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[F1PART 4AU.K.ON-DEMAND PROGRAMME SERVICES

Textual Amendments

[F2Chapter 2U.K.Regulation of on-demand programme services]

Textual Amendments

[F3List of providersU.K.

Textual Amendments

368BZAMaintenance of list of providersU.K.

(1)OFCOM must establish and maintain an up to date list of persons [F4who have—

(a)given a notification to OFCOM under section 368BA(1) of their intention to provide an on-demand programme service, and

(b)not given a further notification under section 368BA(2)(b) of their intention to cease to provide it].

F5(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F6(3)OFCOM must publish the up to date list on a publicly accessible part of their website.]]

Textual Amendments

[F7Notification by providersU.K.

Textual Amendments

F7Ss. 368BA, 368BB and cross-heading inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I. 2010/419), regs. 1(1), 4

368BAAdvance notification to appropriate regulatory authorityU.K.

(1)A person must not provide an on-demand programme service unless, before beginning to provide it, that person has given a notification to the appropriate regulatory authority of the person’s intention to provide that service.

(2)A person who has given a notification for the purposes of subsection (1) must, before—

(a)providing the notified service with any significant differences; or

(b)ceasing to provide it,

give a notification to the appropriate regulatory authority of the differences or (as the case may be) of an intention to cease to provide the service.

(3)A notification for the purposes of this section must—

(a)be sent to the appropriate regulatory authority in such manner as the authority may require; and

(b)contain all such information as the authority may require.

[F8(4)In this section, “significant differences” includes any change that may affect [F9whether or not paragraphs (e) and (f) of section 368A(1) are satisfied.]]

Textual Amendments

368BBEnforcement of section 368BAU.K.

(1)Where the appropriate regulatory authority determine that the provider of an on-demand programme service has contravened section 368BA, they may do one or both of the following—

(a)give the provider an enforcement notification under this section;

(b)impose a penalty on the provider in accordance with section 368J.

(2)The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of section 368BA has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3)An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes a requirement on the provider to take all such steps for remedying the contravention of section 368BA as may be specified in the notification.

(4)An enforcement notification must—

(a)include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and

(b)fix a reasonable period for taking the steps required by the notification.

(5)It is the duty of a person to whom an enforcement notification has been given to comply with it.

(6)That duty is enforceable in civil proceedings by the appropriate regulatory authority—

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or

(c)for any other appropriate remedy or relief.]

[F10(7)Subsection (6) applies whether or not the provider is in the United Kingdom.]

Textual Amendments

F11[F12...]U.K.

Textual Amendments

F12Ss. 368BC, 368BD and cross-heading inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 93(2), 118(6); S.I. 2017/765, reg. 2(y)

F13368BCAccessibility for people with disabilitiesU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14368BDEnforcement of regulations under section 368BCU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Duties of the appropriate regulatory authorityU.K.

368CDuties of the appropriate regulatory authorityU.K.

(1)It is the duty of the appropriate regulatory authority to take such steps as appear to them best calculated to secure that every provider of an on-demand programme service complies with the requirements of [F15sections 368CB and 368D].

[F16(2)The appropriate regulatory authority must encourage providers of on-demand programme services to develop accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities.

(2A)The appropriate regulatory authority must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility of on-demand programme services to people with disabilities.]

F17(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The appropriate regulatory authority must encourage providers of on-demand programme services to develop codes of conduct regarding standards concerning the appropriate promotion of food or beverages by sponsorship of, or in advertising which accompanies or is included in, children’s programmes.

[F18(5)The appropriate regulatory authority must draw up, and from time to time review and revise, guidance for providers of on-demand programme services concerning measures that may be appropriate for the purposes of section 368E(4) (ensuring specially restricted material is not available to under-18s).]

[F19(6)The appropriate regulatory authority must draw up and, from time to time, review and revise, guidance setting out their intentions concerning the exercise of their functions under this Part in relation to the prohibition imposed by section 368FA (advertising: less healthy food and drink).

(7)The appropriate regulatory authority must consult the Secretary of State before drawing up or revising guidance under subsection (6).]

Textual Amendments

F20368CACode on accessibility for people with disabilitiesU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Duties of service providersU.K.

[F21368CBQuota for European worksU.K.

(1)A person providing an on-demand programme service must secure that, in each year, on average at least 30% of the programmes included in the service are European works.

(2)A person providing an on-demand programme service must ensure the prominence of European works in the service.

(3)Subsections (1) and (2) do not apply to a person providing an on-demand programme service in relation to any period throughout which—

(a)the service has a low turnover or a low audience, or

(b)it is impracticable or unjustified for those subsections to apply because of the nature or theme of the service.

(4)An exemption under subsection (3)(b) is at the discretion of the appropriate regulatory authority.

