Scope Determination
Service: Eros On Demand
Service Provider: Eros International Limited
The Determination set out below was made on 26th April 2011.
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: Eros On Demand (http://ondemand.erosentertainment.com/)
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 as 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. ATVOD wrote to the service provider on 25th October 2010 informing them of the statutory obligation to notify provision of an ODPS, and setting out the statutory criteria which define an ODPS. We advised the service provider to refer to ATVOD’s ‘Guidance on who needs to notify’ which is available on our website at (www.atvod.co.uk) and to seek legal advice if appropriate. This letter made clear that a fee was payable with regard to each ODPS and that the fee for the period to 31 March 2011 was £2,900 per service. Small scale providers who can demonstrate that they have or will have genuine difficulties in paying the full fee – either because: they would be inhibited from being able to provide a new OPDS or would be prevented from continuing to provide an existing one; and/or there are exceptional reasons justifying why they should not be required to pay the full fee – may be eligible for a reduced concessionary fee for the period to 31 March 2011. Fees for the year to 31 March 2012 are expected to be set shortly following a public consultation which closed on 1 April 2011.
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 January 2011 to inform them that we had come to a preliminary view that the Service is an ODPS 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.
In accordance with our powers under section 368BB(1) of the Act, we invited you to make representations within 21 days. To date, no such representations have been received.
ATVOD’s Final Determination
The Service
The Eros On Demand service is accessed via the internet at the URL http://ondemand.erosentertainment.com/. It can also be reached via the main Eros website (http://www.erosentertainment.com/), the key components of which are as follows: A single large viewing box at the top of the page offers displays adverts for either ‘now in theatres’, ‘new on dvd’, ‘video on demand’ or ‘forthcoming films’. Another smaller viewing window plays trailers for various films. Boxes down the left side of the page provide adverts for / links to different Eros services. The ‘Shop DVDs’ box takes the user to a DVD store page. All the ‘On Demand’ tabs (‘movies’, ‘videos’, ‘music’, ‘trailers’, ‘events’) take the user to the On Demand service (http://ondemand.erosentertainment.com/).
A single website or domain may contain more than one service, and Eros On Demand does appear to ATVOD to constitute a service in its own right, presented as a consumer destination in its own right with programmes that can be viewed, enjoyed and made sense of without reference to the broader Eros website.
Application of s368A(1)
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 programmes on Eros On Demand are comparable in terms of form and content to broadcast television programmes such as films, music videos, travelogue programmes and entertainment news bulletins.
Examples:
“Darling”
Prefaced by a short advert for Erosentertainment.com, the Indian film board classification certificate, and the logos of various involved companies, this runs at 2 hours, 7 minutes and 6 seconds and follows the narrative and stylistic conventions of a feature film drama, including: Opening title sequence with cast credits; a plot involving adultery and murder; short ad-style breaks in which known figures say ‘you are watching erosentertainment.com’; extensive end credits to the side of which a viewing window plays a song and dance routine / music video.
“Fully Fed Up – 1”
Running at 23 minutes, this generally follows the conventions of a travel programmes, with ‘TV-like’ features including: An edited, stylised animated opening sequence with music soundtrack culminating in on-screen title ‘Fully Fed Up’; an on-screen presenter who is introduced with an on-screen caption (“Seema Chandra”) and provides voice-over for scene-settling footage (eg. views of Cairo) and interviews with locals cooking; on-screen graphics introducing different sections of programme (eg. ‘Street Food in Dubai’); close-up shots of food and on-screen scrolling captions indicating menus (eg. “Prawn Chilli Masala”); end credits and a final ‘NDTV Lifestyle’ logo.
It is ATVOD’s opinion that the provision of these ‘TV-like’ programmes is the principal purpose of the service. When the Eros On Demand home page is accessed, a short video automatically plays, advertising ‘Video On Demand’ both verbally and in on-screen text. The service is given over to providing on-demand programmes, with any text elements clearly of secondary importance.
(b) access to it is on-demand;
Eros On Demand 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 Eros On Demand 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
Eros On Demand is made available on the open internet. Anyone with access to the internet and – in some instances – who pays the necessary fees can view the programmes
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Eros On Demand is provided by Eros International Limited which has its registered office at Milner House, 13 Manchester Square, London W1U 3PP.
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.
If the service provider notifies this service within 14 days, and pays the subsequent invoice within 14 days of its issue, no further enforcement action will be taken.
Alternatively, 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.