Part 4: On-demand programme services Section 368HG Tier 1 standards code: special impartiality requirements
Section 368HG provides further detail on the due impartiality objective included in 368HF above. Subsection (1) defines the special impartiality requirements. This mirrors the current provision in place for broadcasters, including impartiality requirements on matters of political or industrial controversy and matters relating to public policy. However, section 368HG is slightly different from the pre-existing provisions for broadcasters to ensure better functionality in an on-demand environment. Section 368HG therefore does not include the pre-existing provision for broadcasters that OFCOM must take into account the need to ensure due impartiality in relation to matters of ‘major’ political or industrial controversy and ‘major’ matters relating to current public policy.
	OFCOM define these ‘major’ matters in more detail in the Broadcasting Code, which states that such matters will vary according to events but are generally matters of political or industrial controversy or matters of current public policy which are of national, and often international, importance, or are of similar significance within a smaller broadcast area. This additional regulatory layer is of particular importance in the linear broadcasting context where broadcasters will often provide live coverage of rapidly developing, often unexpected major events. The highly temporal nature of the major matters concept means that it is likely to have little relevance in the video-on-demand context, which is not generally reactive to live and rapidly developing events.
	Subsection (2) clarifies that the due impartiality provision under section 368HG(1) does not exclude the expression of views or opinions by Tier 1 services relating to the provision of on-demand services or non-UK on demand services themselves.
	Subsection (3) outlines that OFCOM’s Video-on-demand Code must consider the requirement to preserve due impartiality, and that this should include guidance on the ways in which this can be met by service providers. The wording of this section also differs slightly from the pre-existing legislation for broadcast television. Under broadcasting legislation, the corresponding requirement sets out that the preservation of due impartiality may be satisfied in relation to a series of programmes taken as a whole. The concept of ‘a series of programmes taken as a whole’ is defined within the Broadcasting Code, and includes for example, that a series of programmes must be scheduled ‘within an appropriate period’.
	These aspects do not translate well to the video-on-demand context where these scheduling and temporal considerations do not exist. The language of subsection (3) excludes reference to ‘a series of programmes taken as a whole’ to provide scope for OFCOM guidance to set out how the due impartiality requirements may be achieved beyond an individual programme, in ways better suited to the nature of their services.