VOD liability in flux as UK regulators disagree

UK online publishers will take further hope that the VOD regulatory regime against which they have campaigned will be dismantled, after another of its decisions was overturned by its own overseer.

The Authority for Television On Demand (ATVOD) had earlier ruled that, by allowing its satellite TV subscribers to watch MTV, Nickelodeon and Comedy Central shows on-demand via its Sky Anytime internet TV service, BSkyB should be held editorially responsible for those shows.

But Ofcom on Tuesday highlighted a counter-ruling in which it said it is quashing that decision. It is instructing ATVOD to reconsider the case because, since the original ruling, Ofcom has given new guidance on how ATVOD should interpret matters.

ATVOD was established in 2010 because the UK consented to implement the European Commission’s 2007 Audio-Visual Media Services directive – legislation which compels “TV-like” services (including online) to protect minors from harmful content, to comply with sponsorship requirements and not to incite hatred. Ofcom, which adopted the directive, handed implementation to ATVOD under its oversight.

But ATVOD’s implementation has riled online publishers. Many, like newspaper website publishers, object to being classified for ATVOD’s regulation in the first place, protesting that they are not primarily video suppliers. Those companies which are regulated by ATVOD must pay it membership fees running to thousands of pounds per year to finance the group. Some smaller publishers protested the fees made sustainability impossible.

ATVOD has agreed to reduce fees by 3.58 pecent and not to classify newspaper websites as video operators, following appeals against its decisions brought by News International and others.

But, this May, Ofcom launched an inquiry to learn whether the body it appointed is “an appropriate regulatory authority” at all. That means Ofcom may loosen what some see as the conservative approach which ATVOD has taken to internet video.

Ofcom overturned ATVOD’s BSkyB decision in July. BSkyB successfully appealed to Ofcom that its content suppliers MTV, Nickelodeon and Comedy Central determine which shows get carried on Sky Anytime; it merely curates their on-screen appearance.

Those suppliers had, in fact, protested the opposite. Ofcom’s decision, at least in this case, would appear to make producers, not distributors of online video editorially responsible for it.