(5)Where a person does not provide an on-demand programme service for a whole year, compliance with subsection (1) is to be assessed in relation to the period in that year during which the person does provide the service.

(6)In assessing a provider’s compliance with subsection (1), any period for which an exemption under subsection (3)(a) or (b) applies to the provider is to be discounted.

(7)In this section—

(8)This section is to be interpreted in accordance with the Communication from the European Commission (2020/C223/03) “Guidelines pursuant to Article 13(7) of the Audiovisual Media Services Directive on the calculation of the share of European works in on-demand catalogues and on the definition of low audience and low turnover” published in Volume 63 of the Official Journal of the European Union on 7 July 2020 [F23as amended from time to time].]

Textual Amendments

368DDuties of service providersU.K.

(1)The provider of an on-demand programme service must ensure that the service complies with the requirements of sections [F24368E(1) and (2) and 368F to 368H].

(2)The provider of an on-demand programme service (“P”) must supply the following information to users of the service—

(a)P’s name;

(b)P’s address;

(c)P’s electronic address;

[F25(ca)a statement that P is [F26subject to regulation by the appropriate regulatory authority as a result of section 368A(1)(e) and (f);]]

(d)the name, address and electronic address of any body which is the appropriate regulatory authority for any purpose in relation to P or [F27the on-demand programme service] that P provides.

(3)The provider of an on-demand programme service must—

[F28(zza)provide the appropriate regulatory authority with a copy of any accessibility action plan drawn up by the provider as mentioned in section 368C(2);]

[F29(za)pay to the appropriate regulatory authority such fee as that authority may require under section 368NA;

(zb)retain a copy of every programme included in the service for at least [F3060 days] after the day on which the programme ceases to be available for viewing;]

(a)comply with any requirement under section 368O (provision of information);

(b)co-operate fully with the appropriate authority for any purpose within [F31section 368O(2) or (6)].

[F32(3A)A copy of a programme retained for the purposes of subsection (3)(zb) must be of a standard and in a format which allows the programme to be viewed as it was made available for viewing.]

(4)In this section “electronic address” means an electronic address to which users may send electronic communications, and includes any number or address used for the purposes of receiving such communications.

Textual Amendments

368EHarmful materialU.K.

(1)An on-demand programme service must not contain any material likely to incite [F33violence or hatred against a group of persons or a member of a group of persons based on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 2007].

[F34(2)An on-demand programme service must not contain any prohibited material.

(3)“Prohibited material” means—

[F35(zza)material the inclusion of which in an on-demand programme service would be an offence under section 1 of the Terrorism Act 2006 (encouragement of terrorism),]

[F36(za)material the inclusion of which in an on-demand programme service [F37is conduct of a kind that, immediately before IP completion day, would have been] required by any of the following to be punishable as a criminal offence—

F38(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, or

(iii)Article 1 of Council Framework Decision (2008/913/JHA) of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law,]

(a)a video work which the video works authority has determined for the purposes of the 1984 Act not to be suitable for a classification certificate to be issued in respect of it, or

(b)material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would determine for those purposes that the video work was not suitable for a classification certificate to be issued in respect of it.

(4)[F39A person providing an on-demand programme service must take appropriate measures to ensure that any specially restricted material is made available by the service in a manner which secures that persons under the age of 18 will not normally see or hear it.

(4A)The measures are to be proportionate to the potential of the material to harm the physical, mental or moral development of such persons.]

(5)“Specially restricted material” means—

(a)a video work in respect of which the video works authority has issued a R18 classification certificate,

(b)material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue a R18 classification certificate, or

(c)other material that might F40... impair the physical, mental or moral development of persons under the age of 18.

(6)In determining whether any material falls within subsection (3)(b) or (5)(b), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.

(7)In this section—

Textual Amendments

F33Words in s. 368E(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 32(a) (with Pt. 7)

F34Ss. 368E(2)-(7) substituted for s. 368E(2) (1.12.2014) by The Audiovisual Media Services Regulations 2014 (S.I. 2014/2916), regs. 1(1), 2

F39S. 368E(4)(4A) substituted for s. 368E(4) (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 32(c) (with Pt. 7)

F40Word in s. 368E(5)(c) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 32(d) (with Pt. 7)

368FAdvertisingU.K.

(1)Advertising of the following products is prohibited in on-demand programme services—

(a)cigarettes or other tobacco products;

[F41(aa)electronic cigarettes or electronic cigarette refill containers;]

(b)any prescription-only medicine.

[F42(2)Advertising of alcoholic drinks is only permitted in on-demand programme services if—

(a)it is not aimed specifically at persons under the age of eighteen, nor does it, in particular, depict such persons consuming alcoholic drinks;

(b)it does not link the consumption of alcohol to enhanced physical performance or to driving;

(c)it does not create the impression that the consumption of alcohol contributes towards social or sexual success;

(d)it does not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;

(e)it does not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; and

(f)it does not place emphasis on high alcoholic content as being a positive quality of alcoholic drinks.]

