Service: Guardian Video
Service provider: Guardian News and Media Limited
The Determination set out below was made on 28th June 2011. This Determination was withdrawn on 21 December 2011.
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA (REQUIREMENT TO NOTIFY AN ON-DEMAND PROGRAMME SERVICE) AND SECTION 368D(3)(ZA) (REQUIREMENT TO PAY A FEE) OF THE COMMUNICATIONS ACT 2003:
Re: Guardian Video (http://www.guardian.co.uk/video)
ATVOD, as the appropriate regulatory authority, has determined in accordance with section 368BB(1) and section 368I(1) of the Communications Act 2003 (“the Act”) that as the provider of the On-Demand Programme Service (“ODPS”) named above (“the Service”) is contravening or has contravened section 368BA (requirement to notify an ODPS) and section 368D(3)(za) (requirement to pay a fee) of the Act.
The Audiovisual Media Services Regulations 2010 came into force on 18 March 2010, introducing additional provisions into the Act in relation to certain video on-demand services. Section 368BA of the Act requires that every provider of an ODPS, as defined in section 368A of the Act, must not provide an ODPS before it has given a notification to the appropriate regulatory authority of its intention to provide that service. For an ODPS which was already being provided on 18 March 2010, notification should have been given before 30 April 2010. For an ODPS beginning after 18 March 2010, notification should have been given before the service began. Section 368D(3)(za) requires that a provider of an ODPS must pay to the appropriate regulatory authority such fee as that authority may require under section 368NA of the Act.
The Authority for Television On Demand (“ATVOD”) has been designated as the appropriate regulatory authority for editorial content in an ODPS and also for determining whether the provider of an ODPS has complied with its obligation to notify. ATVOD wrote to the service provider on 1st November 2010 informing you of the statutory obligation to notify provision of an ODPS, and setting out the statutory criteria which define an ODPS. We advised the service provider to refer to ATVOD’s ‘Guidance on who needs to notify’ which is available on our website (www.atvod.co.uk) and to seek legal advice if appropriate. This letter made clear that a fee was payable with regard to each ODPS and that the fee for the period to 31 March 2011 was £2,900 per service. Small scale providers who can demonstrate that they have or will have genuine difficulties in paying the full fee may be eligible for a reduced concessionary fee for the period to 31 March 2011. Fees for the year to 31 March 2012 follow a banded structure based on service provider revenue, with concessionary rates for non-commercial and small scale providers. Please see our website for details.
Having applied the statutory criteria to the Service, and having considered any response the service provider may have made to our previous letter, we wrote to the service provider on 17th February to inform them that we had come to a preliminary view that the Service is an ODPS in respect of which a notification has not been given and in respect of which a fee has not been paid, and that our preliminary view was that the service provider is in contravention of sections 368BA (Requirement to notify an ODPS) and 368D(3)(za) (Requirement to pay a fee) of the Act.
In accordance with our powers under section 368BB(1) of the Act, we invited the service provider to make representations within 21 days. In a response dated 14th March 2011 the service provider stated that:
- It is not correct to isolate Guardian Video as a distinct service in its own right.
- The programmes are an integral and ancillary element of the broader offering.
- In the vast majority of cases the videos have a specific and direct connection to content on the broader website, including thematic / topical connections.
- Further, it is disputed that ‘Guardian Video’ is a programme service as defined by s405 of the Act.
- Even if considered a service in its own right, the principal purpose of Guardian Video is a gathering together of easy access and storage of the wider website’s video material.
- The videos do not compete for the same audience as television broadcasts.
- The videos are not separate and distinct programmes in their own right – much of the audiovisual material consists of ‘clips’ that are embedded in and complement / supplement text.
ATVOD’s Final Determination
Guardian Video can be accessed via the Internet at http://www.guardian.co.uk/video. When ATVOD began its investigation into Guardian Video (in November 2010) it was possible to navigate to the ‘Guardian Video’ content via the ‘Multimedia’ tab which appeared on the Guardian home page (http://www.guardian.co.uk/). Access to Guardian Video on the Guardian home page is now via the ‘A-Z index’ tab at the bottom of the page, under ‘Video News and Features’. It is also possible to access the Guardian Video home page (http://www.guardian.co.uk/video) by clicking on the ‘more video’ link which appears alongside any video item accessed on the site. A Google search for ‘Guardian video’ brings up the Guardian Video home page as the first option.
A single website or domain may contain more than one service, and Guardian Video does appear to ATVOD to constitute a service in its own right, presented as a consumer destination in its own right (regardless of how the service is in practice used) with programmes that can be viewed, enjoyed and made sense of without reference to the broader offering. It is ATVOD’s opinion that the programmes on Guardian Video are not integral and ancillary to the main website. Although there are links on the Guardian Video home page to the multimedia pages for various topics (eg. Politics, Culture), the dominant content on this page is audio-visual material. Clicking on the title of a video on the Guardian Video home page (see the ‘Belly Dancing’ example in Annex 1) takes the viewer to a page where the video automatically begins playing (preceded by an advert). These pages too generally contain some links to areas of the main website (eg. World News) but are dominated by the video itself and a block of thumbnail stills connecting to related videos.
A significant number of the programmes, when accessed via the Guardian Video pages, appear to have no direct connection to text articles, or at least to provide no link to such a text article, or to have only a very general thematic connection to text articles. Annex 1 gives examples of this lack of integration: ‘Transition Town Totnes’ provides links to topic areas ‘Transition Towns’ and ‘Climate Change’; the links accompanying ‘Mexican archaeologists’ relate to very general subject areas including ‘World News – Mexico’ and ‘Science – Archaeology’; and ‘Belly Dancing’ likewise links to ‘Stage – Dance’ and ‘World News – Middle East’. These are general thematic associations which do not demonstrate an inherent integration between the audio-visual content as displayed here and the rest of the Guardian website. Annex 2 includes screen grabs of the programme ‘Donating a Kidney to my husband’ which is used below as an example of a ‘TV-like’ programme on the service. When accessed via the Guardian Video pages this links back to only one of at least two articles in which it is embedded. The pages on which all these examples are viewed via Guardian Video are each dominated by thumbnail links to other video content.
