The Audiovisual Media Services Regulations 2009
| Year | 2009 |
2009 No. 2979
Electronic Communications
Broadcasting
The Audiovisual Media Services Regulations 2009
Made 9th November 2009
Laid before Parliament 10th November 2009
Coming into force 19th December 2009
These Regulations are made by the Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 19721in relation to information society services2and measures relating to television broadcasting3, in exercise of the powers conferred by section 2(2) of that Act.
Citation, commencement and interpretation
1.—(1) These Regulations may be cited as the Audiovisual Media Services Regulations 2009 and come into force on 19th December 2009.
(2) In these Regulations “the 2003 Act” means the Communications Act 20034.
On-demand programme services
2. In the 2003 Act, after section 368 insert—
“PART 4A
ON-DEMAND PROGRAMME SERVICES
Preliminary
(368A) Meaning of “on-demand programme service”
(1)
(1) For the purposes of this Act, a service is an “on-demand programme service” if—
(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;
(b) access to it is on-demand;
(c) there is a person who has editorial responsibility for it;
(d) it is made available by that person for use by members of the public; and
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
(2)
(2) Access to a service is on-demand if—
(a) the service enables the user to view, at a time chosen by the user, programmes selected by the user from among the programmes included in the service; and
(b) the programmes viewed by the user are received by the user by means of an electronic communications network (whether before or after the user has selected which programmes to view).
(3)
(3) For the purposes of subsection (2)(a), the fact that a programme may be viewed only within a period specified by the provider of the service does not prevent the time at which it is viewed being one chosen by the user.
(4)
(4) A person has editorial responsibility for a service if that person has general control—
(a) over what programmes are included in the range of programmes offered to users; and
(b) over the manner in which the programmes are organised in that range;
and the person need not have control of the content of individual programmes or of the broadcasting or distribution of the service (and see section 368R(6)).
(5)
(5) If an on-demand programme service (“the main service”) offers users access to a relevant ancillary service, the relevant ancillary service is to be treated for the purposes of this Part as a part of the main service.
(6)
(6) In subsection (5), “relevant ancillary service” means a service or facility that consists of or gives access to assistance for disabled people in relation to some or all of the programmes included in the main service.
(7)
(7) In this section “assistance for disabled people” has the same meaning as in Part 3.
(368B) The appropriate regulatory authority
(1)
(1) OFCOM may designate any body corporate to be, to the extent provided by the designation, the appropriate regulatory authority for the purposes of any provision of this Part, subject to subsection (9).
(2)
(2) To the extent that no body is designated for a purpose, OFCOM is the appropriate regulatory authority for that purpose.
(3)
(3) Where a body is designated for a purpose, OFCOM may act as the appropriate regulatory authority for that purpose concurrently with or in place of that body.
(4)
(4) OFCOM may provide a designated body with assistance in connection with any of the functions of the body under this Part.
(5)
(5) A designation may in particular—
(a) provide for a body to be the appropriate regulatory authority in relation to on-demand programme services of a specified description;
(b) provide that a function of the appropriate regulatory authority is exercisable by the designated body—
(i) to such extent as may be specified;
(ii) either generally or in such circumstances as may be specified; and
(iii) either unconditionally or subject to such conditions as may be specified.
(6)
(6) The conditions that may be specified pursuant to subsection (5)(b)(iii) include a condition to the effect that a function may, generally or in specified circumstances, be exercised by the body only with the agreement of OFCOM.
(7)
(7) A designation has effect for such period as may be specified and may be revoked by OFCOM at any time.
(8)
(8) OFCOM must publish any designation in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.
(9)
(9) OFCOM may not designate a body unless, as respects that designation, they are satisfied that the body—
(a) is a fit and proper body to be designated;
(b) has consented to being designated;
(c) has access to financial resources that are adequate to ensure the effective performance of its functions as the appropriate regulatory authority;
(d) is sufficiently independent of providers of on-demand programme services; and
(e) will, in performing any function to which the designation relates, have regard in all cases—
(i) to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and
(ii) to such of the matters mentioned in section 3(4) as appear to the body to be relevant in the circumstances.
(10)
(10) Subject to any enactment or rule of law restricting the disclosure or use of information by OFCOM or by a designated body—
(a) a designated body may supply information to another designated body for use by that other body in connection with any of its functions as the appropriate regulatory authority;
(b) a designated body may supply information to OFCOM for use by OFCOM in connection with any of their functions under this Part;
(c) OFCOM may supply information to a designated body for use by that body in connection with any of its functions as the appropriate regulatory authority.
(11)
(11) In carrying out their functions as the appropriate regulatory authority, a designated body may carry out, commission or support (financially or otherwise) research.
(12)
(12) In this section—
“designation” means a designation under this section and cognate expressions are to be construed accordingly;
“specified” means specified in a designation.
Duties of the appropriate regulatory authority
(368C) Duties of the appropriate regulatory authority
(1)
(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 section 368D.
(2)
(2) The appropriate regulatory authority must encourage providers of on-demand programme services to ensure that their services are progressively made more accessible to people with disabilities affecting their sight or hearing or both.
(3)
(3) The appropriate regulatory authority must ensure that providers of on-demand programme services promote, where practicable and by appropriate means, production of and access to European works (within the meaning given in Article 1(n) of the Audiovisual Media Services Directive).
(4)
(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.
Duties of service providers
(368D) Duties of service providers
(1)
(1) The provider of an on-demand programme service must ensure that the service complies with the requirements of sections 368E to 368H.
(2)
(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;
(d) the name, address and electronic address of any body which is the appropriate regulatory authority for any purpose in relation to P or the service that P provides.
(3)
(3) The provider of an on-demand programme service must—
(a) comply with any requirement under section 368O (provision of information);
(b) co-operate fully with the appropriate authority for any purpose within section 368O(2) or (3).
(4)
(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.
(368E) Harmful material
(1)
(1) An on-demand programme service must not contain any material likely to incite hatred based on race, sex, religion or nationality.
(2)
(2) If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it.
(368F) Advertising
(1)
(1) Advertising of the following products is prohibited in on-demand programme services—
(a) cigarettes or other tobacco products;
(b) any prescription-only medicine.
(2)
(2) Advertising of alcoholic drinks is prohibited in on-demand programme services unless—
(a) it is not aimed at persons under the age of eighteen, and
(b) it does not encourage excessive consumption of such drinks.
(3)
(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)
(4) Advertising included in...
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