Consultation outcome

Audience protection standards on Video-on-Demand Services

Updated 28 April 2022

Foreword from the Secretary of State for Digital, Culture, Media and Sport

I am immensely proud of the UK’s diverse broadcasting ecology. Viewers have never had such a breadth of choice, with our world-class public service and commercial broadcasters sitting alongside a wide range of online streaming services, such as Netflix to Disney+ to Amazon Prime. In this golden age for television, UK productions are renowned and respected around the world, with programmes such as I May Destroy You and It’s A Sin attracting global plaudits and audiences. But as viewing habits continue to change, we want to ensure our broadcasters continue to thrive in the new media landscape, so that they remain the driving force of our creative industries, fuel wider economic growth, and build on our international competitiveness.

In order to do that, we need to ensure our broadcasting regulation is fit for the 21st Century. First and foremost, we need a level playing field between traditional broadcasters and online streaming services.

Right now, viewers in the UK know that if they switch on their TV, there will be a high standard of rules in place to protect audiences, including the 9pm watershed and certain content standards. The same is not currently true of video-on-demand (VoD) services - BBC iPlayer excepted. Most VoD services either aren’t regulated to the same extent as traditional UK linear television channels, or they aren’t regulated in the UK at all. Some providers are subject to regulations in their country of origin. But those regulations might not reflect UK views on the appropriateness of certain content, and as an independent nation, we shouldn’t rely on a third party to determine our rules and values.

Similarly, many VoD providers have made a good start in introducing their own standards and procedures for audience protection, such as Netflix’s voluntary age ratings partnership with the British Board of Film Classification (BBFC) and Disney’s commitment to family protections on Disney+. But this is done on a voluntary and ad-hoc basis. Audience protection measures such as pin-codes and warnings vary across platforms. Age ratings are inconsistent and sometimes non-existent. Though there are some rules that VoD providers must follow in protecting children from harmful content, there are little or no rules to protect audiences from misleading health advice or pseudoscience documentaries on climate change.

Now that we have left the EU we have the opportunity to set out our own regulations in the best interests of UK viewers. It’s time to establish some consistency in the rules for broadcasters and streaming services, old and new. This is about ensuring UK audiences receive a similar level of protection no matter how they watch their favourite television - whether it be live or on-demand.

Not all VoD providers deliver a TV-like experience, so any regulatory change will need to be proportionate to ensure freedom of speech is not stifled. This country has a long and proud tradition of striking the balance between protecting people - particularly the young and vulnerable - while protecting fundamental rights. This review will be carried out in the same spirit.

It will be one of many measures we are considering as part of a wide-ranging White Paper into the future of broadcasting, which I plan to bring forward in the Autumn. Our broadcasters and VoD services - both publicly and commercially funded - play a huge social, cultural and economic role in British life. We must ensure that our broadcasting framework is competitive and future-proof, so that they continue to flourish in the decades to come.

The Rt Hon Oliver Dowden CBE MP

Secretary of State for Digital, Culture, Media and Sport

1. Executive summary

The rapidly changing viewing habits of UK audiences and the accelerated growth in video-on-demand (VoD) services such as BBC iPlayer, ITV Hub and Disney+, particularly during this pandemic, have highlighted the disparity that exists between the traditional audience protection available on linear television - such as freeview, satellite or cable - compared to newer VoD services. The popularity of VoD services in the UK has increased significantly, with viewers now having access to thousands of hours of programme content at the touch of a button.

Services such as Netflix and Amazon Prime Video provide huge value to UK audiences, and in many cases significant, and growing, contributions to the UK economy. However, these services are regulated far less robustly than traditional broadcast television stations, particularly in relation to the regulation of content standards and audience protection. Some services, including Netflix and Apple TV+, are not regulated in the UK at all. Alongside potentially putting audiences at risk, this also creates a potential competitive disadvantage between UK broadcasters and their internationally-funded online counterparts.

Broadcaster VoD services such as the iPlayer, ITV Hub, All 4 and My5 are the driving force behind the offer of free to access VoD services in the UK. By 2019, 78% of all households in the UK watched VoD monthly in one form or another. The number of households that subscribed to a VoD service rose almost 350% between 2014 and 2020. Now in 2021, over 75% of UK households say they have used at least one subscription VoD service.

However, VoD services in the UK are not regulated to the same extent as UK linear television channels - in particular, except for BBC iPlayer, they are not subject to Ofcom’s Broadcasting Code, which includes enhanced protections to audiences from harmful and offensive material. VoD services apply a range of audience protection tools, including password-protected accounts, pin codes, content warnings and age verification. However these tools are not standardised across services and can lack familiar, trustworthy signposting and guidance, which can cause some concern and confusion, as well as potential for harm to users.

The government is minded to align better the rules between VoD services that provide a TV-like experience and ‘traditional’ linear TV, ensuring UK audiences receive a similar level of protection no matter how they want to watch television. Not all VoD providers deliver a TV-like experience like mainstream services such as Netflix where viewers watch programming interchangeably with traditional linear services, therefore any regulatory change will need to be proportionate, to ensure freedom of expression is not undermined. Similarly, for small or niche services, it could be disproportionate for their business model to be required to comply with the very high standards of the entire Broadcasting Code. Now the UK has left the European Union, this is an opportunity to improve upon EU aligned provisions under the Audiovisual Media Services Directive with regulations that are designed in the best interests of UK audiences.^{[footnote 1]}

This 8 week consultation examines the current level of audience protection from harmful content provided through regulation and voluntarily by individual VoD services, and what steps are required to ensure appropriate protection levels for UK audiences going forward. This consultation also considers whether non-UK based VoD services should be brought under UK jurisdiction to provide accountability to UK audiences who use their services, and how best to regulate them.

In summary, the government is consulting on whether:

• UK audiences viewing TV-like VoD programme content should receive the same or similar level of protections as if they were watching traditional television; and

• VoD services not currently regulated by Ofcom and which target UK audiences should be brought within UK jurisdiction.

Responses from all individuals or organisations on the specific consultation questions and content of the consultation document are welcome. The consultation will close on 26 October 2021 at 23:45 BST.

This consultation does not seek responses on wider broadcasting regulation, nor changes to how television or public service broadcasters such as the BBC or Channel 4 are funded or regulated. This consultation will also not cover changes to advertising rules/restrictions and does not cover topics such as introducing levies/quotas on VoD services. Responses on these issues will not be considered as part of this consultation.

A summary of in-scope responses submitted to this consultation and the government’s response will be published in due course, following the closure of the consultation.

2. Changing landscape

2.1 Changing audience viewing habits

The emergence of global content providers is driving fundamental shifts in viewing habits and industry structures. Broadcasting and wider on-demand industries are undergoing a period of rapid change which has massively increased the choice available to UK viewers.

