Ofcom Consults on Regulation of On-Demand Programme Services

In the last bulletin, we explored Ofcom's announcement that it shall become the sole regulator of video on demand programme services from 1 January 2016 (Ofcom Highlights). Since then, Ofcom has published a statement and consultations on the "Future Regulation of On-Demand Programme Services".

The document covers interim breach procedures, sanction procedures and new rules and guidance on notification to Ofcom. A link is now provided on the Ofcom website to the updated relevant guidance, procedures and forms. The document also notes that, at present, the statutory framework will remain unchanged from the framework which governed the co-regulatory model with ATVOD. Ongoing investigations will be continued by Ofcom, and any notification to ATVOD before 1 January 2016 will continue to be investigated by Ofcom.

The Advertising Standards Authority will, however, remain Ofcom's co-regulator in relation to advertising of on-demand programme services.

The document also consults on two matters. The first consultation is in relation to replacing the interim breach procedures with new procedures for investigating breaches of on-demand programme services, in order to align more closely with the position for linear television broadcasting. The other is a proposal not to charge fees under section 368NA of the Communications Act 2003, as ATVOD has to date.

The closing date for responses was 1 March 2016, please click here to view the consultation.

Amendments to Section Three of the Broadcasting Code

On 13 January 2016, Ofcom published a consultation on amendments to Section Three of the Broadcasting Code which is designed to ensure that "material likely to encourage or incite the commission of crime or lead to disorder, [is] not included in television or radio services" (Rule 3.1).

The aim of the consultation is to make amendments which should ensure that the section is as easy as possible for broadcasters to understand. The consultation proposes the wording in Section 3.1 will be retained, with additional notes and guidance examples added to outline types of material that would be captured by this section. Ofcom also plans to provide extra information on factors which broadcasters should take into account when compiling broadcast material.

New Rules 3.2 and 3.3 will also be added with additional notes for broadcasters, to deal with content such as hate speech and abusive or derogatory treatment which cannot be included unless it is "justified by the context". Ofcom do not plan to amend the five rules contained in Section Three.

The consultation closes on 18 March 2016.

Ofcom Review of the Operation of the Television Production Sector

Following our previous announcement that Ofcom had been asked by the Secretary of State for Culture, Media and Sport to review the sector, the review has now been published. Ofcom was asked to consider four main areas including the changing market context and scenarios for future market development, the effectiveness of the current regulations, the impact of production sector regulation on Public Service Broadcasters (PSBs) and options for reform of regulation.

In terms of the first objective, Ofcom commented that the "production sector has undergone a number of changes", including consolidation of the market, with many UK producers now being owned by large global media corporations. They concluded that this has not prevented an SME production sector from continuing to flourish. In terms of future market development, Ofcom outlined the risk that broadcasters and producers might not be able to reach commercial agreement on how rights and revenues are shared as broadcasters adapt to changing viewing habits.

Ofcom also concluded that the current regulations have been largely successful in meeting the government objectives for the sector. It highlighted that there remains some loopholes in the regulation as there is nothing in the regime that "guarantees small producers will be used by broadcasters rather than large qualifying independents". It also does not guarantee "qualifying independent producers based outside London will be used".

The publication then goes on to discuss the impact of regulation on PSBs and concludes that, in general, PSBs have benefited from a "vibrant, healthy and creative sector", and that the high number of qualifying independent production companies proves that the "25% independent production quota [is not] overly onerous". In this section, Ofcom conclude that positive action does not need to be taken in this area, and that "commercial negotiations" should be left to make any required changes over time.

Finally, the review concludes by suggesting that the TV production sector should continue to be kept under review.

PACT has recently called for the Secretary of State to properly consider Ofcom's findings and "give British business investors and creative entrepreneurs the certainty they seek and the incentives to continue to innovate and invest in British creativity".