Since the Communications Act of 2003 no body has had responsibility for regulating the content of non-BBC on-demand television services. The BBC Trust regulates that which is produced by the BBC.
On demand services which allow viewers to re-view television on set top boxes or computers have become extremely popular as the number of households which have the broadband internet access required to use the services has increased.
The Government has published a consultation document on how it should regulate on demand services and product placement within programmes. The document said that a regulatory vacuum has existed since the 2003 law was passed.
"Since then neither Ofcom nor any other agency has had a statutory responsibility for content standards in on-demand services provided by [non-BBC] providers," it said.
The Government's consultation paper said that this would need to change if the UK was going to comply with the recently-passed Audio Visual Media Services (AVMS) EU Directive.
"In relation to on-demand services, however, a new regulatory structure will be required in the UK in order to implement the AVMS Directive and oversee the new content and advertising standards," it said.
The Government said that it wanted to introduce a system where the industry regulates itself, but with rules which would be enforced by the Government in the event of insufficient self regulation.
"The Government’s strong preference – supported by the Directive - is for a system of co-regulation," it said. "This would allow the UK video-on-demand industry itself to take the lead in setting and enforcing standards for the content of its services. There would need to be legislation which allowed either the Government or Ofcom, as the national regulator, to intervene – but only if strictly necessary, and as a last resort."
"For the most part, the scheme would be expected to operate independently, with little if any intervention by Government or Ofcom. If it could not do so, it would have failed and would have to be replaced," it said.
"We need to ensure that traditional protections against inappropriate content and advertising standards are secured as technology advances," said Culture Secretary Andy Burnham. "While citizens embrace the opportunities offered by massively increased choice of content, and can watch on demand on TVs, online or phones, it's right that the same standards apply."
The Government is also consulting on whether or not to relax the rules on product placement, which is the paid inclusion of featured products in programmes. Currently in the UK paid inclusion of products is only possible in adverts or in sponsorship slots between advertising breaks.
Burnham said that while he would hear broadcasters' arguments to the contrary, he did not currently believe that product placement should be allowed in the UK.
"My instincts remain that if we were to relax the ban on product placement we would put at risk the integrity in British programming that underpins its international reputation," he said. "But I'm open to hearing other views. If, as some in the industry are saying, this is a crucial step for broadcasters, then the industry must marshal strong arguments and put forward a convincing case.
The AVMS Directive has been controversial because of fears that it sought to regulate amateur websites containing audio or visual content, but it was made clear that it applied only to services run on the kind of scale that broadcasters operate.
It has allowed countries to permit product placement, but only on a limited scale and not in news and current affairs, children's and advice programmes or documentaries.
The Directive must be implemented into national law by 19 December 2009. The consultation is open until 31 October.
