The Audiovisual Media Services Regulations 2009

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The Audiovisual Media Services Regulations 2009 transpose into UK law the requirements of the Audiovisual Media Services (AVMS) Directive. This note summarises the main features of the changes introduced by the Regulations and the Government's plans for further changes.

The changes

With effect from 19 December 2009 a number of amendments have been made to the Communications Act 2003, the Copyright, Designs and Patents Act 1988 and the Wireless Telegraphy Act 2006 to implement the AVMS Directive. The amendments were made by the AVMS Regulations 2009 under powers conferred by s.2(2) of the European Communities Act 1972.

The amendments change the regime for content regulation of:

• on-demand audiovisual services: some basic elements of television content regulation are extended to "on-demand programme services" (ODPS)
• broadcast (linear) television services: some services which were not previously licensable as "television licensable content services" (TLCS) are now licensable, particularly linear services on the internet and mobile
• non-EU audiovisual services: new obligations to enforce compliance are imposed on uplink service providers.

Ofcom has published "Scope Guidance" offering non-binding guidance as to the types of services that may fall within the definition of an ODPS and has updated its "Guidance Notes" as to what falls within the definition of a TLCS.

Further changes

The main changes were made on 19 December 2009 when the AVMS Regulations came into force. The following further changes are to be made or (in the case of product placement) may be made:

• Notification, payment and retention of copies procedures: the Government intends to introduce requirements for ODPS providers to give notifications to the appropriate regulator, to pay fees and to retain copies of their programmes but took the view that it could not do so without a three-month European consultation under the Standards Directive. The standstill for this purpose expires 15 February 2010.
• Product placement: the Government has decided to reconsider the position on product placement in broadcast television. It has launched a further consultation on whether to allow it and, if so, what safeguards should be introduced. The consultation expires on 8 January 2010.

The further changes are expected to be introduced in February or March this year by further Regulations under the European Communities Act. If product placement is to be allowed, it is expected that Ofcom will then consult on consequential changes to its Broadcasting Code but it should mean that the new arrangements - if they happen - would come into effect this summer.

In the meantime, ODPS providers must comply with the new rules and the current ban on product placement in broadcast television continues.

What is an ODPS?

A service is an ODPS if it falls within the definition in s.368A(1) of the Communications Act (as introduced by the Regulations). That definition transposes the definition of an on-demand audiovisual media service in Article 1 of the AVMS Directive, the meaning of which is in turn explained in the Recitals to that Directive. In some respects the statutory definition is not easy to construe not only because it is a transposition of the European definition but also because of the extensive "explanation" given in the Recitals.

Some guidance can be obtained from Ofcom's Scope Guidance but, with all due respect to Ofcom, that too is not easy to construe and it is in part misleading and wrong. For example it says that an ODPS will only be caught by the definition in s.368A (thus apparently begging the question) "to the extent that" it provides access to TV-like programmes. (Paragraph 2.4 of the Scope Guidance). In other words, it suggests that, in some cases, parts of a service will be treated as an ODPS, which is quite wrong.

The key elements of an ODPS and the key criteria to determine whether a service falls within the definition are:

• a service: is it a service within Articles 49 and 50 of the EC Treaty (an activity which is of an economic or commercial character or linked to such an activity)?
• the principal purpose of the service: is it to provide programmes, that is to say, sets of moving images within the service provider's catalogue whose form and content is comparable to television broadcasting?
• editorial responsibility: is there a person who is responsible for the selection and organisation of the programmes?
• on-demand: can the user select programmes for viewing at a time chosen by the user?
• publicly available: are the programmes available to the general public?
• the means of distribution: are the programmes provided by means of an electronic communications network?
• jurisdiction: is the provider of the service established or deemed to be established in the UK for the purposes of Article 2 of the AVMS Directive (which sets out a series of practical criteria to supplement the usual European concept of establishment)?

A service is an ODPS only if the answer to each of the above questions is yes. In practice there will be issues of fact and interpretation to consider. It may be difficult for some organisations to answer the questions with total confidence even if reference is made to the Recitals to the Directive and (with due caution) Ofcom's Scope Guidance for glosses on these criteria.

Where there is doubt, legal advice should be sought. We are able to offer detailed advice and guidance to help organisations understand whether their online services fall within the scope of the definition.

What exemptions from broadcast licensing have been withdrawn?

Many video services on the internet and mobile hitherto escaped regulation as a TLCS by virtue of s.233(3) of the Communications Act. That exemption has now been withdrawn on the basis that content regulation should be platform- and technology-neutral.

The repeal by the Regulations of s.233(3), and the related repeal of s.361(2) to (5), appears to have the (presumably) unintended effect of making services consisting of still images or legible text licensable as a TLCS, thereby bringing most websites into the scope of the broadcast content licensing regime. We think that website operators and others might well say that the Regulations are to that extent ultra vires under the European Communities Act since the AVMS Directive applies only to moving images but the position is less than satisfactory.

Further information

For further information on the meaning and effect of the Regulations, contact Tony Ballard on +44 (0)20 7667 5087.

7 January 2010