Whilst VoD services first appeared in the 1990s, the introduction of Channel 4’s 4oD (now All 4) in 2006 and BBC’s iPlayer in 2007, alongside technology improvements and the wider availability of faster internet connections, heralded a new way to consume television content and ‘catch-up’ on missed scheduled programming. Content libraries such as Lovefilm offered a popular rent streaming service as early as 2005 and the launch of subscription services including Netflix in 2012 and Amazon Prime Video in 2014 dramatically increased choice and made it simpler for audiences to purchase content on-demand. The introduction of Apple TV+ in 2019 and Disney+ in 2020 provide UK audiences with another new wave of content.

There are different terms used to describe different types of VoD services often based on their revenue model. For example Netflix, Now, and Amazon Prime Video are known as ‘SVoDs’ (subscription video-on-demand); and ITV Hub, All 4 and My5 are called ‘AVoDs’ (advertising video-on-demand). Broadcaster catch-up services such as BBC iPlayer are often called ‘BVoDs’ (broadcaster video-on-demand); and many services offer ‘TVoD’ (transaction video-on-demand) where audiences can purchase content on a pay-per-view basis. Ofcom also refer to VoD services using the legal term ODPS (On-Demand Programme Services). For simplicity, throughout this consultation document, the term VoD will be used as a descriptive to capture all services within potential scope.

When referring to linear or broadcast television this means live channels that you watch through your TV, like BBC1, Sky One or Channel 4. These can be received, for example, via your aerial, satellite or cable, and through a number of platforms like Freeview, Freesat, Sky, BT or Virgin Media.

Analysis indicates that the majority of all households in the UK watch VoD monthly in one form or another. Over the past five to ten years, audiences have increasingly seen VoD as a preferred way to watch TV and film: nearly half of UK adults consider online video services to be their main way of watching TV and film, and 38% of subscription VoD users can imagine not watching broadcast TV at all in five years’ time. The coronavirus (COVID-19) lockdowns accelerated this trend, with an estimated 12 million online adults gaining access to a new VoD subscription during lockdown.

Both younger and older audiences are increasing their time spent on VoD services. This is particularly apparent with the rate at which young audiences are viewing content. Eight in ten children aged 5-15 (80%) watch some form of VoD content - nearly doubling from 44% in 2015. A quarter of this age group do not watch live broadcast TV at all. In addition to this, the viewing of subscription VoD by young people and adults aged 16-34 has increased particularly steeply over the last few years, with average daily viewing minutes rising by 21 minutes in 2020 to 91 minutes. The COVID-19 lockdowns also caused an uplift in subscription VoD use amongst older adults; almost a third (32%) of 55-64 year-olds used subscription services in the early lockdown period, up from 25% pre-lockdown, while 15% of over-64s used them (up from 12%).

3. Ensuring VoD services are regulated

This section of the consultation considers and invites responses on whether VoD services which target UK audiences, but are not currently within UK jurisdiction, should be regulated by Ofcom. This section also considers which VoD services, outside of UK jurisdiction, should be regulated.

The largest and most recognised services in the UK are BBC iPlayer, ITV Hub, All4, My5, BritBox, Netflix, Amazon Prime Video, Now TV, Disney+ and Apple TV+. Of these, Ofcom regulates the UK-based services (all of the above excluding Netflix and Apple TV+), and sets standards for around 120 other VoD.

Currently, Ofcom is only able to regulate a service if both its head office and editorial decision-making function are based in the UK. Following the UK’s departure from the European Union (EU) and consequent withdrawal from the EU’s Audiovisual Media Services Directive, EU-based VoD services such as Netflix (whose European operations are based in the Netherlands) are no longer under any regulatory framework with regards to UK audiences. EU-based services will still have to meet the minimum standards under the Audiovisual Media Services Directive for their content available to EU audiences, which are the equivalent to current UK standards.

International VoD services which target UK audiences (for example Apple TV+) currently would only have to meet standards, if any standards at all, in the jurisdiction in which they are based. Excluding censorship, or the barring of services in some countries, there is little content regulation of VoD services outside the EU.

Whilst the majority of content available to UK audiences from foreign-based VoD services would not cause concern - and these VoD services, in general, have independently introduced their own systems to protect audiences - this is not compulsory and therefore relies on their own self regulation. In addition, if VoD services are not based in the UK, there is no legal regulatory redress for UK citizens.

3.1 VoD services which are regulated in the UK

For VoD services regulated by Ofcom, the current regulatory framework came into force on 1 November 2020. A service or a ‘dissociable section’ of a service will now need to notify Ofcom if:

• its principal purpose is the provision of programmes with or without sounds which consist of moving or still images, or of legible text, or of a combination of those things

• access to it is on-demand

• there is a person who has editorial responsibility for it

• it is made available by that person for use by members of the public

• that person’s head office is in the United Kingdom (UK); and

• editorial decisions about the service are taken in the UK

Previously, a service could only be regulated by Ofcom if the programmes it included were comparable to the form and content of programmes normally included in television programme services. The removal of this requirement is likely to mean that a wider range of services in the UK will be required to notify Ofcom. Though for clarity, newspaper websites as a whole are outside the scope of the regulations, except where they provide a separate video-on-demand service. Following consultation, Ofcom is expected to publish updated guidance by Autumn 2021.

Ofcom must also establish and maintain an up-to-date list of persons providing regulated VoD services. Roughly a third of VoD services regulated by Ofcom are operated by large scale media companies with links to major broadcasters or large technology companies. Up to 15% are adult/pornographic services.

At this time the government believes the current framework adequately captures VoD services based in the UK. Therefore, this consultation does not consider changes to rules determining which VoD services within the UK are regulated. Section 4 of this consultation onward does however consider whether VoD services are adequately regulated and whether VoD services, particularly those that offer a TV-like service, should be brought closer in line with the regulation of linear broadcasting.

3.2 Bringing VoD services within UK jurisdiction

The government is concerned that VoD services based outside the UK, and therefore not regulated by Ofcom and a UK level of standards, are increasingly providing unregulated content to UK audiences. Whilst this increase in choice is of benefit to UK audiences, it does increase the potential harm, particularly if audiences are unaware of the regulatory gap. Even if services are under some form of regulation in their country of origin, this does not extend to UK audiences and will not fully reflect UK views on appropriateness of content. The government also believes that it is important to level the playing field between those under UK regulation and those VoD providers not presently under UK regulation who actively target and benefit from UK audiences.

It is estimated that there are currently around 750 subscription or transaction VoD services available in the EU, of which the majority will not be targeting UK audiences. At this time it is difficult to firmly estimate the level of VoD services across the rest of the world or which audiences they target.

It would not be practical or necessary for Ofcom to identify and regulate all VoD services outside the UK which can be accessed by UK audiences to the same scale it regulates VoD services based in the UK. Smaller services would be difficult to identify and it would be unnecessary to apply UK standards to content that UK audiences would be unlikely to come across.

The government is therefore minded only to bring larger non-UK VoD providers which target UK audiences under Ofcom’s jurisdiction. This would enable Ofcom to set consistent content standards and audience protection requirements for the overwhelming majority of non-UK VoD content watched by UK audiences.

