Spurred by the looming deadline for implementing the EU Audio Visual Media Services Directive, Ofcom is consulting on video-on-demand regulation. One proposal relates to how advertising in and around “VOD” should be regulated. By demand Nav Sunner reports.
When: 14 September 2009
Law stated as at: September 2009
On 19 December 2007 the Audio Visual Media Services Directive (2007/65/EC) was signed off by EU lawmakers (the "AVMS Directive").
The AVMS Directive (superseding the Television Without Frontiers Directive) was passed to apply a basic set of standards to broadcasting services in Europe. As part of this standardisation the AVMS Directive was drafted to cover all forms of audio visual media services including video-on-demand services ("VOD Services"). Thus, television broadcasting services distributed on non-traditional platforms (such as the internet or mobile phones) are to be regulated in the same way as those distributed on conventional platforms.
The AVMS Directive requires that all EU member states must implement it by 19 December 2009.
Following a consultation that commenced on 25 July 2008, the Department for Culture Media and Sport ("DCMS") concluded that Ofcom should be given powers to regulate VOD Services in the UK. As part of these powers Ofcom is to be allowed to designate and delegate power to an industry led co-regulatory body to regulate the content in VOD Services.
The DCMS also decided to give Ofcom powers to regulate advertising in VOD Services and it expected Ofcom to designate and delegate powers to the Advertising Standards Authority ("ASA") as its co-regulator. However, notwithstanding delegation to the other bodies, Ofcom will retain "back-stop" powers to deal with serious breaches of the standards and the right to intervene. A first draft of the regulations to be used to implement the AVMS Directive was made available to stakeholders in May 2009, and an updated draft sent out in July 2009.
Should ASA be delegated power to regulate VOD advertising?
As the deadline for implementation of the AVMS Directive approaches, Ofcom has published a consultation. Amongst other things, Ofcom is inviting stakeholders to submit their views concerning the proposal to designate the ASA as the co-regulator for advertising in VOD Services and to suggest alternatives if they think it appropriate (currently there is a co-regulatory model in place in respect of TV advertising which is overseen by the ASA under the Television Advertising Standards Code).
The AVMS Directive requires that advertising in VOD Services complies with minimum standards:
(a) It should be readily recognisable. In particular surreptitious advertising is prohibited, as are subliminal techniques.
(b) It should not prejudice respect for human dignity, or include or promote discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
(c) It should not encourage behaviour that is prejudicial to health or safety, or grossly prejudicial to the protection of the environment.
(d) Advertising is not permitted for cigarettes and other tobacco products, or for prescription-only medicinal products or medical treatment; advertisements for alcohol products may not be aimed at minors and shall not encourage immoderate consumption of alcohol.
(e) Advertising may not cause physical or moral detriment to minors; exploit their inexperience or credulity or the special trust they repose in parent, teachers and others by encouraging them to persuade their parents or others to buy advertised products or services; or unreasonably show minors in dangerous situations.
Ofcom and the ASA have discussed the basis on which the ASA could be designated as the new co-regulatory body for regulating advertising in VOD Services. It is proposed that the ASA would (if designated) handle complaints relating to VOD Services in a similar way to complaints about advertising in other media. Ofcom is of the view that the ASA satisfies the criteria required by the regulations for and is proposing to designate the ASA as the relevant co-regulator for advertising in VOD Services.
Why this matters:
At first glance all this appears to be a welcome step in the right direction to bring regulation up-to-date with changes in technology. However, there are still some grey areas that will need to be made clearer to ensure that these regulations are applying to the appropriate media in this consistently changing media world.
The key issue is 'scope'. VOD Services are defined in the directive as "an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider".
This core definition is supplemented within the AVMS Directive's Articles and Recitals with further clarifications intended to capture the idea that regulation should only attach to "television-like" services i.e. services that compete for the same audience as television broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of the AVMS Directive.
The AVMS Directive also provides a 'non-exhaustive' list of exceptions. These include services which are primarily non-economic and not in competition with television broadcasting, such as services allowing users to share user-generated content; private correspondence and e-mails; services where the audiovisual content is incidental to the main purpose of the service; gaming and gambling services; online games; search engines; and electronic versions of newspapers and magazines.
In light of this one can immediately see the applicability to services such as the BBC iPlayer and 4oD but what about the professional content aggregated by social networking sites as opposed to the user generated content they hold? Also, should regulation be restricted to advertisements which appear as a result of the user accessing a particular video on-demand programme, rather than the service itself e.g. 'banner ads on the homepage of a service'?
Nevertheless what is clear is the desire for Ofcom and the government to limit regulation to as few services as possible. Only services producing content, and not those simply passing it on, should be responsible for it (e.g. Sky or Virgin Media would not have the responsibility as platform providers). Ofcom has stated "VOD services, rather than the underlying platforms which give access to the services, should bear the regulatory burden of the new co-regulatory regime and there should be a policy of minimal scope". Ofcom believes that this is the best way to secure a regulatory framework which works for consumers and industry.
The consultation closes on 26 October 2009.