On-demand programme services – who is now subject to Ofcom’s ODPS Rules?

As a result, if you provide, and have editorial control over, any sort of on-demand video content online, even if it is relatively ancillary to your main business or operations, you are likely to have an obligation to notify your “ODPS” to Ofcom, if you fall under the UK’s jurisdiction.

Before you panic about the implications of this, note that the notification requirements are not onerous and a fee is only charged to services with a turnover of over £10m. You will, however, need to ensure that you comply with various requirements about the nature of the content you provide, and advertising and sponsorship rules (see further below). If you fail to notify and/or comply, Ofcom can take enforcement action and ultimately issue sanctions: Ofcom can suspend or restrict your right to provide the ODPS or impose a financial penalty of up to 5% of the provider’s applicable qualifying revenue or £250,000 (whichever is greater).

However, Ofcom has indicated that it is likely to prioritise taking any action against larger services or those services which are providing content which poses the biggest risk of potential harm to the public.

The new, broader definition of an ODPS

Prior to amendments to the Communications Act 2003 which came into effect in November 2020, the definition of ODPS meant that it was the likes of Britbox, Discovery+, Prime Video and classic broadcast TV channels (which are available on demand via various platforms) that needed to notify Ofcom and comply with the ODPS rules. However key changes to the definition of an ODPS mean that the relevant rules are now much wider in scope. In particular:

• the length or the video content is no longer relevant,
  
  
• the video content provided doesn’t have to be “TV-like”, and
  
  
• a “dissociable section” of a service (read website/platform) may be an ODPS, even if the service as a whole is providing broader information/content.

Ofcom’s recently published guidance on who needs to notify make it clear that there is no intention to interpret the legislative changes narrowly.

Can you provide some examples?

Ofcom’s guidance sets out examples of the sorts of services which will be caught, including an on-demand video service, a catch-up service for a broadcast channel, or a dissociable section of a video-sharing platform which provides selected programmes on-demand for use by members of the public and may be provided on a commercial basis. Ofcom also provides examples of services which are excluded, such as a private on-demand service which offers programmes within a business intranet and audio-only content.

However, these are clear cut examples, and there is a huge area in between which is not directly addressed by the guidance.

Although it is likely a case of unintended consequences, Ofcom acknowledges that far more services will be caught than previously. Any business that provides a dedicated section of their website which hosts video content is likely to be regulated.

So what exactly is an ODPS

The amended Communications Act 2003 says that a service (or a dissociable section of it) is ODPS if all these criteria are met:

• its principal purpose is the provision of programmes with or without sounds which consist of moving or still images, or of legible text, or of a combination of those things (so audio-only services are excluded);
  
  
• access to it is on-demand;
  
  
• there is a person who has editorial responsibility for it;
  
  
• it is made available by that person for use by members of the public;
  
  
• that person’s head office is in the UK; and
  
  
• editorial decisions about the service are taken in the UK.

What is a programme

A programme is a set of moving images, with or without sound, irrespective of its length. This would include feature-length films, sports events, situation comedies, documentaries, children's programmes, original drama, but also video clips, news clips and advertisements.

What does principal purpose mean?

The “principal purpose” is the main activity of the service or a dissociable section of it, and the extent to which the offering is built around providing programmes. This also depends on the context of the intended audience and whether the service is made available for use by members of the public (in the UK or in countries to which the Audiovisual Media Services Directive applies). The availability of a service, the number of viewers it has and the number of views that it generates, may be relevant. Similarly, it may also be relevant to consider whether a service is made available with some form of renumeration, such as sponsorship, advertising or subscription fees.

What is a dissociable section?

A provider may offer a programme download or streaming service within a broader, non-audiovisual online offering. This may be considered to be a “dissociable section” and will be an ODPS if it meets the criteria under the Act. For example. a standalone section of a newspaper website which is dedicated to hosting programmes might be considered as a dissociable ODPS if the programmes are independent of the written press articles. Ofcom will also consider other factors such as whether the relevant section is distinguished substantively from other parts of the service in terms of its purpose, content and form. Where the information is available, relevant quantitative indicators could include the use, amount and reach of video content compared with the rest of the service. It is worth noting that the same service may have elements that fall within the Video Sharing Platform (VSP) regime (see further here) and others that fall within the ODPS regime.

