that minors will not normally hear or see such on-demand audiovisual media services". (There must be a total ban on linear TV).

Even by insisting on credit cards and a separate financial transaction every time Ofcom is exceeding the Directive for content that might "seriously harm" minors. There is a huge difference between "not normally" access services and "never".
Directive

I have not found an EU definition of "minor" but Section 1 of the Ofcom Broadcasting Code ("Protecting Under 18s") states quite clearly that:

Quote:Meaning of "children":
Children are people under the age of fifteen years.

So the question is, how many children under 15 have debit cards?

ATVOD Top Gear Appeal
2009 Regulations