July 5, 2012

The arguments

ATVOD regulates ODPSs. To be an ODPS a service must fulfil five criteria and the ‘Sun Video’ appeal turned on the first criterion, that “the principal purpose of the service is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services” (referred to as “TV-Like” services). The key issue in the appeal was the nature of the ‘principal purpose’ of the service. News Group argued that in determining the principal purpose of a service one must first decide what the service is.

It said that the ‘Sun Video’ section of The Sun website was not a service in its own right but that it was part and parcel of the whole site which was an integrated offering. It further asserted that the use of video content in the site existed only to supplement the text service. News Group presented evidence which it said showed that the use of video on the site was there to enhance the text and other characteristics of the site, not as a service in its own right. It also argued that the video segments on the site were not “TV-Like”.

ATVOD argued, following its own guidance, that a single website may contain more than one service and that the ‘Sun Video’ section of The Sun website was a service in its own right complementing an electronic version of The Sun newspaper and that it was presented as a consumer destination in its own right. The videos in that separate service were “TV-Like”, said ATVOD, because they followed the conventions of TV programmes with edited open sequences, on-screen captions, soundtracks and presenters.

Ofcom’s decision

Ofcom stated in its appeal decision that ATVOD (i) had not given sufficient reasons and evidence in its determination as to why the website was an ODPS and (ii) ATVOD had placed too much focus on the ‘Sun Video’ section of The Sun’s website without considering it in the context of the site as a whole. Ofcom set out in the decision the approach which ATVOD should have taken.
In applying the statutory scheme arising from the Communications Act 2003 and the Audio Visual Media Services Directives (the AVMS Directives) Ofcom said that it is key to consider the whole of what is provided to determine if there is any audio visual material on the website whose principal purpose is the provision of “TV-Like” programmes. This is a two-part test, comprising what Ofcom termed the ‘principal purpose part’ and the ‘comparability part’ of the test.

Principal purpose test

In dealing with the first or ‘principal purpose’ part of the test, Ofcom indicated that where audio-visual content is provided amongst other content one must look at all of the material in context. It is then necessary to determine whether, taken as a whole, the audio visual material: (i) forms part of a service whose principal purpose is the provision of that audio visual material; or, (ii) instead, is simply ancillary to the provision of some other service. ATVOD should only move on to the second part of the test, the ‘comparability part’ (whether the audio-visual content is “TV-Like”) if the answer to the first ‘principal purpose’ part of the test is in the affirmative.

Comparability test

The question under the comparability test should then be whether the audio visual material is comparable in form and content to the form and content of programmes normally included in linear television programme services. However, having decided that the principal purpose test was not satisfied in this instance Ofcom did not go on to make this analysis. 

Factors to consider

Ofcom helpfully set out a list of factors to help in deciding whether the ‘principal purpose’ part of the test is satisfied. Ofcom stated that a service is more likely to satisfy the test if it has the following characteristics:

• The service has its own access point (homepage)
• A significant amount of the audio visual content is catalogued and accessed separately
• The audio visual material is presented or marketed as a television channel
• A significant amount of the audio visual material is of substantial duration
• There are no, or few, access links between audio visual material and other material
• There are no, or few, content links between the audio visual material and other material
• Where there is a combination of audio visual and written material on a site:

– the balance is towards audio visual material
– the written material is brief or merely introduces the audio visual material
– the audio visual material is the primary means of conveying to users the information that they are seeking

• Overall, the audio visual material is not integral or ancillary to another service

In applying these tests Ofcom concluded that the ‘Sun Video’ section of The Sun website aimed to collate and supplement the content from the rest of the website. The Sun website was primarily an online version of The Sun newspaper and the audio visual content was ancillary to it. No part of it was a service whose ‘principal purpose’ was the provision of “TV-Like” programmes.

What does this decision mean?

It is tempting to infer from Ofcom’s decision that the scope of ATVOD’s regulatory power is narrower than previously thought. Yet, Ofcom states in the decision that a website providing a mixture of audio visual and written content could be deemed an ODPS. They explain that the ‘Sun Video’ section displays some features of an ODPS and fulfils a number of the characteristics (above) suggested by Ofcom which may satisfy the principal purpose test. On balance, however, the ‘Sun Video’ section of The Sun website did not do so sufficiently to make it an ODPS.

Notwithstanding this decision even in its current form The Sun website could become an ODPS if certain features were to become more or less prominent. Ofcom makes it clear that there is no blanket exclusion for newspaper websites. Websites with audio visual elements should continually make rounded assessments in order to properly decide if any of their content constitutes an ODPS and notify ATVOD if it does. It is also important to bear in mind that this is the first Ofcom decision on ATVOD’s first scope determination and the remaining appeals may well have different outcomes.

We can take from this decision that Ofcom has set out some additional guidance and demonstrated through the appeal process how they may apply that guidance in practice. This should assist website owners and others to scrutinise their own services and correctly determine whether they need to make a notification to ATVOD in future.

For further information please contact:

Shaun Lowde
t: +44 (0) 20 7927 9683
e: shaun.lowde@wiggin.co.uk

Orlando Wells
t: +44 (0) 1242 631 263
e: orlando.wells@wiggin.co.uk