Scope Determination
Service: BBCW on Mediaset
Service Provider: BBC Worldwide
The Determination set out below was made on 11th May 2011. It was the subject of a successful appeal to Ofcom. The appeal decision was published by Ofcom on 27 April 2012 and is available here.
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA (REQUIREMENT TO NOTIFY AN ON-DEMAND PROGRAMME SERVICE) AND SECTION 368D(3)(ZA) (REQUIREMENT TO PAY A FEE) OF THE COMMUNICATIONS ACT 2003:
Re: BBCW on Mediaset (at http://nettv.mediasetpremium.it/)
Background
ATVOD, as the appropriate regulatory authority, has determined in accordance with section 368BB(1) and section 368I(1) of the Communications Act 2003 (“the Act”) that the provider of the On-Demand Programme Service (“ODPS”) named above (“the Service”) is contravening or has contravened section 368BA (requirement to notify an ODPS) and section 368D(3)(za) (requirement to pay a fee) of the Act.
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. Section 368D(3)(za) requires that a provider of an ODPS must pay to the appropriate regulatory authority such fee as that authority may require under section 368NA of the Act.
The Authority 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.
The service provider wrote to ATVOD on 1st March 2011 seeking confirmation that BBCW does not operate an ODPS on the Mediaset platform in Italy. Having applied the statutory criteria to the Service, and having considered any response the service provider may have made to our previous letter, we wrote to the service provider on 24th March to inform them that we had come to a preliminary view that BBCW does in fact hold editorial responsibility for its content on the Mediaset platform and that this is therefore an ODPS provided by BBCW in respect of which a notification has not been given and in respect of which a fee has not been paid, and that our preliminary view was that the service provider is in contravention of sections 368BA (Requirement to notify an ODPS) and 368D(3)(za) (Requirement to pay a fee) of the Act. As the service provider is aware, and in line with ATVOD’s published ‘Guidance on who needs to notify’, ‘editorial responsibility’ is here defined as the exercise of general control over both the selection of the individual programmes included in the range of programmes comprising the on-demand programme service, and the manner in which those programmes are organised within that range.
In accordance with our powers under section 368BB(1) of the Act, we invited the service provider to make representations within 21 days. In a response of 15th April 2011 the service provider stated that:
- The BBCW programming does not form a discreet service but is simply part of the content offered by Mediaset as part of its on demand service.
- Despite contractual provisions, Mediaset has chosen where the BBC programming appears in the service without asking BBCW first.
- BBCW does not operate a VOD service in Italy and the concept of editorial responsibility can only be applied under section 168A to a service.
- Mediaset has or is in the process of notifying the entire service to the Italian VOD regulator, which would mean the programming would be subject to multiple notifications, contradicting the country of origin principle.
- Under the terms of the contract, BBCW cannot force Mediaset to exploit any content. Mediaset has full editorial responsibility for the Mediaset VOD service.
- The contract was prepared and agreed before the launch of the Mediaset VOD service. Clauses giving approval over how the BBC programming is included in the Mediaset service are to ensure that BBC branding is used correctly, in the event that Mediaset chooses to include the programming.
- Mediaset requires the metadata provided by BBCW in order to organise the service it operates.
ATVOD’s Final Determination
ATVOD appreciates that this is not a straightforward matter. However, having considered the service provider’s representations, and having considered relevant sections of the agreement between BBCW and Mediaset (‘the Contract’), ATVOD has determined that BBCW does operate an ODPS on the Mediaset platform.
As the details of the contract are confidential, we do not set out in this summary full details of the reasoning for our decision. However an outline of our reasoning is set out below:
- The contract places responsibility for selection of any programmes that do get shown onto BBCW.
- The contract identifies BBCW as having editorial control over how the programmes are used and right of approval over branding associated with the programmes and the environment from which the programmes are accessed.
- ATVOD noted BBCW’s assertion that in practice Mediaset have to date organised the material. However, it is difficult for this to override the clear facility in the contract for BBCW to have final say over the organisation of its content on the Mediaset platform. This is true regardless of the reasons why BBCW have included such a clause in the contract (to use the example given, to ensure that BBC branding is not associated with pornography).
- BBCW provides the metadata relevant to each programme within the service. ATVOD’s published ‘Guidance on who needs to notify’ suggests that “in determining the person with general control of the organisation of those programmes it is appropriate to consider who determines the relevant viewing information provided alongside the on-demand programme that may then be used in listing the programme in an on-demand programme service and which ensures that each individual programme is made available in a manner that secures the relevant standards requirements”.
- ATVOD does not accept BBCW representations suggesting that the concept of ‘editorial responsibility’ cannot be applied given that BBCW does not operate a VOD service in Italy. It is not a point of dispute that the Mediaset platform offers a retail VOD service. The issue is whether that comprises a number of services including one provided by BBCW. ATVOD’s published guidance suggests that ‘the extent of a particular on-demand programme service may be determined by other criteria, such as the identity of the service provider. Thus an aggregated retail video on-demand service may be comprised of a number of on-demand programme services from different providers, depending on which undertaking exercises editorial responsibility in respect of the programmes offered to users’ and ‘the extent of a person’s editorial responsibility will be relevant in determining who is to be treated as providing an on-demand programme service.’
- ATVOD has not been provided with any evidence that Mediaset has accepted editorial responsibility for the service in Italy. It is ATVOD’s view that BBCW holds editorial responsibility for an ODPS on the Mediaset platform and therefore that BBCW is the party required to notify the service to ATVOD.
Having concluded that the Service is an ODPS, ATVOD has determined that a contravention of section 368BA (Requirement to notify an ODPS) and section 368D(3)(za) (Requirement to pay a fee) has occurred because on the basis of the information available (a) the Service is an ODPS; (b) the provider of the Service, has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of an 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; and (c) the service provider has not paid the regulatory fee for the financial period ending 31 March 2011, as required by ATVOD under section 368NA of the Act.
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. If the service provider wishes to request an appeal of this determination to Ofcom, it should consult Ofcom’s current procedures as soon as possible. These may be found at: http://stakeholders.ofcom.org.uk/consultations/on-demand-programme-services/ Requests for appeal should be sent to: Tony Close at Ofcom, Riverside House, 2a Southwark Bridge Road, London, SE1 9HA or via email to tony.close@ofcom.org.uk
If no notification is made and/or no fee paid within the specified times, and no appeal to Ofcom is made, or any appeal made to Ofcom is unsuccessful or Ofcom determines that the request has been made out of time, ATVOD may proceed to issue an Enforcement Notification under section 368BB(1)(a) or section 368I(1) 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 or of suspension or restriction of the service under section 368K of the Act.