Under the AVMS Directive, responsibility for compliance with the provisions relating to on-demand programme services (ODPSs) falls on the entity with "editorial responsibility" over such a service - being the entity that selects and organises the content on the ODPS.
In the case of many ODPSs, both the platform owner and the content provider play a role in determining what content is included on the service. On such occasions, when the question of who has editorial responsibility is not clear, the regulator of on-demand services, ATVOD, is tasked with making a determination on the question - with the affected service providers able to appeal to Ofcom.
Viacom and Virgin Media
In January 2012, Viacom appealed to Ofcom against a Determination by ATVOD that a number of its 'channels' on the Virgin Media platform constituted ODPSs. See our March Edition here. The commercial arrangements saw Viacom provide a list of available content to Virgin Media, which then decided which pieces of content to offer to subscribers. Crucially the contract between the parties included express warranties from the Viacom entities that they were the providers on the on-demand programme service.
Upholding ATVOD's Determination, Ofcom decided that, where the contractual allocation of regulatory responsibility did not manifestly contradict the AVMS Directive's test, it would respect the contract (for the full decision, see here). In other words, in the 'grey area' where both parties play a role in selection and organisation of content, regulatory responsibility could be allocated by the parties themselves. While this was widely considered to be the position, it is useful to see a decision which supports this view.
BBC Worldwide and Mediaset
In May 2012 Ofcom accepted an appeal by BBC Worldwide against a previous ATVOD Determination (from May 2011) that it offered an ODPS on the Mediaset Platform in Italy (for the full decision see here). Although the process for selection and organisation of content was similar to the mechanics in the Viacom case, the facts were distinguishable in two key ways, and the decision turned on these separate factors:
- The contract did not clearly and expressly allocate regulatory responsibility to either party; and
- Mediaset had notified itself as an ODPS provider to the Italian regulator in relation to the service in question.
Ofcom stated that, in this scenario, Mediaset's notification as an ODPS in relation to the service in Italy meant that: a) Mediaset was accepting editorial responsibility for the service; and b) the service was located in Italy and therefore outside of its jurisdiction.
On this basis, Ofcom concluded that BBC Worldwide did not need to notify as an ODPS in the UK in relation to the Mediaset service.
To conclude, it is clear that the UK regulators will give significant weight to contractual allocation of responsibility when determining the identity of the ODPS. In the absence of clear contractual allocation of responsibility, the UK regulators will take into account whether either party has notified its provision of the service to a European regulator, thereby accepting editorial responsibility.