ATVOD Watch

The Sun has won its appeal against the Authority for Television on Demand (ATVOD) who claimed that newspaper's video clips section was TV-like. Being TV-like forces websites to register with ATVOD's very expensive Video on Demand censorship regime.

Ofcom deliberated on the appeal and ruled in favor of The Sun newspaper. The decision is wide-ranging and it will apply to video on other newspaper sites.

The Ofcom decision was based on the fact that the Sun publishes more content than just video on its website: Too much focus was placed on the 'Sun Video' section of The Sun's website, it noted in that decision.

Essentially, Ofcom said that only sites whose primary purpose is to show the kind of video that one would find on regular television should be subject to ATVOD's regulations.

This should come as some relief to magazine and newspaper publishers in the UK. This will save newspapers high fees, perhaps up to £ 20,000 depending on turnover and the number of service.

Update: ATVOD responds to Ofcom decision

26th December 2011. From  atvod.co.uk

ATVOD has acted promptly following a decision by Ofcom today to uphold an appeal by News Group Newspapers Ltd. against a determination by ATVOD that The Sun's website included a video on demand service which fell within the video on demand regulator's remit. Given the similarities between The Sun case and other newspaper and magazine websites, ATVOD has today announced that it will withdraw its Determinations that The Sunday Times Video Library, Telegraph TV, The Independent Video, FT Video, Guardian Video, Guardian You Tube, News of the World TV and Elle TV were On-Demand Programme Services.

ATVOD had held that The Sun's internet video offering met the definition of an On-Demand Programme Service, set out in the Communications Act 2003. The Ofcom decision is that the Sun Video section of the website (previously styled as Sun TV') is not subject to regulation by ATVOD.

The appeal judgement is the third made by Ofcom this year, the communications regulator having previously backed ATVOD's rulings that adult websites Demand Adult and Climax 3 fell within the scope of the new rules which include a requirement that children are protected from material which might seriously impair their development.

ATVOD Chief Executive, Pete Johnson, said:

Most people will recognise that defining the scope of new regulations in a fast-moving market is a complex and difficult task. The appeal system is a vital part of the process, giving users and providers of video on demand services greater clarity over where the new protections for consumers do and do not apply. Given the clear similarities between The Sun and the other newspaper and magazine websites under appeal, we have moved quickly to confirm that the Determinations in relation to those services are being withdrawn with immediate effect.

We will now reflect further on the appeal judgement and consider any implications it may have for any other past and future rulings on whether a service falls within ATVOD's remit.

The Retired Life TV has just been closed down.

The operator of the site, online video pioneer Chris Gosling, says that the Government Video On Demand Regulator ATVOD is too difficult to work with for him to wish to continue.

My main intention with Retired Life was to operate a video site which would help retired people make choices, improve their lives and have fun. It was something which I thought would make an interesting retirement project for myself, and a potentially worthwhile resource for older people, I also thought that, like other projects I've been responsible for, it might make a worthwhile small-scale TV programme for satellite or internet broadcast.

After a three month trial period, I was quite willing to continue it as a personal project even if it didn't generate any income, and cost money from my own pocket, but the immediate hostility I had from ATVOD makes me think that attempting to work with them would be a wasted effort. I don't need the stress of dealing with a Quango which seems to have a serious anti-small business and anti-enterprise standpoint.

ATVOD's main objective, Gosling says, is to be funded by major broadcasters and to work closely with them:

They are keen to work with large organisations to whom a few thousand a year in licensing is petty cash -- but they seem only to want to pay lip-service to working with smaller operators. I, as a one-person enterprise whose total business turnover was less than one-third of the ATVOD chief executive's salary, only blipped on their radar because I believe we should fight to get the best deal for the UK's small business sector.

Gosling says that he believes that ATVOD will damage the UK's smallest TV operators and will inhibit the development of new online services and methods of working:

The world of communication, especially in TV and video, is changing rapidly, and I believe that high-cost, low-benefit regulation like that being imposed by ATVOD is inappropriate in the online arena. Law-of-the-land regulation, through advertising, libel, and other normal laws and regulation is sufficient to regulate this area, although I do believe that there should be a register of small video publishers to ensure that legal oversight can operate.

BBC Worldwide, Viacom and online broadcaster Channelflip have lodged appeals with Ofcom over ATVOD's overbroad definition that practically all online video is somehow 'TV-like'.

The video-on-demand censor claims the broadcasters are in breach of their rules for failing to register or pay an expensive censorship fee.

However, the broadcasters, along with publishers including News International, Guardian Media Group and Telegraph Media Group, have appealed to Ofcom, arguing that they should not have to pay.

Most of the appeals are about who should pay the fee, should it be the content providers eg Viacom or should it be the operating the Video on Demand service, eg Virgin Media.

BBC Worldwide are appealing that their BBC Food and Top Gear content distributed via YouTube is not 'TV-like'.

Channelflip founder Wil Harris, references he government's impossible promise to limit new red tape that is suffocating British business as he questioned: whether hamstringing an entrepreneurial provider of new media is the best way to ensure that we are on a level playing field with broadcasters .

The big companies mentioned above must be particularly pissed off that their massively expensive censorship fees will be mostly used to harangue a multitude of hardcore porn websites into demanding credit card details to verify readers' ages.

The Authority for Television On Demand is a supposedly independent co-regulator for the editorial content of UK video on demand services. However the government seems to be in the driving seat when it comes to restricting access to porn.

ATVOD is not formally subject to Freedom of Information law, but is listed on WhatDoTheyKnow.com due to its public regulatory role.

This site assists in the process of making Freedom of Information requests to ATVOD and others.

