The Audiovisual Media Services Regulations 2009
Published on 16 Nov 2009 at 4:20 pm.
1 Comment.
Filed under Misc, AVMS Directive.
Blog Author: Tony Ballard
“Would you tell me please,” said Alice, “what that means?”*
After lengthy consultations and the circulation to stakeholders of drafts, the Regulations implementing the AVMS Directive have been made and laid before Parliament. Unless Parliament intervenes, they will come into force on 19 December.
In one sense, the Regulations are a tour de force of Parliamentary drafting. The draftsman has applied Occam’s razor to the cumbersome prose of the earlier drafts, cutting verbosity, discarding anything not strictly to the point and presenting the new rules in plain English. Purely from a drafting point of view, they are a model of elegance.
Drafting is normally, however, a matter of conveying meaning as well as doing it elegantly. In relation to the extension of regulation to on-demand services, it is difficult to know what the Regulations mean, if anything at all.
The challenge presented by the Directive has always been the fact that it seeks to define the scope of the extension according to a range of criteria. There is a definition of an “audiovisual media service” in Article 1 of the Directive but fully to understand what it means, and therefore where the boundaries of regulation lie, particularly for on-demand services, it is necessary to look at the Recitals. Seven of them (Recitals 16 to 23) are devoted to explanations. They explain, for example, that it is characteristic of on-demand services that they are “television-like”, that is to say that they 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. They give examples of what is not included, such as electronic versions of newspapers and magazines. All this is very helpful to understanding what it means. That it is necessary to look at both the definition and the Recitals is made clear in Recital 25 which says:
“(25) All the characteristics of an audiovisual media service set out in its definition and explained in Recitals 16 to 23 should be present at the same time.”
In the consultations that have taken place on scope, much has turned on how to transpose the intended meaning of the Directive into English law. It might have been avoided by simply referring to the Directive, but DCMS set its face against that. Lists of criteria have been proposed, changed and drafted around.
The Parliamentary draftsman has made short work of this. The Recitals are simply ignored. The definitions themselves are neatly and briefly summarised. No explanatory material from the Recitals intrudes upon the purity of the text. An on-demand service is to be in scope if its principal purpose is the provision of programmes the form and content of which are comparable to those of programmes normally included in television programme services. Full stop. There is nothing about competing for the same audiences, expectation of regulatory protection, exclusion of electronic versions of newspapers or any of the other criteria.
Those who were hoping for the Regulations to bring clarity should not be too disappointed. Faced with such a paucity of detail, the Courts are likely to spend little time construing them and can be expected to look through them to the underlying Directive if they need to work out where the boundaries lie. If that is what happens, it will not be such a bad result. But Ofcom and the new regulatory authorities need to do so as well - in its September consultation, instead of focusing on the Directive, Ofcom examined the criteria in the then draft Regulations themselves to determine which services will fall in scope of the new regulatory regime. With respect, Ofcom should not waste time attempting the same exercise on the instruments of transposition but should look at the Directive instead.
The Regulations do not yet include some items. After the shock discovery that the Video Recordings Act should have been submitted to Europe for a three month consultation and was unenforceable, the government is making sure it does not fall into the same pit a second time and is submitting to Europe the provisions for on-demand service providers to notify and pay fees to the regulatory authorities. Further implementing Regulations will follow in due course. And there is nothing now about product placement on broadcast television, which must await the outcome of a UK consultation.
Ofcom’s information-gathering powers, which were to have been greatly extended under earlier drafts, have been curtailed and brought into line with existing broadcasting legislation.
With respect to broadcast television, webcasters and mobisode providers have only a few weeks to apply to Ofcom for a licence (£2,500) and will have to pay annual fees for the privilege of being regulated (minimum £1,000 a year). The next few weeks should be a busy time for Ofcom. It could be a busy time too for TV Licensing, the people who collect the television licence fee for the BBC. Many will be looking at the way in which the Regulations reformulate the boundary between broadcast and on-demand television services and how some service providers might structure their services so as to fall on the side of the line that is more favourable to them.
*Lewis Carroll, Through the Looking Glass (1871)
Andrew Wise on 16 Jul 2010 at 5:25 pm: 1
Fully agree this has much of the “Through the Looking Glass” about it !
Time has moved on and now ATVOD is trying to stretch the definitions well into a space that “does NOT compete for the same audience as television broadcasts” - i.e. internet video services - many of which are run by very small companies who can not afford the £2,500 for the privilege of being regulated.
The creep of EU bureaucracy into areas never intended continues, aided and abetted by the self interest of a body who you might have thought represented our interests (ATVOD) but is clearly more interested in making money