The position of pay TV operators over liability for content they distribute has been clarified in the UK at least by a ruling that legal responsibility lies with the broadcasters or rights holders. ATVOD (Authority for Television On Demand), the UK regulating body for on demand services, had ruled that three companies belonging to the Viacom group — Nickelodeon UK, Paramount Partnership, and MTV Networks Europe — are responsible for VOD content distributed by their respective brands Nickelodeon, Comedy Central, and MTV, on the Virgin Media cable TV platform. This specific ruling has been upheld by the overall regulator for communications and broadcasting, Ofcom, with the implication that it will apply across all platforms including the UK’s largest pay TV operator BSkyB, as well as for other content sources such as the national broadcaster BBC.
The case arose because the three broadcasters Nickelodeon, Paramount, and MTV had not wanted to be listed on ATVOD’s directory of notified services, arguing that Virgin Media should carry “editorial responsibility” for their content. Ofcom viewed that ATVOD had made “substantively the correct decision for the correct reasons.” The result is that the three Viacom companies, rather than Virgin Media, are responsible for ensuring that their VOD programs on Virgin Media comply with the statutory rules applying to on-demand program services.
The ruling makes sense in that on-demand should not be subject to different rulings from linear services, and given that broadcasters should be totally responsibile for their content irrespective of the outlet. But, there will be some confusion over the difference between on-demand services distributed via conventional pay TV platforms and via Over The Top infrastructures, given that the distinction is blurring. Virgin Media itself is now providing access to both broadcast and OTT content via a common EPG hosted on a Tivo set top box. The point here is that the rules over content responsibility for Internet Service Providers have been subtly different from those for pay TV operators, and could become more so if the controversial Stop Online Piracy Act (SOPA) is passed in its current form.
While the situation varies between countries, ISPs are generally not held liable for unknowingly distributing unlawful content, but have to cease doing so, perhaps by blocking access, as soon as they are notified about it. In the case of TV content, the authorities have to deal with the source, such as the broadcaster, and stop them distributing it via all their outlets, despite there being no onus on the pay TV operator to take any action. This distinction reflects the situation that ISPs provide access to web sites all over the world, often beyond the jurisdiction of a particular country whose laws have been breached by particular content. The ISPs delivering content in that country are often the only agencies against which action can be taken, and they can find themselves in conflicts of interest. By contrast, pay TV operators to date have tended to deliver content sourced in that country, with the exception of movies and some sports. So, it has made sense to focus on the broadcasters as the source of material that in turn may be distributed through multiple outlets.
However, this changes with on-demand services because now offending content may be stored on a variety of servers run by different operators. This is why new dedicated regulators such as ATVOD have been set up to address this area. With Over The Top distribution as well, the distinction between video and other Internet content disappears. It is true that access to content can be controlled by digital rights mechanisms, but these serve the interests of content owners and service providers for revenue protection, rather than for enforcing the laws of particular countries. In this context, the UK’s Ofcom ruling in the Virgin Media case looks less logical, in the face of ongoing attempts to unify the regulatory environments for broadcast and online content.
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