The Association for Television on Demand (ATVOD) – Land Grabber or Just Plain Needy
Times change. As any lawyer will tell you, if it is not absolutely nailed down, what someone said would never happen, often does.
Siobhain Butterworth recently attacked ATVOD (the VOD content regulator in the UK) as an aggressive regulatory land grabber in the Guardian, as it seeks to regulate the websites run by certain newspaper groups. Siobhain indicates that money must be tight but the problem of funding ATVOD’s regulatory activities is not a good enough reason to regulate the press by the back door and oust the jurisdiction of the existing regulator, the Press Complaints Commission.
She is right. The newspapers were pretty much given cast iron assurances that their current online activities would escape regulatory scrutiny by both the European regulators when the Audiovisual Media Services Directive was adopted in 2007 and subsequently by the previous Labour government when the Directive was implemented into UK law.
Times change. As any lawyer will tell you, if it is not absolutely nailed down, what someone said would never happen, often does. The statutory definition of a VOD service is that its principal purpose is the provision of television-like programmes. In its guidance, ATVOD gives examples of what services may fall within its remit. If a VOD service is part of the wider non audiovisual service, then the VOD element falls to be regulated because it is a distinct service. On the other hand, if the on demand programming is only ancillary to text based news, then it is likely to be exempt. Therefore, the regulatory dividing line is drawn – is the on demand programming ancillary to or distinct from other content on the website? A quick review of most newspaper websites suggests the former. But ATVOD goes on to state that it is only the electronic versions of newspapers that are definitely excluded. Anything else appears up for debate. The upshot of all this is that the definitional ambiguities inherent in the AVMS Directive, which have been translated into UK law, allow ATVOD to pursue operators who felt their services were outside its remit.
Siobhain portrays it as a land grab by ATVOD to regulate the internet. There, I disagree slightly. The other motive she ascribes to ATVOD is more accurate – it is a desperate attempt to get cash. Any service on any platform is fair game. ATVOD currently has an operating budget of over £520,000 per annum and there is its dilemma. Its cost structure is just too much for its regulated services to support. The newspapers are not the only ones up in arms. A number of the existing VOD operators have written recently to the government expressing serious reservations about the cost and nature of the ATVOD co-regulatory structure. The industry has highlighted a number of concerns many of which Siobhain touched upon in her article (for example, what services are within the regulatory ambit of ATVOD) but the most pressing is cost.
VOD is still a nascent business but ATVOD is proposing to charge either an increased flat fee of £3,968 per service or a range of graduated tariffs, one of which starts at £14,580 per service (capped at £25,000 for multiple notifications). The whole industry is squealing. The main complaint is that the fees are widely disproportionate to the obligations ATVOD is supposed to carry out. It only has responsibility for limited content regulation. Since it came into being, ATVOD has had 17 complaints and no breaches. Regulation of VOD advertising has been hived off to the ASA to administer. There is also disquiet that the fees are totally out of proportion to those being charged elsewhere in Europe for the regulation of VOD services.
The implication for the Government is clear. VOD operators will either get out of town or, if they stay, refrain from launching more services. The brave new on demand world may be stillborn or at least have stunted growth in the UK. This may suit some larger VOD operators as they colonise the on demand world, but it will not encourage new entrants or new services.
Co-regulation which seemed such a good idea just over 12 months ago, now looks completely different with the benefit of hindsight. It may be light touch but it comes with a heavy price tag.
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ATVOD serves as another example of the UK's over-engineering its implementation of the Audiovisual Media Services Directive. The result is every increasing industry dissatisfaction.
"Is the on demand programming ancillary to or distinct from other content on the website?"