ATVOD

The Association for Television on Demand
Contact

Sunday Times Video Library

Scope Determination

Service:  The Sunday Times Video Library

Service provider: Times Newspapers 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 This Determination was withdrawn on 21 December 2011.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: The Sunday Times Video Library (http://www.thesundaytimes.co.uk/sto/multimedia_library/videogallery/?tab=5)


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  25 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 a response dated 15th November 2010 the provider stated that:

 

-       Neither the Audiovisual Media Services Directive (EC Directive 2007/65/EC) (“the Directive”) nor the Communications Act 2003 (“the Act”) require or permit ‘a part of a service to be treated as a service’.


-       The Video Library does not offer TV-like material.


-       The Video Library material is ‘incidental and ancillary’ to the online service consisting of electronic versions of the Times newspapers. The provision of the Video Library material is not the “principal purpose” of the service.


-       ATVOD/Ofcom’s view of Recital 28 of The Directive ‘does not fully address the point that Recital 28 makes, which is not concerned with the identity of the service provider…but with the nature of the service. It is concerned with electronic versions of newspapers and magazines…the Video Library is part of an electronic version of a newspaper’.


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


The programmes themselves 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.  Examples would include the short arts documentaries ‘Basking In The Afterlight’ and ‘One Hundred Years of Celluloid’. The content of the programmes is also similar to the content of many programmes normally included in television programme services, dealing with reviews of culture, motoring, and so on.


ATVOD considers that the principal purpose of ‘The Sunday Times Video Library’ is to provide these TV-like programmes. As noted above, a thematic or topical connection to the (online or offline) newspaper 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;

 

The Sunday Times Video Library 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 The Video Library 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

 

The Video Library is made available on the open internet. Anyone with access to the internet who pays the required fee can view the programmes on The Video Library.


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

 

The registered office of the provider of the service, Times Newspapers Ltd, is: 3 Thomas More Square, E98 1XY

 

In coming to this determination, ATVOD has taken note of Recital 21 of the Directive, which is not binding, and has concluded that The Sunday Times Video Library is a service in its own right which is distinct from the online version of the newspaper 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.

 

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.