Insights Ofcom overturns decision by Authority for Television On Demand that service in question was an On Demand Programme Service (ODPS).

In February 2015, i.e. before its demise, ATVOD determined that the service “Panties Pulled Down” at was at the relevant time an ODPS as defined by Part 4A of the Communications Act 2003.

The Appellant, Frank Hollins, appealed the decision to Ofcom, contending that the service did not constitute an ODPS and that he was therefore not required to notify the service to ATVOD or pay a fee. The Appellant argued that s 368A(1)(a) of the 2003 Act was not satisfied as the “principal purpose” of the service was not the provision of video the form and content of which was “TV-like”, and that the service was “primarily non-economic”.

Assessing the “principal purpose” of the service, Ofcom took into account various factors, including the independence, prominence, completeness, presentation and substance of the audiovisual content available as well as all other relevant offerings of the service.

In this case Ofcom said that it was “finely balanced” as to whether or not it could be said that the “principal purpose” of the service was to offer audiovisual material. On the one hand, Ofcom considered that, in view of the fact that both the photographic and video content was regularly refreshed and the number of videos included on the website constituted a substantial offering, the provision of audiovisual material could be seen as a key purpose of the service.  In addition, the audiovisual content could not be considered to be ancillary to the other material included on the website, such as the photographic content or any text or graphics.  Further, users of the service could search specifically for the video content at the exclusion of the photographic content.

However, looking at the video content in the overall context of the service, there was no greater prominence given, in terms of cataloguing or accessing of the content, or the presentation or style of the service, to the photographic or video content, and both were distributed evenly throughout the website.  Additionally, the integration of material across the site meant that there were clear links between the video and photographic material and that they complemented each other, rather than indicating that the video offering was an independent service.  Therefore, Ofcom considered the service to be a portal for accessing both photographic and/or video content of an adult nature depending on the user’s preferences.

On balance, Ofcom considered that the video content was not offered on an independent basis nor was it significantly distinct from the photographic content, but was one integrated element of the overall offering which also included the photographic stills and accompanying text.  The service did not, therefore, have the required “principal purpose”.

As for whether the service was “primarily non-economic”, although the service had a low membership and financial turnover, Ofcom considered that this did not mean that it could not be in competition with linear TV.  In Ofcom’s view the service was capable of being accessed by a larger audience and did not consist of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest, as argued by the Appellant.  Accordingly, the service was notprimarily non-economic”.

As for whether the service was in competition with linear TV programming, Ofcom had already decided that the video content was not an independent service but an integrated element of the overall offering, which also included the photographic stills and accompanying text.  Therefore, Ofcom considered that, assessing the service as a whole, it was not likely to directly compete with adult television broadcasting services for the same audience.

Accordingly, Ofcom concluded that, at the time of ATVOD’s determination, the service did not fulfil the criteria set out in section 368A(1)(a) of the 2003 Act.  Ofcom therefore quashed ATVOD’s determination.  To read Ofcom’s decision in Ofcom Broadcast and On Demand Bulletin, Issue 304, 9 May 2016, click here.