ATVOD

The Association for Television on Demand

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 5 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.

 

We received no representations after 5 October 2010, but in previous correspondence dated 24 August 2010 the provider had stated that:

 

‘BNPtv does not qualify for notification under the Act…[it is] non-economic in activity and is not in competition with television broadcasting….The BNPtv website is..a video sharing website to which a number of people post and where the content is self-generated and is not part of any economic activity…BNPtv is content produced by a political party where the content is very narrowly focussed on the dissemination of information to members about the activities of the party’.

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;

 

The BNPtv service available at http://bnptv.org.uk/  provides access to over 290 programmes which range in length from three minute music videos (eg. ‘I see You – By Dave Hannam’) and news/documentary style short programmes (eg. ‘A look back at last years RWB Festival’) to footage of speeches (eg. ‘After Dinner Speeches – Bruges’, 12 minutes) and longer news style footage (eg. ‘Free Speech 2 – The Verdict’, 39 minutes). Although some programmes are largely unedited, much is edited into a format which is directly comparable to documentary, current affairs or news programmes normally included in a great number of television programme services, and the content (footage of  political events and reports on current affairs) is also directly comparable to the content of programmes normally included in television programme services . The form and content of the music videos is comparable to the form and content of music videos normally included in television programme services. Even the unedited programmes (eg of political speeches) are comparable in form and content to programmes normally included in a number of specialist television programme services devoted to political or religious themes. The service also includes a section entitled ‘TV Broadcasts’ which includes Party Political Broadcasts apparently made for television programme services.

 

The website’s clear principal purpose is the provision of this video material and the homepage directly compares BNPtv to the BBC with the words ‘We may be tiny in comparison to the BBC, but our voice is growing ever louder!’ (See Annexe 1).

 

There are short text descriptions of the programmes but no substantial text element.

 

 (b)       access to it is on-demand;

 

Anyone with access to the Internet can access the site, choose from the drop-down menu, click on an image and press ‘play’ to view the material. Users can therefore watch the programmes at a time of their own choosing

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

 

The catalogue of programmes has clearly been selected and organised to form a coherent and distinct editorial proposition.  There is a section of the website entitled ‘contribute’ in which viewers are encouraged to send in short videos of their local areas. However, this is via an administrative email address and there is no facility for directly uploading videos.  The majority of content on the site seems clearly produced specifically for/by the BNP with a centralised editorial function exercising responsibility for selecting and organising the programmes that appear on the service.

 

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

 

The service is made available on the website which is open to all. Access is not restricted in any way.  Contrary to the claim that this site is focussed on dissemination of information to members, it includes Party Political Broadcasts produced to address non-members and other news material of potential interest to the general public.

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

 

BNPtv is controlled by the BNP, PO Box 14, Welshpool, Powys,  SY21 0WE

 

With regard to BNPtv’s claim that the service is non-economic in activity, ATVOD notes that in the context of Recital 16 of the Audiovisual Media Services Directive, ‘economic’ is interpreted in the widest sense to encompass all forms of economic activity, however funded.  BNPtv includes an ‘online shopping channel’ accessed via the link ‘buy dvds’ and through which DVDs can be purchased by mail order

 

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.

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