Regulating companies based outside the UK was considered in the Online Harms White Paper published in 2019 and the full government response in 2020. The draft Online Safety Bill (which is subject to pre-legislative scrutiny) imposes duties of care on providers of online content-sharing platforms and search services. The legislation is intended to apply to any in-scope provider of user-to-user services or search engine services with links to the UK, regardless of where it is based in the world.^{[footnote 2]} Ofcom would enforce compliance and its powers would include being able to fine providers up to £18 million or 10% of their annual global turnover, whichever is higher, and have the power to block access to sites.

The parameters of how non-UK based VoD providers could be captured within regulation could be based on a variety of different metrics. These could include, for example, size of audience in the UK, the number of UK subscriptions, accessibility in the UK, turnover, or designation (choosing) depending on potential harm or risk. Given the variety of different VoD models, it may be that different approaches to viewers necessitates different approaches; for example, a threshold based on UK subscriber numbers may not work for an advertising VoD model.

In determining the extent of regulation it will be important to consider how this information could be gathered and at what level the bar should be set. For example, Ofcom currently uses reported turnover (as submitted to Companies House) to determine the level of annual fee for regulating VoD services with thresholds at £10 million and £50 million. A medium-sized enterprise in the UK is defined as having less than 250 employees and a turnover of £41 million. Regarding audience size or subscriptions, Netflix and Apple TV+ both have large subscription bases in the UK, but exact data for smaller services are not always consistently available. Ofcom considers how to make proportionate exemptions from VoD regulation in their recent statement on VoD accessibility requirements on the basis of affordability, audience benefit, and technical difficulty.^{[footnote 3]}

Giving a power to Ofcom to designate services outside the UK based on a number of factors including risk or potential harm, or simply identifying the services in legislation which should be captured might be simpler and more effective. This approach may also be more proportionate and dynamic, enabling Ofcom to revise thresholds or metrics as audience habits change.

Questions on jurisdiction

Q1 - Should VoD services not currently regulated in the UK be brought within UK jurisdiction? Yes/No? Please explain your reasoning.

Q2 - If non-UK VoD services are brought within UK jurisdiction, how should the parameters of capture be measured?

4. Scope of VoD regulation

This section of the consultation explores the differences between the broadcasting (television and radio) licensing regime and the current notification system that VoD services adhere to in the UK. It invites responses on the scope of regulation and what obligations VoD services should have. More detailed questions on content regulation are set out later in the document.

4.1 Current regulation

Under UK law, television and radio broadcasters normally require an Ofcom licence in order to provide content into the UK.^{[footnote 4]} These licences, as well as ensuring broadcasters meet the Broadcasting Code, set out a range of requirements. VoD services do not need a licence and instead are required to follow a notification process with Ofcom if they are based in the UK. This involves notifying Ofcom of their intention to provide a VoD service in the UK; though if a service is under Ofcom’s jurisdiction but does not notify Ofcom, it is still required to meet the ODPS rules.

There are fewer rules under the current notification system than broadcast licensing, which are summarised below.

Broadcasting Licence Obligations	Are VoD services required to meet this under the current notification system?
Requirement to comply with standards set under the Broadcasting Code	No - must only comply with ODPS rules
Meeting Ofcom’s Fit and Proper test to ensure persons are appropriate to hold a licence	No
Having procedures in place to manage i) fairness and privacy and ii) content standards complaints	No
Obligations relating to equal opportunities and training to support increasing diversity in the television broadcasting sector	No
Ensuring fair and effective competition in the provision of licensed services	No
Meet requirements for the handling of communications from viewers	No
Putting in place adequate compliance procedures to ensure that the licensee can comply with its licence conditions and Ofcom’s codes and rules	Yes for ODPS rules
Providing information following a change of organisation control	Yes
Paying annual fees to Ofcom	Yes
Arranging for the retention of recordings of television broadcast content for at least 60 days and providing those recordings to Ofcom when requested	Yes - For on-demand, it is at least 42 days

Parliament has also put in place a number of specific restrictions which prevent or restrict certain types of bodies (for example, political or religious bodies) from holding some or all broadcast licence types.^{[footnote 5]} The government is not currently minded to extend this restriction to VoD services, particularly for organisations which already run a service or are outside UK jurisdiction. This is because a blanket block of certain persons or organisations (rather than, for example, testing the appropriateness of all VoD services through a Fit and Proper test as as set out above) could be considered as excessive or unfair, particularly for organisations which already provide a good service or are currently outside UK jurisdiction.

The government is open to whether or not to create a new licensing regime for VoD services; or, to adapt the current notification system already in place. Both systems would likely allow the majority, if not all, the potential outcomes of any regulatory change. The current notification system is more familiar to VoD services, which could reduce familiarisation costs to VoD providers. Traditionally licensing was required for broadcasters as they needed permission to use a portion of the radio frequency spectrum in a given geographical area for broadcasting purposes. It is a criminal offence to broadcast without a licence in the UK. VoD services do not require spectrum and therefore it is unnecessary to manage the size or number of services.

4.2 Enforcement

For licensed television services and VoD services under Ofcom jurisdiction, where there has been a breach of licensing conditions or ODPS rules (for example where the Broadcasting Code has been breached), Ofcom will normally publish a finding and explain why there has been breach. There are a number of sanctions available to Ofcom where serious, repeated, deliberate and/or reckless breaches have occurred, including for television broadcast licences: a direction not to repeat content; a direction to broadcast/put up a correction or a statement of Ofcom’s findings; financial penalties; and potentially revoking a licence. For VoD providers, Ofcom can: issue a direction to suspend or restrict the entitlement to provide the VoD service; or impose a financial penalty. Only in the most serious cases will Ofcom impose statutory sanctions against a broadcaster or VoD service.

An effective regulator needs a suite of powers and sanctions available to deal with situations - from the relatively minor to the more serious. The government will also consider whether Ofcom has the right balance of tools and powers to enforce compliance by VoD providers following any change in regulation.

4.3 Regulatory scope for VoD services

Alongside the consideration set out in section 4.1 of this document as to whether a licensing regime would be preferable to the current notification system currently used or whether to adapt current systems already in place, the government is also considering what licence obligations, if any, would be appropriate to extend to VoD services to support audience protection and ensure greater consistency between linear broadcasters and TV-like VoD services. Whilst some areas of licensing would be difficult or unnecessary to duplicate in VoD regulation when regarding audience protection (for example, ensuring fair and effective competition in the provision of licensed services), other areas such as obligations around managing complaints and communications from viewers may be more appropriate.

The government is not considering increasing taxes or putting levies on VoD services to produce a certain quota of content. The UK already is a major provider in both development and production across VoD services and therefore no additional requirements on these services are needed at this time.

More detailed questions on audience protection regarding the Broadcasting Code and other measures are set out in the following sections.

Questions on scope of regulation

Q3 - What type of regulatory system should be used - notification, licensing or another type of system? Please explain your reasoning.

Q4 - Should VoD services be brought under additional obligations? Yes/No? What additional obligations should VoD services have? Please explain your reasoning.

5. Bringing VoD content regulation in line with television

5.1 Current VoD content regulation

As set out in section 3.1, Ofcom regulates programme content on UK-based VoD services. VoD services include TV catch-up and online film services. The platform on which these on-demand services are delivered does not matter, so services on connected TVs, apps on mobile phones and programmes received through set-top boxes may all be regulated.

