Webcasters and mobisode providers face fees for the first time, or a fine
Published on 4 Dec 2009 at 11:11 am.
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Filed under Misc, Broadcasting, AVMS Directive, Internet, IPTV.
Blog Author: Tony Ballard
On 19 December 2009 the provision of television programme services on the internet or on mobile platforms without an Ofcom licence becomes an offence.
This is one of the lesser known consequences of the implementation of the AVMS Directive. Since 2003, when the Communications Act was enacted, webcasters and mobisode providers, and indeed anyone providing an internet service consisting of moving or still images or legible text produced to be seen on television, were exempted from content licensing thanks to subsection (3) of section 233 of the Act.
All that is now going to change on 19 December. The AVMS Regulations repeal that subsection with effect from that date and, by doing so, bring within the scope of Ofcom regulation a great swathe of internet and mobile services, all of which will need to a television licensable content service from Ofcom. The application fee is £2,500 and there are annual charges based on turnover thereafter, not to mention editorial and advertising standards to observe.
That this is not well known is attributable to a number of things, not least of which is the obscure drafting of section 233(3), which must be a contender for the title of worst drafted provision in English statutory law. In an Act which does not mention the internet once, the draftsman indulged in extraordinary contortions to produce an exemption for internet services without mentioning the word itself. The passing of this provision will not be mourned by those who favour clarity of expression in statutory language.
Against this background, the citizen might expect to be excused for having overlooked the extension of content regulation to the internet by the words in AVMS Regulations, which themselves are not exactly self-explanatory. The extension is achieved by the words: “In section 233 of the 2003 Act (services which are not television licensable content services), omit subsection (3).” The practical meaning and effect of these words do not exactly spring from the page.
The citizen might also expect to be excused if he or she had relied on Ofcom’s Guidance Notes for licence applicants, which still say (as at the time of writing, 4 December 2009) that internet services, including websites and web-casting, are excluded from the licensing requirement (paragraph 42 of the Guidance Notes).
As a matter of law the citizen will, of course, be disappointed to the extent that it is a matter of ignorance of the law. But where the law is expressed in terms as obscure as section 233(3), where its repeal is achieved by a few words buried without fanfare in an instrument aimed primarily at different services, and where the regulator’s guidance notes may be said to give rise to a reasonable expectation of exemption, those who are pursued for non-compliance after 19 December may have a serious grievance if they are pursued under the criminal provisions of the Broadcasting Act for provision of a licensable service without a licence.