Falling within UK jurisdiction

The criteria for deciding if an ODPS falls within UK jurisdiction have also changed. A service is established in the UK if the provider has its head office in the UK and editorial decisions about the service are taken in the UK.

Editorial responsibility

The concept of editorial responsibility is important. Where a provider does not have general control over what programmes are included in the service, they will not be offering an ODPS but the service may need to be notified to Ofcom as a VSP instead.

Editorial responsibility contains two elements:

• general control over what programmes are included in the range offered to users, and
  
  
• general control over the manner in which programmes are organised in that range.

Ofcom advises providers, as a matter of good practice and clear allocation of roles, to address the issue of editorial responsibility in any contracts for things like distribution. General control over selection of programmes means decision-making on which individual programmes are included in the service. However, the specification of high-level parameters (for example, ethical and legal standards, or type or amount of programming to be offered) does not necessarily constitute general control over selection.

A person will have general control over the manner in which programmes are organised within a service if they control how programmes are made available to viewers.

What are the rules that apply to ODPS

In brief, ODPS providers must comply with:

• administrative rules, including notification requirements, fees, retention of programmes, provision of information, cooperation, compliance with enforcement notifications and supply of information to service users; and
  
  
• editorial rules, including provisions on harmful material, sponsorship and product placement The advertising provisions are enforced by the Advertising Standards Authority. Compliance with the rules on sponsorship is monitored by Ofcom.

Content rules

Providers of ODPS must implement measures to protect users against harmful content, including:

• ‘restricted’ material (ie material inappropriate for under 18s); and
  
  
• ‘harmful’ material which is likely to incite violence or hatred, or would amount to a criminal offence under terrorism, child sex, and racism laws.

Advertising, product placement and sponsorship rules

ODPS providers must also comply with rules on advertising, product placement and sponsorship, including:

• prohibitions on advertising of (and sponsorship by manufacturers of) cigarettes, tobacco, e-cigarettes and prescription only medicine;
  
  
• a prohibition on advertising of alcoholic drinks which is aimed at or depicting under 18s or encourages immoderate consumption of alcohol;
  
  
• requirements to ensure transparency: advertising must be readily recognisable as such and much not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously; and
  
  
• product placement is prohibited in children's programmes, news and current affairs programmes, consumer affairs programmes, religious programmes.

ODPS providers must also comply with other overriding general rules to protect the public including that advertising must not: prejudice respect for human dignity; promote discrimination; encourage behaviour prejudicial to health, safety or the protection of the environment; or cause physical, mental or moral detriment to persons under the age of 18 etc.

So what do I have to do if I have to notify?

Ofcom has previously provided detailed guidance on how to notify. You need to notify at least ten days before you launch the service by filling in a form. Service providers are also required to complete an annual return confirming that the information previously supplied to Ofcom remains accurate and complete. Any significant changes should be notified in between, eg changes to head offices or the type of programming.

What happens if I don’t notify?

Where it appears to Ofcom that a service meets the statutory criteria but has not been notified, Ofcom has statutory powers to request information to make an assessment, and to take enforcement action if a provider has failed to notify. As mentioned above, this can include a financial sanction and directing the provider to notify. However, Ofcom says that the expanded definition of “programmes” means that many smaller services could now fall to be notified. Where it appears a service meets the statutory criteria but has failed to notify, it says it is likely to prioritise taking any action against larger services or those services which are providing content which poses the biggest risk of potential harm to the public, including under eighteens.

More changes on their way

It is worth noting that the UK government is taking a wider look at the regulation of video-on-demand services, so more changes could be on the way. It launched a consultation on video of demand regulation in September 2021 which included asking whether services currently outside the UK’s jurisdiction should be regulated, and whether the rules to protect viewers should be at the same or similar levels to those for traditional tv broadcasting. See more here.