Author: Tony Ballard
One of the key features of the AVMS Directive is to require the UK and other Member States to regulate TV-like programme services on the internet, including on-demand. Quite what that means and what services are in scope is not entirely clear from the Directive. Some people must have hoped that transposition into UK law of the requirements of the Directive would throw light on the uncertainties but if so they will have been disappointed. At least so far as on-demand services are concerned, the AVMS Directive has been transposed warts and all.
In due course, the uncertainties are likely to be resolved by the courts. In the meantime, however, Ofcom has begun to build up what looks like its own case law in relation to on-demand services by deciding a series of “appeals” from ATVOD, its designated on-demand co-regulator. Ofcom has decided, in relation to the video portion of a newspaper’s website, how to approach the identification of a service (The Sun). It has rejected the ingenious proposition that adult material is not comparable to the form and content of programmes normally included in TV programme services and therefore outside the scope of the new rules (Playboy TV). And most recently (18 January 2012) it has decided that the person who is to be treated as having editorial responsibility and therefore as the provider of the service may depend on the contracts that have been entered into between the supplier and distributor of the material (certain Viacom channels on Virgin Media).
But is it case law? Are these decisions the result of a judicial procedure? It seems not. Ofcom has powers to adjudicate complaints with respect to fairness and privacy, inherited from the old Broadcasting Standards Commission, but has none in relation on-demand services. The procedure by which it decides these appeals may have been modelled on the procedure for the adjudication of complaints but, in the absence of statutory authority, it is surely a regulatory and not a judicial procedure. It is a means by which Ofcom reaches its own decisions as concurrent regulator and is an opportunity for it, by explaining its reasoning, to give guidance to the industry and ATVOD.
One feature of the procedure that Ofcom has adopted in these appeals is a non-disclosure rule. The parties to an appeal may make public the fact that an appeal has been made but must not disclose any material submitted in relation to it or take any steps which could compromise a fair decision or otherwise constitute an abuse of process. In other words, in contrast to other regulatory decisions in relation to which open debate of the issues through the consultation process is encouraged, Ofcom makes its decisions in these appeals on the meaning and effect of the AVMS Directive behind closed doors and anyone involved must observe a strict silence.
And yet, at the same time, some of the decisions are to be made through the consultation process. One of the issues in the appeal by The Sun was whether the material on its website was TV-like. Instead of deciding it in the context of the appeal, which turned out not to be essential, Ofcom accepted ATVOD’s submission that it would be more appropriate for any further guidance on comparability with TV to be the product of consultation involving Ofcom, ATVOD and “relevant stakeholders”.
So there appear to be two pathways which Ofcom can follow to help it and others decide what the relevant provisions of the AVMS Directive mean. But one of them, the “appeal” procedure, appears to be designed to stifle public debate of the issues during what appears to be a lengthy appeal period (the appeal by The Sun took almost nine months).
The procedures that Ofcom follows in these appeals are not yet set in concrete. They derive from a draft in a consultation document published over a year ago and, in the absence of a final decision, have been applied in the form in which they appear in the draft. So it may be that the non-disclosure rules will be adapted in the final version to reflect the regulatory, non-judicial nature of these “appeals” so as to encourage rather than stifle debate. But in the meantime, it appears that those who wish to challenge a decision of ATVOD, instead of being able to participate in any public debate on the issues, must have to be more than circumspect about what they say while Ofcom makes up its mind.