Ofcom has overturned a decision by the Authority for Video on Demand (ATVOD) that the Everton TV section of Everton Football Club's website was an "on-demand programme service" (ODPS). Everton TV therefore fell outside the statutory regime under the Communications Act 2003 (which implements provisions of the Audiovisual Media Services Directive), which regulates certain video-on-demand services. The decision provides useful guidance on when websites containing audiovisual material are likely to be subject to the regulatory regime under the Act.
Under the Act, a person providing an ODPS must notify ATVOD of its intention to provide the service, pay a fee and comply with content rules similar to those which apply to broadcast television. The Act defines an ODPS as, among other things, a service whose "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." ATVOD issued Everton FC with a notice of determination that Everton TV was an ODPS. Everton FC appealed to Ofcom. Ofcom overturned ATVOD's decision, concluding that Everton TV was not an ODPS.
Ofcom's decision was based on the fact that, that while some characteristics of the site did suggest Everton TV was an ODPS, other characteristics supported the opposite conclusion. In particular, the branding, presentation and styling of Everton TV did not distinguish it from the rest of the website, and audiovisual material was shared between Everton TV and other sections of the website. Everton TV was therefore not a separate service but a part of the service supplied by the site as a whole, and the principal purpose of that service was to provide a magazine or fanzine about Everton FC. Ofcom also concluded that the audiovisual material was not comparable to television because the clips were generally too short; would have been incomplete as television programmes; and because of the variety and volume of non-audiovisual content across the website as a whole and the degree of integration between the different types of material. However, Ofcom did acknowledge that Everton FC had come close to providing an ODPS.
Ofcom's decision provides helpful guidance for owners of websites containing video-on-demand content. It suggests that a particular service is unlikely to be subject to the Communications Act if it can be regarded as part of another service whose principal purpose is something other than the provision of television programme services. The nature of audiovisual content and its degree of integration into the website as a whole also appear to be relevant factors.
Ofcom's full decision is available here.