The new ATVOD “Statutory Rules” for providers of on-demand programme services cover all editorial content including product placement and sponsorship. Omar Bucchioni reports on the new procedures for processing complaints that these Rules have been breached.
Who: The Association for Television On-Demand (ATVOD)
When: September 2010
Law stated as at: 27 September 2010
The Audiovisual Media Services Directive 2007 required member states to implement into local laws a minimum set of standards with which providers of certain video on demand (VOD) services are required to comply.
In the UK these requirements were implemented through various amendments to the Communications Act 2003. As regards editorial content of VOD services, Ofcom has delegated powers and duties to ensure compliance with the new rules to the Association for Television On-Demand (ATVOD).
ATVOD does not regulate advertising that appears in those services since these powers and duties have been delegated by Ofcom to the Advertising Standards Authority (ASA).
ATVOD has set out the procedures – in force from 20 September 2010 – which will be followed in handling complaints concerning editorial content on video on demand programme services.
ATVOD’s role will be to determine whether the content in respect of which the complaint has been made breaches the statutory requirements for these services. These requirements are reflected in ATVOD’s published rules.
These rules (“Rules”) together with “non-binding guidance” were first published by ATVOD on 15 September 2010, titled snappily “Rules & Guidance. Statutory Rules and Non-binding Guidance for Providers of On-Demand Programme Services.”
The principal areas covered by the Rules are:
- harmful material likely to incite hatred;
- protection of under 18s from content likely to seriously impair their physical, mental or moral development;
- product placement;
- information to be provided to users of VOD services.
Summary of how to complain
ATVOD is expecting a complainant to have first tried to resolve the complaint with the VOD service provider directly, with a copy of any complaint sent to the ATVOD at the time of making the complaint to the service provider – details are on the ATVOD website, here.
Complaints that raise issues which may amount to a serious breach of the Rules may be considered by ATVOD without the complainant having first attempted to resolve the matter with reference to the service provider. Such cases include, but are not limited to, those in which the complaint raises concern that the service provider may be including material likely to encourage or to incite the commission of crime or to lead to disorder.
If the complaint is not resolved satisfactorily by the service provider, or the service provider has indicated in writing that the complaint should be settled by ATVOD, then the complainant may refer the complaint to ATVOD.
To make a complaint, complainants can either e mail ATVOD at firstname.lastname@example.org or write to ATVOD Complaints, PO Box 561, Walton on Thames, KT12 9DA.
All complaints should include sufficient details for ATVOD to be able to investigate, (i.e. the name, series number, and episode number or title of the programme complained about, the date – and if relevant – the time it was provided, the service on which it was provided, the nature of the complaint, and the complainants full contact details.
The completed complaints form should be returned to ATVOD, together with a copy of all correspondence and notes of any other communication between the complainant and the service provider concerning the complaint.
Although ATVOD will publish its Determination, ATVOD‟s considerations and any submissions regarding the complaint will otherwise remain confidential between the parties.
Summary of initial Assessment
The ATVOD firstly decides whether the VOD service is covered by the requirements of the Act and if the complaint raises a potential breach of the statutory requirements.
If ATVOD determines that the service provider is:
- NOT regulated under the Act the service is not regulated under the Act or the complaint cannot amount to a contravention of the relevant requirements, the complaint will be closed automatically (the complainant is still entitled to request a review).
- Regulated under the Act, the ATVOD will try to solve informally any issues with the service provider; however, if after 28 days the complaint has still not been resolved, the ATVOD will formally consider the complaint.
Summary of investigation
Complaints will be investigated by ATVOD‟s Executive, and complaints will be decided by a sub-committee of the ATVOD Board to whom the ATVOD Board has delegated the consideration and Determination of the complaint.
The sub-committee will have a majority of independent members and any director of ATVOD who is employed by the VOD service provider subject to the complaint or otherwise subject to any actual or potential conflict of interest is excluded from any consideration or Determination of that complaint.
Where ATVOD considers, at this stage, that there may be a case for the VOD service provider to answer, it will write to the service provider setting out the applicable Rule and corresponding statutory requirement under which it is considering the complaint, together with its grounds for believing that a contravention of the Rule (and, accordingly, of section 368D) is occurring or has occurred and request a written response within 10 working days. ATVOD may raise issues other than those raised by the complainant, and may correspond with the service provider more than once in the course of the investigation.
ATVOD will then consider the response(s) of the VOD service provider and decide whether or not a contravention has occurred. The ATVOD response will normally be published.
Why this matters:
The new procedure which has come into force on 20 September 2010 sets out the consequences which a VOD service may face in case the ATVOD upholds a complaint:
Against a VOD service provider, it may at its discretion, and following consultation with Ofcom, issue an Enforcement Notification under the Act. This may require the service provider, including:
- to cease providing or restrict access to a specified programme or programmes of a specified description;
- to provide additional information to users of the service;
- publish a correction; and/or
- publish a statement of ATVOD‟s findings.
As an alternative to the issuing of an Enforcement Notification ATVOD may at its discretion refer the VOD service provider to Ofcom to consider the imposition of a financial penalty or suspension of the service.
Where a service provider does not comply with an Enforcement Notification ATVOD will refer the VOD Service provider to Ofcom to consider the imposition of a statutory sanction. ATVOD will provide Ofcom with a view of the type and level of any sanction which may be appropriate to impose.
Further information can be found here.