ATVOD

The Association for Television on Demand
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Elle TV

Scope Determination

Service: Elle TV

Service provider: Hachette Filipacchi (UK) Ltd

The Determination set out below was made on 11th February 2011. This Determination was withdrawn on 21 December 2011.

 

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


Re:  “Elle TV” (http://www.elleuk.com/elletv)


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 19 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 responses dated 8th November 2010 and 2nd December 2010 the provider stated that it did not believe Elle TV to be an ODPS in respect of which a notification has not been given, for the following reasons:

 

1) The Audiovisual Media Services Directive (EC Directive 2007/65/EC) (“the Directive”) was never intended to capture electronic versions of newspapers and magazines. Elle TV is not an on-demand service in its own right. It  is clearly incidental to a broader offering. Despite its name, the content is integral to the online/print magazine.


2) Elle TV is not ‘mass media’ in the terms of the Directive.


3) Elle TV is not a ‘television like’ service, i.e. its content is not comparable to the form and content of programmes normally included in television programme services. Such clips are obviously intended to promote Elle magazine and are not in any way in competition with television broadcasting. Furthermore, all the clips are approximately 3 minutes in duration.


4) The “principal purpose” of Elle TV is not to provide television-like programmes. On the contrary, its sole purpose is to augment, expand and publicise the Elle magazine offering. Everything included on Elle TV is fashion or beauty related and is an integral and ancillary element of the broader magazine offering. The majority of the clips available are linked either to a news item, front cover or other feature of the magazine.


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 Elle TV does appear to ATVOD to constitute a service in its own right, albeit a service which sits alongside an electronic version of a magazine. The video content is aggregated on a discrete section of the website, providing a catalogue of viewing options which is separately branded as ‘Elle TV’.  Whilst the videos may have a thematic or, in some cases, a specific connection to content in the magazine, the viewer is not invited to consider the content as subsidiary or ancillary to the online version of the print magazine. Elle TV is presented as a consumer destination in its own right, and the programmes provided within the Elle TV service can be viewed, enjoyed and made sense of without reference to the magazine offering.


The programmes themselves are ‘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. While many of the videos are quite short, others are more long form, eg. ‘Shop Girl to Stylist: The Final’ which runs to nearly 13 minutes and ‘Elle Talks to Giles’ which is over 56 minutes long. The ‘Elle TV’ logo appears at the beginning and end of many of the videos. The content of the programmes is also similar to the content of many fashion themed programmes normally included in television programme services.


ATVOD considers that the principal purpose of ‘Elle TV’ is to provide these TV-like programmes. As noted above, a thematic or topical connection to the (online or offline) magazine 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.


(b)        access to it is on-demand;

 

Elle TV programmes 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 Elle TV 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

 

Elle TV is made available on the open internet. Anyone with access to the internet can view the programmes on Elle TV. 


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

 

Elle TV is operated from 64 North Row, London W1K 7LL which is also the registered office of the provider of the service, Hachette Filipacchi (UK) Ltd.

 

 In coming to this determination, ATVOD has taken note of Recital 21 of the Directive, which is not binding, and has concluded that Elle TV is a service in its own right which is distinct from the online version of the magazine 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 Elle TV’s suggestion that the regulation of Video On Demand services should be conducted under a ‘policy of minimum scope’, in line with the intention of the Government in implementing the Directive.  ATVOD would note that this intention informed the drafting of the AVMS Regulations. It is indeed only by reference to these Regulations that ATVOD has formed its determination in relation to Elle TV.


ATVOD further noted Recital 18 of the Directive ,which is not binding. The term ‘mass media’ does not appear in the Communications Act 2003 as amended by the AVMS Regulations 2009 and 2010, and in any case the definition provided in Recital 18 would not exclude the Elle TV service from the scope of the Directive. It is ATVOD’s view that services made available for viewing by the general public on the internet are, in the terms set out in section 368A(1)(d) of the Act, ‘made available..........for use by members of the public’.

 

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.