Service: MTV content on Virgin Media
Service provider: MTV Networks Europe
The Determination set out below was made on 6th July 2011. It was the subject of an appeal to Ofcom which was not upheld. Ofcom published its appeal decision on 18 January 2012 and the full text of that appeal decision is available here.
Determination that MTV Networks Europe (“MTV”) is the provider of the On Demand Programme Service (ODPS) below:
Re: MTV content on Virgin Media
On 29th April 2010, MTV notified the MTV service (ODPS00005) to ATVOD. However, following correspondence with ATVOD, MTV wrote to us requesting that we remove the Virgin Media platform from its notification on the grounds that Virgin Media held editorial responsibility for the MTV content. ATVOD has since entered into more detailed correspondence regarding the Virgin Media platform, particularly on the issue of ‘editorial responsibility’.
As MTV is aware, and in line with ATVOD’s published ‘Guidance on who needs to notify’, ‘editorial responsibility’ is here defined as the exercise of general control over both the selection of the individual programmes included in the range of programmes comprising the on-demand programme service, and the manner in which those programmes are organised within that range.
This is a difficult area, and ATVOD has come to conclusions on editorial responsibility based on the contractual (and other) evidence provided by both MTV and Virgin Media.
ATVOD believes that MTV holds editorial responsibility for its content on the Virgin Media platform, as implied by the service provider’s original notification to ATVOD, for the following reasons:
- According to contractual evidence presented to ATVOD by Virgin Media (specifically the relevant Agreement by and between MTV and Virgin Media), MTV has agreed it is the provider of the on-demand programming service comprising the MTV content the subject of the Agreement and has ‘editorial responsibility’ over the same, save in respect of any insertions or advertising placed by Virgin Media in or around the MTV content. According to this contractual evidence MTV has also agreed to notify this same service to ATVOD or other appropriate regulatory authority.
- MTV suggests that additional contractual evidence it has presented to ATVOD from the same Agreement and other submitted evidence as to how the parties work in practice is at odds with the contractual evidence presented to ATVOD by Virgin Media, and demonstrates that the selection of content, its arrangement, how it is presented to subscribers, how the service is branded, promoted and marketed is all controlled by Virgin Media, and therefore the evidence presented to ATVOD by Virgin Media should be disregarded for these purposes.
- This is a complicated area, but where two entities enter into a binding contract that assigns editorial responsibility to one party, the facts on the ground would have to be unambiguously contradictory to this assignation in order for ATVOD not to consider that clause of the contract as determinative.
- In relation to this case, however, ATVOD again considers the matters of selection and organisation of content to be ambiguous.
- On the matter of selection, while MTV selects an ‘avails list’, Virgin Media is entitled but not obliged to select any given item from that list.
- On the matter of organisation, we would agree that control over the advertising and branding around a service implies a degree of control over its organisation. However, MTV as well as Virgin Media is entitled to add its own branding communication promoting their consumer brand at the beginning of VOD items and MTV provides marketing and promotional materials. It is MTV who provides the metadata which accompanies programmes in the service, and ATVOD’s published ‘Guidance on who needs to notify’ states that ‘in determining the person with general control of the organisation of those programmes it is appropriate to consider who determines the relevant viewing information provided alongside the on-demand programme that may then be used in listing the programme in an on-demand programme service and which ensures that each individual programme is made available in a manner that secures the relevant standards requirements’. Virgin may organise MTV content by channel and genre / alphabetically. However, as indicated in ATVOD’s published guidance, such techniques used by aggregators to facilitate the location of content ‘would not, on their own, constitute “selection and organisation” of programmes, as these are solely presentational techniques’.
- Given a degree of ambiguity in determining the exercise of general control over selection and organisation of programmes, ATVOD does not believe that there is a good reason to disregard the clear contractual agreement that MTV is the provider of the service with respect to obligations applying to ODPS.
- We acknowledge MTV’s point that there is an apparent discrepancy between the fact that BT Vision and See Saw have accepted editorial responsibility for MTV content, while Virgin Media has not. ATVOD has not seen the relevant contractual evidence with respect to BT Vision and See Saw, and hence has relied on their declaration that they hold editorial responsibility and the fact that this has not been challenged by MTV. The declarations by BT Vision and See Saw constitute a material difference between these cases and that of MTV / Virgin Media.
MTV 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 MTV 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