ATVOD

The Association for Television on Demand
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Sun Video

Scope Determination

Service: Sun Video

Service provider: News Group Newspapers Ltd

The Determination set out below was made on 11 February 2011. It was the subject of a successful appeal to Ofcom. The appeal decision was published by Ofcom on 21 December 2011 and is available here.

 

NOTICE OF DETERMINATION  THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA OF THE COMMUNICATIONS ACT 2003:


Re:  Sun Video (http://www.thesun.co.uk/sol/homepage/video/)

 

The Audiovisual Media Services Regulations 2010 came into force on 18 March 2010, introducing additional provisions into the Act in relation to certain video on-demand services. Section 368BA of the Act requires that every provider of an ODPS, as defined in section 368A of the Act, must not provide an ODPS before it has given a notification to the appropriate regulatory authority of its intention to provide that service. For an ODPS which was already being provided on 18 March 2010, notification should have been given before 30 April 2010. For an ODPS beginning after 18 March 2010, notification should have been given before the service began.

 

The Association for Television on-Demand (“ATVOD”) has been designated as the appropriate regulatory authority for editorial content in an ODPS and also for determining whether the provider of an ODPS has complied with its obligation to notify. 


On  25 October 2010 we wrote to inform the service provider that ATVOD had considered the Service and had formed a preliminary view that the Service may be an ODPS in respect of which a notification has not been given. However, before ATVOD reached a determination that a contravention of section 368BA had occurred in accordance with its powers under section 368BB(1) of the Act, we invited the service provider to make representations about that apparent contravention within 21 days.

 

In a response dated 10th December 2010 the service provider stated that:

 

-       Sun Video is ‘not a service in its own right’. Neither the Audiovisual Media Services Directive (EC Directive 2007/65/EC) (“the Directive”) nor the Communications Act 2003 (“the Act”) require or permit ‘a part of a service to be treated as a service’.


-       The videos are not TV-like. ‘Many of the video items are quite different from programmes normally included in television programme services not only because of their very brief running times but also... because their editorial integrity depends on the text-based articles in which they are embedded and does not stand alone’.


-       The video element is not the principal purpose of the service. It is part of an electronic version of The Sun newspaper.  ‘Some of the video items…do not make much or any sense on their own because they take their meaning from…the article in which they are embedded’.  Clips without a related article are ‘exceptions to the general rule’. The principal purpose of the video section is to ‘supplement the text element of the Site’.


-       ATVOD/Ofcom’s view of Recital 21 of The Directive (referred to in your letter as ‘Recital 28’) does not fully address the point that Recital 21 makes, ‘which is not concerned with the identity of the service provider…but with the nature of the service. It is concerned with electronic versions of newspapers and magazines…[The Sun Video] is part of an electronic version of a newspaper’.


Taking those representations and the relevant considerations into account, ATVOD has concluded that the Service is an ODPS. This is because the Service fulfils each of the relevant criteria set out in section 368A(1) of the Act as follows:

 

(a)        its principal purpose is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services;

 

A single website or domain may contain more than one service, and Sun Video section does appear to ATVOD to constitute a service in its own right, albeit a service which sits alongside an electronic version of a newspaper. The video content is aggregated on a discrete section of the website providing a catalogue of viewing options. Whilst the videos may in some cases have a specific connection to content in the newspaper, the viewer is not invited to consider the content as subsidiary or ancillary to the online version of the print newspaper. Sun Video is presented as a consumer destination in its own right, and the programmes provided within Sun Video service can be viewed, enjoyed and made sense of without reference to the newspaper offering.


The programmes themselves are comparable to the form and content of programmes normally included in television programme services, in that they follow the conventions of TV programmes, with edited opening sequences, on-screen captions, music soundtrack and presenters (for example ‘Exclusive Jay Kay Chat’ which is over 13 minutes long). Even in the briefer programmes this similarity of form holds true (for example ‘Meet the Page 3 Idol Finalists’, approx. 5 mins). The content of the programmes is also similar to the content of many programmes normally included in television programme services, for example profiles of cultural figures, motoring reviews, and soft ‘adult’ material.


ATVOD considers that the principal purpose of ‘Sun Video is to provide these TV-like programmes. As noted above, a thematic or topical connection to the (online or offline) newspaper offering is not sufficient to make the video service  an integral and ancillary part of the online version of the magazine, given the presentation of the service as a video on demand service in its own right.  It is ATVOD’s view that where a video does have a related text article, the programmes can and do make sense without reference to that article (for example ‘Exclusive Jay Kay Chat’).  There are also a significant number of programmes which do not link to a related text article at all (eg. ‘2001: A Babe Odyssey’).


 (b)       access to it is on-demand;

 

Sun Video can be watched at a time of the viewer’s choosing.


(c)        there is a person who has editorial responsibility for it;

 

The programmes on Sun Video have been selected and organised into a coherent catalogue of viewing options with a distinct editorial proposition.


(d)        it is made available by that person for use by members of the public; and

 

Sun Video is made available on the open internet. Anyone with access to the internet can view the programmes on Sun Video.


(e)        that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.

 

The registered office of the provider of the service, News Group Newspapers Ltd, is: 3 Thomas More Square, E98 1XY


 In coming to this determination, ATVOD has taken note of Recital 21 of the Directive, which is not binding, and has concluded that Sun Video is a service in its own right which is distinct from the online version of the newspaper and which has as its principal purpose the provision of programmes which are comparable to the form and content of programmes normally included in television programme services.


ATVOD also noted the point made in the representations that the URL and the title of the video section do not contain the phrase ‘TV’ as ATVOD’s previous correspondence suggested.  In fact, as shown in screen grabs taken by ATVOD, the URL and title of the section have been changed since our original correspondence, from ‘Sun TV’ to ‘Sun Video’ and from http://www.thesun.co.uk/sol/homepage/video/300101/Sun-TV-Video.html to http://www.thesun.co.uk/sol/homepage/video/


ATVOD would also note that the ‘prominent’ notice regarding the Press Complaints Commission referred to in the representations appears – at the time of writing – on The Sun home page only and not on the front page of the Sun Video service.

 

Having made the determination that the Service is an ODPS,  ATVOD has concluded that there are reasonable grounds for believing that a contravention of section 368BA has occurred because on the basis of the information available (a) the Service is an ODPS, and (b)  the provider of the Service has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of  the intention to provide that service or, if the Service was already being provided on 18 March 2010, did not give a notification before 30 April 2010.

 

The service provider may request an appeal by Ofcom of ATVOD’s decision that the Service is an ODPS or that it is the provider of the ODPS. Ofcom requires appeals to be made in writing within 10 working days of the date of the relevant decision.  In urgent cases a shorter period may apply. Appeals must be made according to Ofcom’s current procedures. These may be found at: http://stakeholders.ofcom.org.uk/consultations/on-demand-programme-services/

 

If no appeal is made or if any appeal to Ofcom is unsuccessful or if Ofcom determines that the request has been made out of time, ATVOD may issue an enforcement notice under section 368BB(1)(a) of the Act following consultation with Ofcom. ATVOD may also refer the matter to Ofcom for consideration of the imposition of a financial penalty under section 368BB(1)(b) of the Act.