Scope Determination
Service: Indie Movies Online
Service Provider: Indie Movies Online Ltd
The Determination set out below was made on 18th May 2011. This service is no longer in operation.
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA (REQUIREMENT TO NOTIFY AN ON-DEMAND PROGRAMME SERVICE) OF THE COMMUNICATIONS ACT 2003:
Re: Indie Movies Online (http://www.indiemoviesonline.com/)
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).
Background
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 On-Demand Programme Service (“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 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 16th August 2010 informing you 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 you may have made to our previous letter, we wrote to the service provider on 1st November 2010 to inform them 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. To date, no such representations have been received.
ATVOD’s Final Determination
The Service
The service is accessed via the internet at the URL http://www.indiemoviesonline.com/. The home page has tabs across the top linking to ‘Free Movies’, ‘Documentaries’, ‘Short Films’,’ Magazine’, ‘Festivals’, and ‘Forums’. At the top of the page a large advert for a film can be clicked on to view that film. Below this are found thumbnail links to other recommended films, sections ‘In the News’ and ‘Reviews’, and information about the site. Down the right hand side of the home page are links to other sections including ‘IMO Magazine’ and topical sections such as the ‘Cannes Film Festival’.
Clicking on the ‘Free Movies’, ‘Documentaries’ or ‘Short Films’ tabs brings up a range of genre options, within which films available for viewing are listed. There is also a link to ‘See All Movies’.
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 Indie Movies Online are comparable in terms of both form and content to programmes shown on linear television, notably in this case films and documentaries. In some cases the programmes on Indie Movies Online have themselves been included in television programme services. Examples of television-like programmes (each preceded by an advert when accessed):
The Boss of it All
Lars Von Trier’s comedy runs at 96 mins 37 secs and includes the following features typical of feature films shown on television: Opening sequence, on-screen subtitled title; English subtitles of spoken Danish throughout; narrative sequence following story of actor employed to masquerade as the head of a business; end credits to cast and crew.
The Last Baboons of Good Hope
A nature documentary running at 51 mins 45 secs, including the following TV-like features: Opening sequence with voice-over introduction and subsequent voice-over narration; on-screen title ‘The Last Baboons of Good Hope’; narrative progression following fortunes of a group of baboons in South Africa faced with eg. a large fire storm; ‘talking heads’ interviews with, for example, baboon monitors; footage of the baboons; end credits to crew, with accompanying music and final ‘Red Pepper pictures’ logo.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the service. Links to film content are dominant on the home page of the site, the service name (‘Indie Films Online’) suggests that the principal purpose is the provision of films, and text description of the site on the home page states that ‘IndieMoviesOnline is a fully licensed video-on-demand site, packed full of free movies, documentaries and short films to watch online’. Elements such as text film reviews and news appear to be secondary to the provision of films for viewing.
(b) access to it is on-demand;
Indie Movies Online 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 Indie Movies Online 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
Indie Movies Online is made available on the open internet. Anyone with access to the internet / and who obtains the necessary subscription can view the programmes.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
ATVOD notes the text at http://www.indiemoviesonline.com/terms-of-use which includes the statements that ‘IMO is incorporated and registered in Barbados’ and ‘These Terms of Use are governed by, and construed in accordance with, the laws of Barbados without giving effect to principles of conflicts of law. In the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts located in Barbados’. However, ATVOD also notes that Indie Movies Online has a registered office in the UK at Sion Hall, 56 Victoria Embankment, London EC4Y 0DZ. The Indie Movies Online website gives a London telephone number as a contact for those wishing to distribute their films on Indie Movies Online, and lists a number of UK based staff in its ‘Editorial’ department. In line with ATVOD’s published ‘Guidance on who needs to notify’, and in the absence of evidence to the contrary, ATVOD takes the service to be established in the UK given its UK office and the implication that editorial decisions are taken in the UK and a significant part of the workforce involved in the pursuit of the on-demand programme service operates in the UK.
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) as the provider of the Service, you have not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of your intention to provide that service or, if the Service was already being provided on 18 March 2010, you 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. If you wish 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 any appeal you make 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.