Unlike linear regulation where Ofcom sets standards through the Broadcasting Code, Ofcom must secure compliance by VoD providers who are legally obliged to comply with requirements which are set out in Part 4A (on-demand programme services) of the Communications Act 2003.^{[footnote 6]}

Under the current requirements, regulated VoD services must have systems in place to ensure that:

Protecting the under-18s

• ‘specially restricted material’ (which has been or would be classified in the R18 category by the British Board of Film Classification (BBFC), or material which might impair the physical, mental or moral development of under-18s, is made available in a way which secures that under-18s) will not normally see or hear it

• ‘prohibited material’ (which would be refused a classification by the BBFC or includes conduct relating to terrorism, child abuse and sexual exploitation, racism or xenophopia which would be punishable as a criminal offence) does not appear

Incitement to hatred

• programming does not contain any material likely to incite violence or hatred;^{[footnote 7]} and

Commercial references in programmes

• rules about advertising, product placement and sponsorship are complied with.

Generally, if someone would like to complain about editorial content (i.e. programming) on a regulated VoD service, Ofcom will direct them to initially contact the VoD provider.^{[footnote 8]} Following this, if they are dissatisfied with their response, or have not received an acknowledgement in 10 working days or full response in 20 working days, they can complain to Ofcom using Ofcom’s online form. Ofcom will consider this complaint, but its regulatory power is restricted to investigating complaints set out in the current ODPS rules only.

Current ODPS rules do not provide Ofcom with the power to regulate wider content matters, for example considering the accuracy of information. As a consequence, services regulated currently predominantly manage their own content complaints under a self-regulatory system. This notwithstanding, within the limits of the ODPS rules, Ofcom will consider a complaint first in relation to any VoD service which is not on their list of providers or if the complaint relates to harmful material.

The way Ofcom regulates BBC iPlayer is different to other VoD services. Under the 2016 BBC Charter and Framework Agreement, iPlayer content is subject to the same Broadcasting Code to which television channels have to adhere.

5.2 Increasing standards

The government is increasingly concerned with the disparity between the regulation of linear television and TV-like VoD services, which do not provide the same level, or consistency, of audience protection. ‘TV-like’ VoD services are mainstream services, such as Netflix or ITV Hub, where viewers watch programming interchangeably with traditional linear services.

Linear broadcasters are licensed by Ofcom to broadcast in the UK and have to follow certain licence obligations. This includes adhering to Ofcom’s Broadcasting Code, which sets extensive protections for audiences against harm and offence. This is different to VoD services, which only need to conform with ODPS rules (as set out in section 5.1) around not including content which is likely to incite violence/hatred, prohibited material and taking appropriate measures to ensure persons under 18 will not normally see or hear specially restricted material.

Ofcom research into audiences’ changing attitudes towards content standards across platforms shows that audiences generally mistakenly expect their level of protection to be similar across broadcast and VoD. On the other hand, some seem comfortable with catch-up and subscription services having fewer rules than broadcast TV and radio. This was because they felt they had an active choice in selecting content and were therefore more in control on these platforms. Ofcom research in 2019 found that 34% of adults thought there should be more regulation of subscription VoD services.

5.3 VoD content regulation and the Broadcasting Code

This section of the consultation invites responses on whether the Broadcasting Code, with which linear television and BBC iPlayer must comply, should be extended to VoD services, either in part or in full, and how any changes should be introduced proportionately. This consultation is not considering changes to the actual Broadcasting Code (or the standards objectives required to be secured by Ofcom) itself; rather, it covers which elements of the Code (or standards objectives), if any, should apply to VoD.

Ofcom is required under the Communications Act 2003 and the Broadcasting Act 1996 to draw up a code for television and radio, covering standards in programmes - this is called the Broadcasting Code. Ofcom has responsibility for the Broadcasting Code, including for any amendments. The Broadcasting Code is kept under continual review. In setting these standards, Ofcom must secure the standards objectives set out in legislation (primarily set out in section 319 of the 2003 Act). This not only involves setting minimum standards but also such other standards in legislation as may be appropriate.^{[footnote 9]}

To meet the standards objectives set out in legislation, Ofcom’s Broadcasting Code contains nine sections of content rules for licensed television providers. VoD rules (which are not subject to these standards) are considerably narrower in scope than the Broadcasting Code, with five issues dealt with by the Code not applying to VoD services (aside from BBC iPlayer) at all.

As well as protecting audiences, Ofcom’s Broadcasting Code rules also extend to people taking part in programmes, whose mental and physical health should also be properly looked after. New rules brought in by Ofcom in 2021 designed to protect people who appear on television and radio shows do not currently extend to VoD programming.

A summary of the linear Broadcasting Code and how it compares with VoD ODPS rules is set out below:

Broadcasting Code rules partly reflected in VoD rules:

Protecting the Under-18s (Section 1)

The Broadcasting Code rules include a range of rules protecting under-18s, including the watershed, to prevent linear channels from broadcasting content that might impair the physical, mental or moral development of people under eighteen. The ODPS Rules contain measures to protect under-18s in respect of specially restricted material which is akin to the Broadcasting Code’s R-18 and adult sex material. However, they do not include, for example, rules on the coverage of sexual and other offences in the UK involving under-18s, demonstrations of exorcisms, occult practices and the paranormal. The ODPS Rules do not require services to provide due care to the physical and emotional welfare, and the dignity, of people under eighteen who participate in programmes.

Protections from Harm and Offence (Section 2)

The Broadcasting Code rules ensure that generally accepted standards are applied so as to provide adequate protection for members of the public from the inclusion of harmful and/or offensive material. For example, this includes the standard that factual programmes or items or portrayals of factual matters must not materially mislead the audience and any material which may cause offence is justified by the context. This section also contains rules to protect participants who take part in programmes. Ofcom’s ODPS Rules currently contain rules against harmful material; that is material which is likely to incite violence/hatred, prohibited material (which comprises material which would be refused a classification by the BBFC or includes conduct relating to terrorism, child abuse and sexual exploitation, racism or xenophopia which would be punishable as a criminal offence) and ensuring appropriate measure are taken so that persons under 18 will not normally see or hear specially restricted material. Currently this does not prevent VoD programming which promotes factually incorrect health solutions and pseudoscience documentaries without any warnings. This risk is increased because audiences have a greater level of trust and could incorrectly believe that the content is more strongly regulated than it is.

Protections on Crime, Disorder, Hatred and Abuse (Section 3)

The Broadcasting Code rules ensure that material likely to encourage or incite the commission of crime or to lead to disorder is not included on television or radio services. The ODPS Rules only contain rules preventing content likely to incite violence or hatred or (as set out above) conduct relating to terrorism, child abuse and sexual exploitation, racism or xenophopia which would be punishable as a criminal offence.