(3)Advertising included in an on-demand programme service—

(a)must be readily recognisable as such, and

(b)must not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(4)Advertising included in an on-demand programme service must not—

(a)prejudice respect for human dignity;

(b)include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;

(c)encourage behaviour prejudicial to health or safety;

(d)encourage behaviour grossly prejudicial to the protection of the environment;

(e)cause physical [F43, mental] or moral detriment to persons under the age of eighteen;

(f)directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;

(g)directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(h)exploit the trust of such persons in parents, teachers or others; or

(i)unreasonably show such persons in dangerous situations.

Textual Amendments

F43Word in s. 368F(4)(e) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 33(b) (with Pt. 7)

[F44368FAAdvertising: less healthy food and drinkU.K.

(1)From the beginning of [F451 October 2025], on-demand programme services must not, between 5.30 am and 9.00 pm, include advertisements for an identifiable less healthy food or drink product.

(2)The prohibition imposed by subsection (1) does not apply in relation to advertisements included in on-demand programme services as a result of arrangements made by or on behalf of a person who is, at the time when the arrangements are made, a food or drink SME.

(3)The Secretary of State may by regulations provide for further exemptions from the prohibition imposed by subsection (1).

(4)For the purposes of this section—

(a)“advertisements” includes advertisements and sponsorship announcements (within the meaning given by section 368G(17)) under a sponsorship agreement;

(b)a product is “identifiable”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product;

(c)a food or drink product is “less healthy” if—

(i)it falls within a description specified in regulations made by the Secretary of State, and

(ii)it is “less healthy” in accordance with the relevant guidance;

(d)“the relevant guidance” means the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011;

(e)“food or drink SME” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations.

(5)Regulations under subsection (4)(e) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person).

(6)The Secretary of State may, before the date specified in subsection (1), amend that subsection so as to substitute a later date for the date that is for the time being specified there.

(7)The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”.

(8)Before making regulations under subsection (3) or (7), the Secretary of State must consult such persons as the Secretary of State considers appropriate.

(9)A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.]

Textual Amendments

368GSponsorshipU.K.

(1)An on-demand programme service or a programme included in an on-demand programme service must not be sponsored—

(a)for the purpose of promoting cigarettes or other tobacco products, or

(b)by an undertaking whose principal activity is the manufacture or sale of cigarettes or other tobacco products.

[F46(1A)An on-demand programme service or a programme included in an on-demand programme service must not be sponsored—

(a)for the purpose of promoting electronic cigarettes or electronic cigarette refill containers, or

(b)by an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers.]

(2)An on-demand programme service or a programme included in an on-demand programme service must not be sponsored for the purpose of promoting a prescription-only medicine.

(3)An on-demand programme service may not include a news programme or current affairs programme that is sponsored.

(4)Subsections (5) to (11) apply to an on-demand programme service that is sponsored or that includes any programme that is sponsored.

(5)The sponsoring of a service or programme must not influence the content of that service or programme in a way that affects the editorial independence of the provider of the service.

(6)Where a service or programme is sponsored for the purpose of promoting goods or services, the sponsored service or programme and sponsorship announcements relating to it must not directly encourage the purchase or rental of the goods or services, whether by making promotional reference to them or otherwise.

(7)Where a service or programme is sponsored for the purpose of promoting an alcoholic drink, the service or programme and sponsorship announcements relating to it must not—

(a)be aimed specifically at persons under the age of eighteen; or

(b)encourage the immoderate consumption of such drinks.

(8)A sponsored service must clearly inform users of the existence of a sponsorship agreement.

(9)The name of the sponsor and the logo or other symbol (if any) of the sponsor must be displayed at the beginning or end of a sponsored programme.

(10)Techniques which exploit the possibility of conveying a message subliminally or surreptitiously must not be used in a sponsorship announcement.

(11)A sponsorship announcement must not—

(a)prejudice respect for human dignity;

(b)include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;

(c)encourage behaviour prejudicial to health or safety;

(d)encourage behaviour grossly prejudicial to the protection of the environment;

(e)cause physical [F47, mental] or moral detriment to persons under the age of eighteen;

[F48(ea)directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;]

(f)directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(g)exploit the trust of such persons in parents, teachers or others; or

(h)unreasonably show such persons in dangerous situations.

(12)For the purposes of this Part a programme included in an on-demand programme service is “sponsored” if a person (“the sponsor”) other than—

(a)the provider of that service, or

(b)the producer of that programme,

has met some or all of the costs of the programme for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or of another person.

(13)But a programme is not sponsored if it falls within this section only by virtue of the inclusion of product placement (see section 368H(1)) or prop placement (see section 368H(2)).

