Scope Determination
Service: Demand Adult
Service provider: Playboy TV UK Limited
The Determination set out below was made on 24 September 2010. It was the subject of an appeal to Ofcom which was not upheld. Ofcom published its appeal decision on 13 May 2011 and the full text of that appeal decision is available here.
A notification was subsequently made with regard to this service.
NOTICE OF DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA OF THE COMMUNICATIONS ACT 2003:
Re: DEMAND ADULT (http://www.demandadult.co.uk/)
ATVOD, as the appropriate regulatory authority, has determined in accordance with section 368BB(1) of the Communications Act 2003 (“the Act”) that the provider of the On-Demand Programme Service named above (the “Service”) is contravening or has contravened section 368BA of the Act (failure to notify an on-demand programme service).
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 28 July 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.
No such representations were received.
Taking all 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 service located at http://www.demandadult.co.uk/ offers ‘adult’ programmes to view on a ‘streaming’ basis. Although the website offers access to some still images, the principal purpose is clearly to provide access to video content.
The ‘adult’ programmes included in the service are offered under the headings ‘Scenes’, ‘Films’, ‘Series’ and ‘Porn Stars’. The programmes are comparable in form and content to ‘adult’ programmes normally included as programmes in television programme services. Although the content may be more explicit than is currently permitted on linear TV services in the UK, the form and content is nevertheless comparable to ‘adult’ programmes broadcast on linear UK TV services and is essentially the same as ‘adult’ programmes which are frequently broadcast on linear TV channels in other EU jurisdictions.
(b) access to it is on-demand;
Each programme is accessed by the user clicking on the required content after paying the required fee (monthly subscription) and logging in. The programmes are therefore viewed at a time of the user’s choosing.
(c) there is a person who has editorial responsibility for it;
The programmes made available on the website are professionally made and have been selected and organised to form a coherent consumer offering with a distinct editorial proposition.
(d) it is made available by that person for use by members of the public;
Access to the website is not restricted in any way and the service is made available for use by members of the general public.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
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.