Broadcasting Code measures not reflected in VoD rules:

Religious programming protections (Section 4)

These rules ensure that religious programmes broadcast on television and radio do not involve any abusive treatment of religious views and beliefs or any improper exploitation of any susceptibilities of the audience. Religious programming on VoD services is not currently regulated under these rules, and whilst the majority of programming would not raise concerns, there is risk that religious programming now and in the future (particularly on niche services) could contain more extreme messaging and that this should be independently regulated.

Due Impartiality, Due Accuracy and Undue Prominence of Views and Opinions (Section 5)

This ensures that broadcast news, in whatever form, is reported with due accuracy and presented with due impartiality. Due impartially also applies to non-news content when dealing with matters of political or industrial controversy and matters relating to current public policy. Section 2 (above) also requires broadcasters to ensure that factual content does not materially mislead their audience. These rules do not currently apply to VoD services. This means that VoD programming does not have to follow impartiality or accuracy rules. Whilst currently there is limited news-like (or current affairs) content available on VoD, this is an area that could expand in the future with new entrants to the market. As set out in the section on harm above, there are also concerns around accuracy of some documentary-like programming. Any change would need to be carefully considered to ensure an appropriate balance between protecting people and protecting fundamental freedoms.

Elections and Referendums (Section 6)

There are specific impartiality requirements during election and referendum periods. This includes due weight being given to political parties, maintaining due impartiality and giving the appropriate coverage of candidates. VoD services are not regulated under these rules and therefore at UK election periods do not do not need to ensure due impartiality in programming dealing with matters of major political or industrial controversy and major matters relating to current public policy. Without additional rules this could have a negative impact on the fairness of future elections.

Fairness (Sections 7) and Privacy (Section 8)

These rules ensure that broadcasters avoid unjust or unfair treatment of individuals or organisations in programmes. They also ensure that broadcasters avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes. These rules do not currently apply to VoD services and therefore there is no regulatory route to follow if a person considers their representation in a programme to have been unfair or if an individual’s privacy is infringed upon.

5.4 Application of the Broadcasting Code to VoD Content

BBC iPlayer is the only VoD service which is required to adhere to the rules in the Broadcasting Code. This is due to the 2016 Charter and Framework Agreement which sets out the purposes of the BBC. In applying the Broadcasting Code to iPlayer, Ofcom takes into account the on-demand nature of the service. For example, in the case of the watershed requirement to schedule material after 9pm in order to protect children from unsuitable content, BBC iPlayer is required to have measures that provide equivalent protection. This includes providing clear information that content may distress some children before a programme on iPlayer begins. The government considers the current application of the Broadcasting Code to iPlayer to be a potential framework for broadening regulation to all VoD services targeting UK audiences.

To date, content from other broadcaster catch-up services (ITV Hub, All 4 and My5) and to a lesser extent Sky’s Now, would have generally been broadcast in the UK before appearing on the VoD service, and therefore would have been indirectly subject to the Broadcasting Code. However, a substantial amount of content on other VoD services such as Netflix, Amazon Prime, Apple TV+ and Disney+ would not have been previously broadcast in the UK and therefore have not been subject to any regulation. In addition, content is increasingly appearing on broadcaster VoD services before it appears on television and therefore also not subject to the higher standard of Ofcom regulation at that time.

There are also practical considerations for some VoD services. Some standards could be disproportionate if applied in full - for example extending certain rules may undermine freedom of expression. Similarly, for small or niche services, it could be disproportionate for their business model to be required to comply with the very high standards of the Broadcasting Code. Therefore, when considering whether and how the Broadcasting Code shall be extended to TV-like VoD services, elements like the size of providers and audience reach of services, as well as the type of content or programming that services provide, will be considered.

Not all VoD providers deliver a TV-like experience, therefore a focus of this review will be ensuring that any regulatory change is proportionate. This will ensure freedom of speech is not stifled. Any change will need to find the correct balance between protecting people - particularly the young and vulnerable - while protecting fundamental freedoms. The overall impact of regulatory change is covered in section 8.

Questions on bringing VoD services under the Broadcasting Code

Q5 - Do you think that VoD services should be regulated under the Broadcasting Code? Yes/No? Please explain your reasoning.

Q6 - Are there any specific elements of the Broadcasting Code (or standards set out in legislation) that should not apply to some or all VoD services? If so, what elements should not apply and to which VoD services?

6. Enhancing protections for audiences

This section of the consultation invites responses on the effectiveness of existing measures for protecting VoD audiences, in addition to consideration on the Broadcasting Code set out in the section above. It also seeks information on what further measures, if any, should be put in place.

6.1 Current protections

As set out in section 5, current UK regulation for VoD services aligns with minimum standards set out in EU regulation under the revised Audiovisual Media Services Directive. This sets out that VoD services must ensure that under 18s will not normally see or hear material which might impair their physical, mental or moral development.

The government considers that the main VoD services available in the UK have introduced their own systems to provide audience protection that exceed the existing minimum requirements set out in regulation. To do this, VoD services apply a range of tools, both automatic and user-activated, including password-protected accounts, pin codes, content warnings including UK and international age classifications, and age verification. However these tools are not standardised across services and can lack familiar, trustworthy signposting and guidance, which can cause some concern and confusion, as well as potential for harm to users.

Many VoD services enable adults to set PIN codes or passwords to prevent access to the services or to restrict 18+ or 16+ content. Some services enable content to be limited by maturity level, e.g. younger children, older children, teenagers and adults. If a PIN code is not enforced and a programme has a guidance statement, the user is often required to confirm they are of a certain age before viewing the content.

6.2 Content warnings and guidance

As set out in the above section, the Broadcasting Code for linear television requires that children are appropriately protected from material that is unsuitable for them. This is generally enacted through the watershed, which requires that certain content can not be broadcast before 9pm. Post-watershed content can be broadcast on linear TV during the day through mandatory daytime pin protection. There is no watershed on VoD services; content can be watched at any time, subject to restrictions parents or guardians may place using the tools VoD services provide.

Ofcom provides guidance that for television programmes broadcast before the watershed, or for BBC iPlayer, content that is likely to be accessed by children, clear information about content that may distress some children should be given, if appropriate, to the audience. Furthermore, the Broadcasting Code stipulates that any material which may cause offence to any audience, regardless of age including after the watershed, should be accompanied by “appropriate information” where it would assist in avoiding or minimising offence.

Some VoD programming has been criticised for displaying content that was problematic and/or trigger mental health conditions for viewers, for example showing graphic depictions of suicide and sexual assault that may be distressing for survivors. Some VoD programming can portray what is perceived as factual information in documentaries, and is nevertheless inaccurate. This is particularly concerning regarding information provided in programming on health or climate change, for example. These are matters of serious concern which could be tempered with better guidance to warn audiences as to the nature and type of content available, and therefore enable conscious choice before watching a programme.

Currently, a number of VoD services provide guidance statements on some content, typically at the beginning or in the description of the programme before it begins playing. The guidance is usually accompanied by a label (such as Netflix using a British Board of Film Classification (BBFC) classification), and a description of why the content will be potentially unsuitable for some viewers. These are automatic measures individual VoD services enable and they typically seek to demonstrate the level of risk the programme presents, for example through an assessment of the categories such as language, violence, upsetting or disturbing content, adult humour/themes, sex/nudity, drugs and flashing images.

