On 28 October 2015, communications regulator Ofcom overturned a decision by the Authority for Television on Demand (ATVOD), the regulatory authority for on-demand video content, in respect of an appeal by Melanie Lumb (the Appellant) who posted video content on the Mistress R’eal service available on the website clips4sale.com.

Ofcom ruled that the online adult service, which included short videos of the Appellant and her clients which were available for sale, did not constitute an "on-demand programme service" (ODPS) for the purposes of the Communications Act 2003 (the Act).

Any service classed as an OPDS is subject to regulation by ATVOD and is required to pay a fee.

ODPSs are regulated under Part 4A of the Act which codifies the EU Audiovisual Media Services Directive (2010/13/EU) (the EU Directive).

Recitals 21-24 of the EU Directive make clear that its purpose is to provide a measure of fair competition across EU Member States between those providing standard television broadcasting services and those on-demand services which are “essentially the same, or sufficiently similar and which compete for viewers and advertisers”.

It states that only mass media services, rather than private websites producing content to be shared within a certain web audience or community should be regulated.

Taking a purposive interpretation of the EU directive, section 368A(1)(a), of the Act states that an online service will be classed as an ODPS if "its principal purpose 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."

In considering Miss Lumb’s appeal of ATVODs decision on the Mistress R’eal Service Ofcom therefore broke the definition of an OPDS down into two parts:

  • whether, as a whole, the principal purpose of Miss Lumb’s service could be seen as the provision of audio-visual material, and
  • if the first test was met, could the form and content of those programmes be considered comparable to the form and content of television programmes, looking in greater detail at the audio-visual content being offered on the site.

Ofcom concluded that the principal purpose test at limb one was clearly met, citing:

  • the “significant volume of regularly refreshed video content”
  • its substantial quality
  • the fact that only audiovisual content (other than short sections of accompanying descriptive text) was available on the site, and
  • the “easy access” to online viewers of Miss Lumb’s videos.

However, it was in its analysis of the comparability test at the second point that Ofcom ruled that the service being offered by the Appellant fell short of the statutory criteria.

In its considerations as to whether the content was “tv like”, Ofcom set out in its decision that the videos could not be considered analogous to traditional television for reasons including:

  • their short duration (although it did note this could be a feature of adult videos)
  • the inability to link storylines or plots between 'episodes'
  • a lack of ‘autoplay’ feature on the site to link the features, and
  • little narrative structure and no title sequences or credits.

Clips, which had a low production quality were “more typical of user generated content” than providing a TV like experience for the online viewer.

Further, the option to pay for clips did not prevent the content from being classed as “primarily non-economic”, as revenue totaled less than $USD 125 per month.

In short, Ofcom concluded that a user wanting to watch the type of adult content available on a linear service, such as a pay-per-view or late night service, would not have seen Mistress R’eal on clips-4-sale as a competing option, and therefore it would not fall foul of the purpose of the Directive, ie to promote competition between like for like services whether traditional or online.

However, as an increasing amount of content is posted online, it is likely that this is a question that will have to be considered increasingly often and is something of which ODPS providers should be aware.

As a final point, it is worth noting that Ofcom announced on 14 October 2015 that, as from 1 January 2016, it will take sole responsibility for regulating video-on-demand programme services.