On 11 March 2009, Andy Burnham, Secretary of State for Culture, Media and Sport, published a Ministerial Statement detailing how the Government intends to implement the Audiovisual Media Services Directive ('Directive').
The statement follows a three month consultation on four main areas of the Directive: (1) the definition of the services to be regulated, (2) the regulatory arrangements for the video-on-demand ('VOD') services, (3) product/prop placement, and (4) the regulation of non-EU satellite channels.
In relation to those four areas, the statement confirms the following:
Definition of regulated services
- VOD services will only come within the scope of regulation if they are "mass media services whose principal purpose is to provide television-like programmes to users." It was noted that the industry-led body charged with content regulation will need to provide clarification on the interpretation of this definition.
- Aggregators, whose role is solely to provide access to other providers' VOD services, will not come under the scope of the regulation. Note: The position is not so clear in relation to aggregators who do more than act as a shop window for third party services. The statement does not give any indication as to whether the provision of access controls/tools will bring aggregators within the regulation. It has been left to the industry regulatory body to give further guidance on whether such services will be regulated.
Regulation of VOD services
- VOD content will be regulated by an industry-led co-regulatory body – a group of media organisations to be organised under the supervision of Ofcom. The body would build on the work of the existing self-regulatory group, the Association for Television On-Demand (ATVOD).
- VOD providers will be obliged to notify the co-regulator that they are providing a service.
- Advertising on VOD services will be regulated by the Advertising Standards Agency.
- Regulation will apply to all advertising in VOD services, both that which is included in programmes and that which accompanies them. Further guidance on the scope of advertising regulation will be provided by the ASA.
- Ofcom will be given 'backstop' powers to deal with serious or repeated breaches of standards in relation to both VOD content and advertising.
- The current ban on product placement in television programmes made by and for UK television broadcasters will remain in force.
- Product placement will continue to be permitted in UK VOD services and in films and programmes acquired from outside of the UK, subject to limitations and safeguards imposed by the Directive.
- The ban on television product placement will be reviewed by the Government in 2011/12.
- Prop placement will continue to be permitted in all television and VOD programmes, subject to any requirements of the Directive or the co-regulatory body.
Satellite television channels from outside the EU which are uplinked from the UK will be required to have a broadcasting licence issued by Ofcom.
Providers of uplink services will be required to stop uplinking a channel if they are informed by Ofcom that the channel does not have a licence or is in breach of its licence conditions. That being said, the provider is not required to check that a channel has a licence before agreeing to uplink it or to monitor broadcasts themselves.
The statement gives further indication as to how the Directive will be implemented into UK law, the deadline for which is 19 December 2009. The Government has indicated that it is passing responsibility for clarifying the ambiguities of the Directive on to the co-regulatory body and, as such, service providers may have to wait until December to discover the scope and nature of the regulation. The statement can be viewed in full here: http://www.culture.gov.uk/reference_library/minister_speeches/5932.aspx
The responses to the 2008 Consultation on the UK implementation of the Directive as published alongside the Ministerial Statement can be found at: http://www.culture.gov.uk/reference_library/publications/5911.aspx