(14)For the purposes of subsection (12) a person meets some or all of the costs of a programme included in a service only if that person makes a payment or provides other resources for the purpose of meeting or saving some or all of the costs of—

(a)producing that programme;

(b)transmitting that programme; or

(c)making that programme available as part of the service.

(15)For the purposes of this Part an on-demand programme service is “sponsored” if a person (“the sponsor”) other than the provider of the service has met some or all of the costs of providing the service for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or another person.

(16)For the purposes of subsection (15) a person is not to be taken to have met some or all of the costs of providing a service only because a programme included in the service is sponsored by that person.

(17)In this section a “sponsorship announcement” means—

(a)anything included for the purpose of complying with subsection (8) or (9), and

(b)anything included at the same time as or otherwise in conjunction with anything within paragraph (a).

Textual Amendments

368HProhibition of product placement and exceptionsU.K.

(1)“Product placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark, where the inclusion—

(a)is for a commercial purpose,

(b)is in return for the making of any payment, or the giving of other valuable consideration, to any relevant provider or any connected person, and

(c)is not prop placement.

(2)“Prop placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark where—

(a)the provision of the product, service or trade mark has no significant value; and

(b)no relevant provider, or person connected with a relevant provider, has received any payment or other valuable consideration in relation to its inclusion in, or the reference to it in, the programme, disregarding the costs saved by including the product, service or trademark, or a reference to it, in the programme.

[F49(3)Product placement is prohibited in any of the following included in on-demand programme services—

(a)children’s programmes;

(b)news and current affairs programmes;

(c)consumer affairs programmes;

(d)religious programmes.]

(4)Product placement is prohibited in on-demand programme services if—

(a)it is of cigarettes or other tobacco products,

(b)it is by or on behalf of an undertaking whose principal activity is the manufacture or sale of cigarettes or other tobacco products, F50...

[F51(ba)it is of electronic cigarettes or electronic cigarette refill containers, F52...]

[F53(bb)it is by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers, or]

(c)it is of prescription-only medicines.

(5)Product placement of alcoholic drinks must not —

(a)be aimed specifically at persons under the age of eighteen;

(b)encourage immoderate consumption of such drinks.

(6)Product placement is otherwise permitted in programmes included in on-demand programme services provided that—

(a)conditions [F54B] to F are met, and

(b)if subsection (14) applies, condition G is also met.

F55(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Condition B is that the product placement has not influenced the content of the programme in a way that affects the editorial independence of the provider of the service.

(9)Condition C is that the product placement does not directly encourage the purchase or rental of goods or services, whether by making promotional reference to those goods or services or otherwise.

(10)Condition D is that the programme does not give undue prominence to the products, services or trade marks concerned.

(11)Condition E is that the product placement does not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(12)Condition F is that the way in which the product, service or trade mark, or the reference to it, is included in the programme by way of product placement does not—

(a)prejudice respect for human dignity;

(b)promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;

(c)encourage behaviour prejudicial to health or safety;

(d)encourage behaviour grossly prejudicial to the protection of the environment;

(e)cause physical [F56, mental] or moral detriment to persons under the age of eighteen;

[F57(ea)directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;]

(f)directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(g)exploit the trust of such persons in parents, teachers or others; or

(h)unreasonably show such persons in dangerous situations.

(13)Condition G is that the on-demand programme service in question signals appropriately the fact that product placement is contained in a programme, no less frequently than—

(a)at the start and end of such a programme, and

(b)in the case of an on-demand programme service which includes advertising breaks within it, at the recommencement of the programme after each such advertising break.

(14)This subsection applies where the programme featuring the product placement has been produced or commissioned by the provider of the service or any connected person.

(15)[F58Subject to [F59subsections (15A), (15B) and (15C)],] this section applies only in relation to programmes the production of which begins after 19th December 2009.

[F60(15A)Subsection (4)(ba) applies only in relation to programmes the production of which begins after 19th May 2016.]

[F61(15B)Subsection (4)(bb) applies only in relation to programmes the production of which begins after 31 October 2020.

(15C)This section applies in relation to a programme the production of which began before 1 November 2020 as if—

(a)subsection (3)(b) to (d) were omitted, and

(b)subsection (6)(a) included a reference to a condition that the programme in which the product, service or trademark, or the reference to it, is included is—

(i)a film made for cinema,

(ii)a film or series made for a television programme service or for an on-demand programme service,

(iii)a sports programme, or

(iv)a light entertainment programme.]

(16)In this section—

Textual Amendments

F50Word in s. 368H(4)(b) omitted (20.5.2016) by virtue of The Tobacco and Related Products Regulations 2016 (S.I. 2016/507), regs. 1(2), 46(4)(a)