These examples suggest that the programmes on Guardian Video can be viewed independently of non-audio-visual content on the broader site, and that when accessed via the Guardian Video page there is no prominent invitation to the viewer to regard the programmes as dependent on text articles or more generally as content ancillary to the broader website. This analysis of Guardian Video as a separate service is further supported by the existence of the Guardian’s YouTube channel (about which we are separately in correspondence) which appears to share much of its content with Guardian Video. YouTube is evidently a site specialising in audio-visual content, and viewers would expect its content to stand alone and to provide a coherent experience without reference to a broader text based website.
ATVOD notes the service provider’s comments regarding s405 of the Act: However, this section does not define an On Demand Programme Service.
Application of s368A(1)
Taking all the relevant considerations into account, including the representations made by the service provider, ATVOD has concluded that the Service is an ODPS. This is because the Service fulfils each of the relevant criteria set out in section 368A(1) of the Act as follows:
(a) its 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;
We have again described below those programmes noted in our ‘Preliminary View’ letter of 17th February 2011, which use the broad conventions of documentary filmmaking. We also note that the service currently contains a full length opera from the Glyndebourne Festival (Die Meistersinger von Nurnberg). In three parts of 90 mins, 62 mins, and 132 mins respectively, this including credits and multiple camera angles and resembles programmes normally included in broadcast television services (which have included screenings of operas from this festival).
1) Jeremy Bamber (13 mins 9 secs)
TV-like features include: Voice-over, archive footage, incidental music, rostrum photography, onscreen captions (for example to introduce interviewees eg. ‘Chris Bews – Former Essex Police Sergeant’), ‘talking head’ interviews, fade-out ending; final ‘GuardianFilms’ logo.
2) ‘In sickness and in health: Donating a kidney to my husband’ (13 mins 43 secs)
Again, TV-like features are those which follow conventions of documentary filmmaking including: voice-over, incidental music, archive photographs, interviews, and footage following couple in hospital.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the service. Taking into account the range of content across the service, a significant number of programmes appear to be ‘TV-like’ and are presented without prominent association with text articles or other media. For example (and see Annex 2) although the Jeremy Bamber programme described above is placed alongside multiple text links to the left hand side (eg. to the ‘UK News’ page, to the ‘Video Witness’ series page), of significantly greater prominence are the selection of related videos presented in thumbnail stills to the right.
In a letter of 14th March the service provider describes the principal purpose of Guardian Videos as an archiving of video material, gathered together in one place on the site for ease of search and access. However, it is ATVOD’s opinion that in aggregating the content in this fashion you have created an On Demand Programme Service within the meaning of the Act.
(b) access to it is on-demand;
Guardian Video can be watched at a time of the viewer’s choosing.
(c) there is a person who has editorial responsibility for it;
The programmes on Guardian Video have been selected and organised into a coherent catalogue of viewing options with a distinct editorial proposition.
(d) it is made available by that person for use by members of the public; and
Guardian Video is made available on the open internet. Anyone with access to the internet can view the programmes on Guardian Video.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Guardian Video is provided by Guardian News and Media Limited which has its registered office at PO Box 68164, King's Place, 90 York Way, London N1P 2AP
In coming to this determination, ATVOD has taken note of Recital 28 of the AVMS Directive 2010, which is not binding, and has concluded that Guardian Video is a service in its own right which is distinct from the online version of the newspaper and which has as its principal purpose the provision of programmes which are comparable to the form and content of programmes normally included in television programme services.
Having concluded that the Service is an ODPS, ATVOD has determined that a contravention of section 368BA (Requirement to notify an ODPS) and section 368D(3)(za) (Requirement to pay a fee) has occurred because on the basis of the information available (a) the Service is an ODPS; (b) as the provider of the Service, has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of an intention to provide that service or, if the Service was already being provided on 18 March 2010, did not give a notification before 30 April 2010; and (c) the service provider has not paid the regulatory fee for the financial period ending 31 March 2011, as required by ATVOD under section 368NA of the Act.
If the service provider notifies this service within 14 days, and pay the subsequent invoice within 14 days of its issue, no further enforcement action will be taken.
Alternatively, the service provider may request an appeal by Ofcom of ATVOD’s decision that the Service is an ODPS or that it is the provider of the ODPS. Ofcom requires appeals to be made in writing within 10 working days of the date of the relevant decision. In urgent cases a shorter period may apply. If the service provider wishes to request an appeal of this determination to Ofcom, it should consult Ofcom’s current procedures as soon as possible. These may be found at: http://stakeholders.ofcom.org.uk/consultations/on-demand-programme-services/ Requests for appeal should be sent to: Tony Close at Ofcom, Riverside House, 2a Southwark Bridge Road, London, SE1 9HA or via email to firstname.lastname@example.org
If no notification is made and/or no fee paid within the specified times, and no appeal to Ofcom is made, or any appeal made to Ofcom is unsuccessful or Ofcom determines that the request has been made out of time, ATVOD may proceed to issue an Enforcement Notification under section 368BB(1)(a) or section 368I(1) of the Act following consultation with Ofcom. ATVOD may also refer the matter to Ofcom for consideration of the imposition of a financial penalty under section 368BB(1)(b) of the Act or of suspension or restriction of the service under section 368K of the Act.