However, there is no standardised system of content descriptions and age classifications on VoD services. This can cause confusion for audiences, particularly as VoD services’ guidance is often designed for an international market and therefore does not necessarily accurately reflect UK views on appropriateness of content for children.

6.3 UK standard classification

The recognised classification body for video content, responsible for implementing appropriate age classification measures in the UK, is the BBFC. The BBFC is a non-governmental, independent body which is designated by the Secretary of State as the ‘designated authority’ for the classification of video works.^{[footnote 10]} The BBFC also classifies films screened in cinemas on behalf of local authorities, in relation to licences issued under the Licensing Act 2003. This means the BBFC currently classifies films for cinema release and video content on packaged media releases (such as DVDs) in the UK.

The standards underpinning the BBFC’s ratings (U, PG, 12A/12, 15, 18 and R18) are set out in their published Classification Guidelines, and are based on regular consultation with the UK public and with experts. The BBFC also provides content advice (‘ratings info’) for every film and TV episode they classify. Short ratings info (e.g. ‘strong bloody violence, sex, language’) is displayed in cinemas before the exhibition of a BBFC-classified film, on DVD/Blu-ray packaging, and on a number of the BBFC’s VoD partners. Long ratings info, which provides greater detail about the issues contained within a particular work, is published on the BBFC’s website and app.

While the Video Recordings Act 1984 requires that the majority of video works released on physical media must be classified by the BBFC prior to release, there is no equivalent legal requirement that online releases must be classified. As such, just as there is a disparity between the traditional audience protection available on linear television compared to VoD services, there is also a disparity in audience protection available at the cinema or when purchasing products such as DVDs, compared to VoD services.

Recognising their value, in particular that they are already well known to UK viewers, some VoD services already voluntarily use BBFC age ratings across their content. For example, the BBFC has partnered with Netflix, which now provides BBFC classifications for all of the content in its library through an in-house compliance process, audited by the BBFC. Other VoD services use BBFC ratings across some, but not all, of their content and may use their own in-house ratings across the rest of their library of content. This means there can be inconsistency in age ratings used even within a single VoD service. Some VoD services do not use BBFC ratings across any of their content.

Not all content available on VoD services would necessarily need age classification or warnings. For example, traditional daytime entertainment programming from UK regulated broadcasters are subject to the watershed which ensures unsuitable programming for children is generally not shown. However some programming, like films or TV series, much of which would have already been rated by the BBFC, is more likely to contain content for older audiences and therefore more suitable for age ratings and further information on what the programming contains.

Enhancing (or standardising) audience protection measures and/or warnings and guidance could impact how services are delivered. This is set out in more detail in section 8, but the cost of reviewing libraries or bringing in new systems could have an impact on some VoD services which in turn could be passed on to audiences - for example through increased subscription costs and advertising or through reduced availability of content. In particular, there would be costs related to age ratings outside of what the BBFC charges, including costs in monitoring and compliance required by VoD services.

Some types of content, for example news broadcasts or current affairs programmes could be more difficult, or impractical, to rate under the current systems. For broadcaster VoD services in particular, it may also delay some recently broadcast (particularly live) programming before such content appeared on their VoD service to enable it to be age rated. This would impact viewers who rely on catch-up who would then have to wait longer for their content.

Age rating classification may be inappropriate or disproportionate for some VoD providers, particularly smaller or more niche services or where material is made available on a very quick turnaround basis. A requirement for VoD content to be classified may make the VoD rules more onerous than the broadcasting rules, which do not require classification, and add a level of regulation ahead of content being available which does not exist on broadcast.

Questions on audience protections

Q7 - Do you think the current protections used by VoD services provide a sufficient level of protection for audiences? Yes/No? Please explain your reasoning. In particular, if no, what additional measures should be provided?

Q8 - Should there be increased conformity on protection tools and warning systems across all VoD services to provide more consistency for UK audiences? Yes/No? Please explain your reasoning.

Q9 - Should a UK classifications/warnings system (such as the age classification system operated by the BBFC) be mandatory? Yes/No? What types of content would be most appropriate to require classifications/warnings? Please explain your reasoning.

7. Additional areas of regulation

This section of the consultation sets out additional areas of regulation of VoD services which this consultation does not cover. It is included to give a fuller picture of other areas of VoD regulation. Responses on these areas will not be considered.

7.1 Accessibility of VoD services

The government recognises that as part of a digitally-inclusive society, television content should be accessible for all UK audiences regardless of which platform is used to view that content. Under the Communications Act 2003, the Secretary of State has the power to impose requirements on service providers for the purpose of ensuring that VoD services are accessible to people with disabilities. This includes requirements in relation to subtitling, audio description and sign language.

As part of the implementation process, in 2017 the government asked Ofcom to provide recommendations on how legislation could make on-demand services more accessible. Ofcom published their report in December 2018 and DCMS began working with Ofcom to develop the legislative framework for future requirements.

In November 2019, DCMS wrote to Ofcom requesting that they complete a further targeted consultation to provide recommendations on specific aspects of the scheme. The consultation closed on 16 September 2020 and Ofcom published their consultation response on 9 July 2021. DCMS will give careful consideration to Ofcom’s recommendations and will set out next steps in due course. It is important to ensure that any legislation introduced is proportionate while making more content accessible to consumers.

7.2 High Fat Salt and Sugar (HFSS) and advertising on VoD services

In July 2020 the government launched its tackling obesity strategy, to empower adults and children to live healthier lives. Obesity is one of the greatest long-term health challenges this country faces. In addition to this strategy, the government launched two consultations on introducing further advertising restrictions on TV and online (including VoD) for products high in fat, sugar and salt (HFSS).

The government’s response to the consultation around HFSS was published on 24 June 2021. Halving childhood obesity by 2030 is a key priority. The government therefore plans to bring in new HFSS advertising restrictions into force at the end of 2022 across both TV and online at the same time. This policy is part of a plethora of policies seeking to tackle obesity, all of which will be part of the Health and Care Bill.

The Health and Care Bill will include provisions which will seek both to introduce a 9pm TV watershed for HFSS product advertising and a restriction of paid-for HFSS advertising online. All VoD services regulated in the UK by Ofcom will be included in the TV watershed for HFSS advertising. Non-UK regulated VoD services will be included in the restriction of paid-for HFSS advertising online.

A wider review into online advertising, including advertising on VoD services, is currently taking place following a call for evidence in 2020. The Online Advertising Programme will examine how best to strengthen standards around the placement and content of online advertising to minimise the harms online advertising can present, and to ensure online advertising can be effectively regulated.

7.3 Contributions to the BFI National Archive

The British Film Institute (BFI) National Archive holds one of the largest moving image collections in the world; more than 7 million items primarily consisting of film and television content. The Archive seeks to support the preservation, restoration and dissemination of culturally British screen content, ensuring that the on-screen stories which play a central part of our nation’s public and cultural life are preserved and made accessible for current and future generations. The majority of the collection is British originated material, but it also features internationally significant holdings from around the world (though it does not actively acquire international titles).

