Scope Determination
Service: The Independent Video
Service provider: Independent Print Limited
The Determination set out below was made on 26th July 2011. This Determination was withdrawn on 21 December 2011.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: The Independent Video (http://www.independent.co.uk/video/)
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 1st November 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 (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 may be eligible for a reduced concessionary fee for the period to 31 March 2011. Fees for the year to 31 March 2012 follow a banded structure based on service provider revenue, with concessionary rates for non-commercial and small scale providers. Please see our website for details.
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 February 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 the service provider to make representations within 21 days. In a response dated 17th March 2011 the service provider stated that:
- The Independent Video is not a service in its own right.
- 98% of video views occur within news articles – only a very small proportion of users go directly to the video pages.
- The Independent online is covered by the AVMS Directive’s exemption for online newspapers and magazines.
- The AVMS Directive is aimed at ‘media service providers’ rather than individual pieces of content, and so an attempt to isolate certain web pages and treat them as a ‘service’ for the purpose of the Act contravenes the intention and purpose of the Directive.
- Even if considered as a service in its own right, the principal purpose of The Independent Video is to complement the newspaper’s other online content.
- The content is not ‘TV-like’. Videos are generally very short.
- The content is already regulated by the Press Complaints Commission (“PCC”)
ATVOD’s Final Determination
The Service
The Independent Video is an internet based service which can be found at http://www.independent.co.uk/video/. It can be reached via www.independent.co.uk, by clicking on the ‘Video’ tab which appears at the top of the online newspaper’s home page. This takes the viewer to a page on which video content is sorted by genre: ‘UK News’, ‘World News’, ‘Business News’, ‘Travel’, ‘History’, ‘Food’, ‘Fashion’ and ‘Motors’.
A single website or domain may contain more than one service, and The Independent Video 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 (as described above). Contrary to the representations made by the service provider, ATVOD believes that the viewer is not invited to consider the content as subsidiary or ancillary to the online version of the print newspaper. Many of the videos (eg. including those in the History, Travel or Motors sections) do not have any apparent connection to specific content in the online newspaper. In other cases the videos may have a specific connection to content in the online newspaper (and may be embedded in articles there), and yet when accessed via The Independent Video they contain no links back to those text articles. An annex gave the service provider an example of this lack of integration into the online newspaper’s broader site, including screen grabs of the video ‘MPs grill News Corp bosses’ which would reasonably be expected to bear a direct relation to specific text pieces, but does not appear to be linked to such pieces. It is ATVOD’s view that The Independent Video is presented as a consumer destination in its own right, and that regardless of how the service is currently used, programmes provided within The Independent Video can be viewed, enjoyed and made sense of without reference to the newspaper offering.
It is also ATVOD’s view that by providing the service outlined in this determination you become a ‘media service provider’.
Application of s368A(1)
Taking all the relevant considerations into account, including the representations made by the service provider, 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 form and content of the programmes is similar to that of many programmes normally included in television programme services, for example cookery programmes, historical documentaries and travel guides. We noted the service provider’s comments regarding the average length of these videos. However, stand-alone shorter programmes are regularly found on broadcast television services (for example music videos, news bulletins, drama shorts) and ATVOD does not believe that brevity necessarily precludes a programme from being considered ‘TV-like’ if it features key characteristics (in terms of form and content) of programmes normally included in television broadcast services. It is also the case that within each section of The Independent Video (eg. Travel), individual programmes run directly on to subsequent programmes in the section, interspersed with adverts, thereby creating the appearance of a longer programme eg. in the case of ‘UK News’ forming something akin to a broadcast rolling news programme.
Examples of television-like programmes:
Simon Calder Finds Another Edinburgh
At 3 mins 4 seconds, this follows the conventions of travel programmes on broadcast television. Its television-like features include: inclusion as part of a series, ‘Simon Calder Travel Diaries’, on-screen title, on-screen presenter common to series, travel footage of city, on-screen closing title.
Cuban Missile Crisis
Although also relatively short at 3 mins 10 secs, this nevertheless follows the conventions of history documentaries on broadcast television, with relevant features including: it’s being part of a series ‘A day that shook the world’, voice-over commentary / narration, archive film footage, narrative sequence following historical events, end credits to presenter (John Humphreys) and writer.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the service. As described above there are no links to non-video content within this service and non-audio-visual elements such as text descriptions of videos play a secondary role.
In a letter of 17th March the service provider stated that the principal purpose of The Independent Video is to complement the newspaper’s other online content. However, it is ATVOD’s opinion that in aggregating the content in this fashion, without links to that other online content, the service provider has created a service which has as its principal purpose the provision of programmes the form and content of which is comparable to the form and content of programmes normally included in television broadcast services.
(b) access to it is on-demand;
The programmes on The Independent Video service 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 Independent Video service 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 Independent Video service is made available on the open internet. Anyone with access to the internet can view the programmes on The Independent Video.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
The Independent Video service is provided by Independent Print Limited which has its registered office at 2 Derry Street, London, W8 5HF
In coming to this determination, ATVOD has taken note of Recital 28 of the Directive, which is not binding, and has concluded that The Independent Video 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.
We note the service provider comments regarding the Press Complaints Commission. However, the AVMS Directive does not allow implementation by means of self-regulatory arrangements such as the PCC. In the UK, implementation has been through a co-regulatory arrangement which has seen ATVOD designated as the appropriate regulatory authority for ODPS.
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 pay 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.