Telecommunications regulator Ofcom has just published its determination on a recent appeal as to whether certain audio-visual materials are “on-demand programme services” under Part 4A of the Communications Act 2003, considering whether or not they are comparable to the form and content of linear television programme services. This decision is particularly interesting, as the approach taken by Ofcom in some respects appears inconsistent with the logic applied in the CJEUs recent decision in RE New Media Online (Case C-347/14).
The materials in this case (the “Mistress R’eal” decision) were in the context of a dominatrix website providing adult content. Ofcom decided that these were not comparable to the form and content of linear television, and were therefore not subject to regulation under Part 4A of the Communications Act 2003.
In the Mistress R’eal decision, features such as: (i) the short duration of the videos; (ii) the lack of opening and closing credits; (iii) the lack of narrative structure; and (iv) the low production values of the videos, combined to prevent the video service from being ‘television-like’. The low subscriber numbers were not a factor in the determination of the service not being ‘television-like’, because the videos were capable of being accessed by a larger audience. The service was economic in nature as the videos were paid-for content.
Part 4A of the Communications Act 2003 regulates a subset of video-on-demand content defined as “on-demand programme services”. Among other things, a service is an on-demand programme service if “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 Audiovisual Media Services Directive, upon which Part 4A is derived, states that such regulation should only apply to ‘television-like’ services and not those that are non-mass media, primarily non-economic, or do not compete with television broadcasting, such as private websites.
In April 2015, ATVOD determined that the dominatrix video service was an on-demand programme service. Mistress R’eal appealed this decision to Ofcom which overturned the ATVOD determination, based upon a distinction of the service from linear television programme services, by following its own test established in the Sun Video decision relating to newspaper video content. Broadly, the test provides that Ofcom should
- identify the principal purpose of what is provided;
- identify whether the principal purpose is to provide audio-visual material; and
- ask whether the service is ‘television-like’.
Ofcom concluded that the principle purpose was to provide audio-visual material. This is unsurprising, as the website contained predominantly images and text describing the material, and was dedicated to the ordering, formatting, refund and purchase of videos and still images, with such content being significant in volume, and regularly refreshed and updated.
Ofcom distinguished the service on the third element of its test however, considering:
- the brevity of the content, even in the adult content genre;
- the absence of opening and closing credits, making it less comparable with television (although this was not determinative on its own as this occurs in some linear television adult productions);
- the lack of narrative structure, as the content featured disjointed sections of adult content, with some videos including the provider of the services speaking directly to camera in a way more typical of user-generated content; and
- the low production values of the content.
These elements combined resulted in a conclusion that the services were insufficiently comparable in form to be ‘television-like’. The service was found not to be competing with adult content on television.
John and I recently commented on the CJEU ruling on the meaning of audio-visual media service which held that the short length of videos will not rule them out of being ‘television-like’, however Ofcom has assessed this case using its Sun Video test, which uses a test and assesses characteristics in a way that might not always fit seamlessly with the CJEU’s judgment in RE New Media Online (Case C-347/14).
Ofcom did not refer in its decision to any consideration of the CJEU’s ruling (and have not recast its test in light of the ruling). To the contrary, the videos being short in length was used to lend credence to the services not being ‘television-like’. It should be noted however that this was not the only (or in fact the principal) consideration that the regulator took into account, and in fact Ofcom appears to have given most weight to the lack of narrative structure and the low production values, arriving at what appears to be a sensible result.
Given the differences in approach taken by regulators across the EU it seems highly likely that more cases like this will fall to be considered, especially in light of the fast paced and changing landscape of on-demand programme services.
Regular readers might also recall that Ofcom will soon take control of all video on-demand regulation in the UK.
The full text of the Ofcom determination in Mistress R’eal can be found here.