Due to obligations set out in statute, including within the Communications Act of 2003 and Broadcasting Act of 1990, Public Service Broadcasters (excluding the BBC which has its own archival requirements) must make their UK content available for acquisition by the Archive, with the Archive selecting the most culturally relevant content for collection. The Public Service Broadcasters must also make a proportionate financial contribution for securing and maintaining this content. Ofcom is responsible for overseeing this system. Whilst historically most culturally-relevant British content has been made by Public Service Broadcasters, it is now the case that an increasing amount of content is made by VoD services. Whilst this consultation will not consider responses relating to the Archive, the government is separately considering the suitability of expanding the existing requirement to support the Archive, to also include VoD services.

8. Impact on VoD providers and audiences

This section of the consultation invites responses on the impact of changing VoD regulation on individual VoD providers and correspondingly the impact that might have on their audiences in the UK. Whilst this section is primarily aimed at VoD providers, responses from individuals will also be considered.

The government expects that a change to regulation will have some impact on VoD providers, both in financial costs and in terms of employee resources to ensure familiarisation and compliance with new regulations. Whilst this might have a minimal effect on some providers, it could have a greater impact on others. This impact could, in turn, have an effect on the service it provides UK audiences, for example through a reduction in available content or an increase in subscription charges or viewer targeted advertising.

There are also costs associated with fulfilling Ofcom’s regulatory functions and, consequently, Ofcom may levy additional fees on VoD providers (on top of the fees it already charges). If it does, these must not exceed an estimate of likely costs for carrying out relevant functions. Ofcom must be satisfied that any fee they require a provider to pay represents the appropriate contribution of that provider to those costs. The fee must also be justifiable and proportionate bearing in mind the provider who will have to pay it and the functions for which it is imposed.

Ofcom currently has a tiered structure based on the overall turnover of VoD providers. VoD providers with a turnover of under £10 million do not pay an annual fee. Following any change in regulation and Ofcom’s duties the government would expect Ofcom, following consultation, to increase fees. It is the government’s expectation, at this stage, that Ofcom will cover all costs of running the regime from industry fees.

Ofcom’s current fee structure for 2021/22

Category	Estimated turnover	Annual fee
C	Under £10m	£0
B	>£10m but less than £50m	£2,667
A	>£50m	£5,333

As a not-for-profit organisation, the BBFC charges for access to its age ratings in order to cover its costs, which it has historically sought to minimise. As such, adoption of BBFC ratings by VoD services would have an economic implication for these services. Nevertheless, the BBFC is exploring options to make its classifications more affordable and quicker for VoD services - for example, the BBFC have piloted with Netflix an in-house compliance process, whereby VoD services adapt their existing age rating processes to generate enough data to consistently produce accurate BBFC ratings, a sample of which are regularly audited by the BBFC. Nonetheless, adopting this system would still have an economic impact on VoD services, particularly those services with larger libraries of content. There could also be additional costs related to age ratings outside of what the BBFC charges, including costs in monitoring and compliance required by VoD services. Introducing age ratings/warnings could also disproportionately affect particularly small or niche services or services who generally do not attract under-18s.

The government is minded to improve regulation on VoD services, but it is important that any change in regulation to improve audience protection is proportionate to the risk to UK audiences and the economic impact of additional regulatory requirements. Increases in costs to VoD services could have a detrimental impact on UK content choice and investment, or increase subscription/transaction charges. Enhanced VoD regulation would impact all VoD services. However, the government is mindful that the impact would be different depending on factors including the business model, turnover, library size and type of content provided, and target audience.

Questions on the impact of changes to regulation

Q10 - What impact could the proposals set out in the consultation document have on VoD providers and the delivery of services? What are the potential direct and indirect costs of additional regulatory requirements for VoD providers? These would include (but are not restricted to) potential costs associated with standardising audience protection measures, updating library content to conform with the Broadcasting Code and/or new standards of warnings/guidance like BBFC ratings. If possible, please provide impact/cost for each proposal separately.

Q11 - What impact could the proposals set out in the consultation document have on UK audiences and the service that UK audiences receive (this is in addition to the benefits of increased audience protection)? To what extent would additional costs be passed onto consumers, for example through higher subscription fees?

9. List of all consultation questions

Respondent details

Are you responding:

• as an individual (viewer)

• on behalf of a business

• other (please specify)

If responding on behalf of a business, which industry best describes the work of the business?

Questions on jurisdiction

• Q1 - Should VoD services not currently regulated in the UK be brought within UK jurisdiction? Yes/No? Please explain your reasoning.

• Q2 - If non-UK VoD services are brought within UK jurisdiction, how should the parameters of capture be measured?

Questions on scope of regulation

• Q3 - What type of regulatory system should be used - notification, licensing or another type of system? Please explain your reasoning.

• Q4 - Should VoD services be brought under additional obligations? Yes/No? What additional obligations should VoD services have? Please explain your reasoning.

Questions on bringing VoD services under the Broadcasting Code

• Q5 - Do you think that VoD services should be regulated under the Broadcasting Code? Yes/No? Please explain your reasoning.

• Q6 - Are there any specific elements of the Broadcasting Code (or standards set out in legislation) that should not apply to some or all VoD services? If so, what elements should not apply and to which VoD services?

Questions on audience protections

• Q7 - Do you think the current protections used by VoD services provide a sufficient level of protection for audiences? Yes/No? Please explain your reasoning. In particular, if no, what additional measures should be provided?

• Q8 - Should there be increased conformity on protection tools and warning systems across all VoD services to provide more consistency for UK audiences? Yes/No? Please explain your reasoning.

• Q9 - Should a UK classifications/warnings system (such as the age classification system operated by the BBFC) be mandatory? Yes/No? What types of content would be most appropriate to require classifications/warnings? Please explain your reasoning.

Questions on the impact of changes to regulation

• Q10 - What impact could the proposals set out in the consultation document have on VoD providers and the delivery of services? What are the potential direct and indirect costs of additional regulatory requirements for VoD providers? These would include (but are not restricted to) potential costs associated with standardising audience protection measures, updating library content to conform with the Broadcasting Code and/or new standards of warnings/guidance like BBFC ratings. If possible, please provide impact/cost for each proposal separately.

• Q11 - What impact could the proposals set out in the consultation document have on UK audiences and the service that UK audiences receive (this is in addition to the benefits of increased audience protection)? To what extent would additional costs be passed onto consumers, for example through higher subscription fees?

10. Next steps and how to respond

10.1 Next steps

A summary of responses and the government’s response to this consultation will be published in due course following the closure of the consultation.

The government’s response will take all in-scope responses submitted to this consultation into account, and will be based on careful consideration of the points made in consultation responses, not the number of responses received.

Nothing in this consultation is intended to prejudge the outcomes, nor limit the implementation, of the government’s broader strategic review of public service broadcasting.

Subject to the outcomes of the strategic review, the government intends to bring forward a White Paper later this year which will consider the future of the country’s broadcasting landscape with the ultimate aim of making sure it serves listeners and viewers on all platforms and across the UK.

See further information on the consultation principles.

10.2 How to respond

Comments from all individuals or organisations on the issues raised in the consultation who may be interested are welcomed. The consultation will close at 23:45 BST on 26 October 2021.

Please fill in the survey. If you cannot access the link, please email your response to vodconsultation@dcms.gov.uk or post your response to:

VoD Consultation
TV & Broadcasting Team
DCMS
4th Floor, 100 Parliament Street
London
SW1A 2BQ

A Welsh language version of this consultation document will be published shortly. If you have any questions on the consultation document or on how to respond, please contact vodconsultation@dcms.gov.uk

11. Disclosure of responses and data protection

Department for Digital, Culture, Media & Sport Privacy Notice

Who is collecting my data?

The Department for Digital, Culture, Media & Sport (DCMS) helps to drive growth, enrich lives and promote Britain abroad.

We protect and promote our cultural and artistic heritage and help businesses and communities to grow by investing in innovation and highlighting Britain as a fantastic place to visit. We help to give the UK a unique advantage on the global stage, striving for economic success.

Purpose of this Privacy Notice

This notice is provided within the context of the changes required by the Article 13 & 14 of UK General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA). This notice sets out how we will use your personal data as part of our legal obligations with regard to Data Protection.

DCMS’s personal information charter explains how we deal with your information. It also explains how you can ask to view, change or remove your information from our records.

What is personal data?

Personal data is any information relating to an identified or identifiable natural living person, otherwise known as a ‘data subject’. A data subject is someone who can be recognised, directly or indirectly, by information such as a name, an identification number, location data, an online identifier, or data relating to their physical, physiological, genetic, mental, economic, cultural, or social identity. These types of identifying information are known as ‘personal data’. Data protection law applies to the processing of personal data, including its collection, use and storage.

What personal data do we collect?

We will process the names and email addresses provided by respondents who respond to the consultation by email. We will also process the information that all respondents provide in relation to your age, ethnic origin and region of residence, as well as details on any organisation you are responding on behalf of. We will also process your views on the proposed changes contained in the consultation, which may, of course, include commercially sensitive data. When the consultation ends, we will publish a summary of the key points raised on the Department’s website.

This may include a list of the organisations that responded, but not any individual’s personal name, address or other contact details. All responses and personal data will be processed in compliance with the Data Protection Act 2018 and the General Data Protection Regulation.

If you want some or all of the information you provide to be treated as confidential or commercially sensitive, it would be helpful if you could clearly identify the relevant information and explain why you consider it confidential or commercially sensitive. Please note that DCMS may be required by law to publish or disclose information provided in response to this consultation in accordance with the access to information regimes: primarily the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Data Protection Act 2018 and the General Data Protection Regulation. If we receive any request to disclose this information, we will take full account of your explanation, but cannot give you an absolute assurance that disclosure will not be made in any particular case. We will not regard an automatic disclaimer generated by your IT system as a relevant request for these purposes.

Once you have submitted your response to the consultation you will not be able to withdraw your answers from the analysis stage. However, under the Data Protection Act 2018 (and the General Data Protection Regulation), you have certain rights to access your personal data and have it corrected or erased (in certain circumstances), and you can withdraw your consent to us processing your personal data at any time. How will we use your data?

We use personal information for a wide range of purposes, to enable us to carry out our functions as a government department. This includes:

Your personal data is being collected as an essential part of the consultation process, including for statistical purposes.

What is the legal basis for processing my data?

To process this personal data, our legal reason for collecting or processing this data is: Article 6(1) e. it is necessary to perform a public task (to carry out a public function or exercise powers set out in law, or to perform a specific task in the public interest that is set out in law). The lawful basis that we rely on to process your personal data will determine which of the following rights are available to you. Much of the processing we do in DCMS will be necessary to meet our legal obligations or to perform a public task. If we hold personal data about you in different parts of DCMS for different purposes, then the legal basis we rely on in each case may not be the same.

What will happen if I do not provide this data?

You are not required to provide personal data.

Who will your data be shared with?

No personal data will be shared.

We will let you know if we are going to share your personal data with other organisations - and whether you can say no. You can ask us for details of agreements we have with other organisations for sharing your information.

How long will my data be held for?

We will only retain your personal data for 2 years in line with the purposes set out in this document.

Will my data be used for automated decision making or profiling?

We will not use your data for any automated decision making.

What are your data protection rights?

You have rights over your personal data under the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018). The Information Commissioner’s Office (ICO) is the supervisory authority for data protection legislation, and maintains a full explanation of these rights on their website. DCMS will ensure that we uphold your rights when processing your personal data.

How will Qualtrics store my data?

Qualtrics is the online survey platform used to conduct this survey. Their privacy policy can be found here: [https://www.qualtrics.com/privacy-statement/]{.ul}

How do I complain?

VoD Consultation
TV & Broadcasting Team
DCMS
100 Parliament Street
London
SW1A 2BQ

Email: vodconsultation@dcms.gov.uk

The contact details for the data controller’s Data Protection Officer (DPO) are:

Data Protection Officer
DCMS
100 Parliament Street
London
SW1A 2BQ

Email: DCMSdataprotection@dcms.gov.uk

1. The UK’s Audiovisual Media Services Regulations 2020 transposed the EU’s revised Audiovisual Media Services Directive 2018. Following the UK’s departure from the EU, the government is continuing to consider how to ensure that the UK Regulations are in line with UK obligations under the EU (Withdrawal) Act and wider domestic law. This may require further amendments to be made to the law. ↩

2. ‘links to UK’ means the service has a significant number of users in the UK, or the UK is its target market, or the service can be used in the UK by individuals and there are reasonable grounds to believe that there is a material risk of significant harm to individuals in the UK. ↩

3. Section 3 of Ofcom’s Further Statement on ODPS accessibility published July 2021 ↩

4. TV broadcasters under the jurisdiction of a country who is a signatory to the European Convention on Transfrontier Television can use the licence/authorisation from that country. ↩

5. Ofcom consulted on The Future of Media Plurality in the UK between 15 June 2021 and 10 August 2021. This includes advising on changes to Disqualified Persons Restrictions. ↩

6. This implements the requirements relating to on-demand programme services imposed by the AVMS Directive and the subsequent amendments made to it by Directive 2018/1808/EU. As set out in footnote 3, following the UK’s departure from the EU, the government is considering how to ensure that UK regulations are in line with our obligations under the Withdrawal Act and wider domestic law. This may require further amendments to be made to regulation. ↩

7. Following the implementation of the AVMS Directive, UK legislation currently references the Charter of EU Fundamental Rights. It is the government’s intention to replace the EU definition in the Communications Act 2003 with a UK specific measure over the coming months. ↩

8. A list of UK regulated VoD providers and how to contact them is available on Ofcom’s website. ↩

9. Sections 3(1)(a) and (b), (2)(e) and (f) and (4)(b)(g)(h)(j)(k) and (l), 319, 320, 321, 325, 326 and Schedule 11A of the 2003 Act and sections 107(1) of the 1996 Act. ↩

10. Under the Video Recordings Act 1984 ↩