Make a new Freedom of Information request to The Authority for Television On Demand Freedom of Information requests made using this site

Nobody has made any Freedom of Information requests to The Authority for Television On Demand using this site yet.

Background

This report concerns the protection of children from hard core pornography on UK- based video on demand services1 . The government is concerned that under the current UK legislation these protections may not be adequate.

On 1 April 2010, DCMS wrote to Ofcom about the new legislation for UK-based video on demand services (implementing European law), which for the first time impose certain minimum requirements on regulated UK-based video on demand services

In particular, the legislation introduces minimum requirements on the provision of potentially harmful material in VOD services. The relevant section of the Communications Act (368E(2)) states that:

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 .

DCMS raised concerns as to whether this provision would in practice provide sufficient safeguards to protect children from sexually explicit material, or whether greater safeguards might be appropriate for such material which is made available over VOD Services.

DCMS considered in its letter to Ofcom that a precautionary approach would be justified. This was because such an approach:

• would be generally supported by the public, given the nature of the material in question and the need to protect minors
• would be consistent with the tough constraints which Parliament has already placed on the distribution of sexually explicit material in hard copy form as a film or a DVD (i.e. material classified as R18 by the British Board of Film Classification
• would also be consistent with the approach Ofcom has taken on the provision of this material on television under its Broadcasting Code.
• In DCMS's view, there is plainly an argument for concluding that on-demand programme services, which are capable of being accessed by children and young people at home round the clock, require sufficient safeguards.

Evidence relating to harm

In light of the Government's clearly stated intentions, we commissioned research to inform our response to DCMS.

A review was commissioned from Dr Guy Cumberbatch, an independent expert in the effects of media, especially on young people.This looked at the available evidence on the risk of harm from R18 material. The review updates the review of the research literature in this area conducted for Ofcom by Dr Ellen Helsper of the London School of Economics ( LSE ) in 2005.

Guy Cumberbatch's main conclusions are consistent with the conclusions of the 2005 review. Firstly, that the research does not provide conclusive evidence that R18 material might seriously impair minors' development. Secondly, the research does not provide clear, conclusive evidence of a lesser degree of harm. It is acknowledged that the research is by its nature limited given there are significant ethical constraints about conducting experiments which expose children to this type of material and monitor their development for signs of potential harm.

However, some experts believe that there is evidence that exposure of minors to R18 material can have adverse effects. In short, this area remains highly controversial and in light of these considerations, it cannot be confidently concluded that sexually explicit material carries no risk of harm to the development of minors.

Guy Cumberbatch's report has been peer reviewed by Dr Sonia Livingstone of the LSE's Department of Media and Communications.

Conclusions and recommendations

In reaching a view in response to DCMS's request as to whether greater safeguards might be appropriate for the protection of children in this important and controversial area, Ofcom considered both R18 material and also material stronger than R18. It took account of the following important considerations.

In relation to R18 material, these considerations are:

• that the evidence for children being caused harm by exposure to R18 material is inconclusive and the research is necessarily limited by the ethical constraints of exposing children and young people to sexually explicit material
• Ofcom has a statutory duty under Section 3 of the Communications Act 2003 to further the interests of citizens and consumers and in doing so, to have regard to the vulnerability of children (and others whose circumstances appear to Ofcom to put them in need of special protection)
• that the public (including parents) consider that whilst those who wish to should have access to pornography, access to this material should be restricted in such a way that children cannot see it
• the range of approaches in Europe as regards implementing the might seriously impair obligation in the Directive, and the number of countries that have relied on other legislation (existing or new) to restrict access to sexually explicit material on VOD
• the lack of any test case under current UK law establishing whether R18 promotional material supplied over the internet is obscene (i.e. has a tendency to deprave and corrupt its likely audience), but noting also that according to the Crown Prosecution Service ( CPS ) (Legal Guidance to prosecutors) , it is possible that the publication of such material, provided it is sufficiently explicit and is freely accessible, is capable of being prosecuted as obscene and therefore a criminal offence under the Obscene Publications Act [Although it is noted later in the report that no such prosecution has ever actually been attempted].
• the desirability in the public interest of giving children appropriate protection from highly unsuitable material
• the absence in the current regulations of a clear standard requiring sexually explicit material of R18 standard (or its equivalent) to be prohibited, in VOD services, unless it is made subject to restrictions;
• the Government's clear intention to ensure protection of children from sexually explicit material on UK-based VOD services
• the value of adopting a precautionary approach to protecting minors from the risk of harm from accessing R18 material (and material stronger than R18) on UK- based VOD services. There is clear evidence that the public (and in particular parents) support a precautionary approach.

In relation to material stronger than R18 we had regard to the following considerations:

• content stronger than R18 material encompasses a wide variety of unclassified material which cannot legally be supplied in the UK in licensed sex shops and includes abusive and/or violent pornography, examples of which have been held to be obscene and a criminal offence to provide, if accessible by children
• this material is acknowledged to be potentially harmful or very harmful to adults, particularly those who are vulnerable
• yet the current legislation does not clearly prohibit it from VOD Services.

In summary, Ofcom's opinion is that taking into account:

• all the considerations set out in this report, including the evidence relating to harm
• DCMS's clearly stated intention to ensure the protection of children
• the desire for certainty in this important and controversial area
• the legislative protections currently in place are not sufficiently clear to provide that certainty. Greater safeguards should therefore be put in place.

We recommend the Government introduce new legislation which would specifically:

• prohibit R18 material from being included in UK-based VOD services unless appropriate mandatory restrictions are in place
• prohibit altogether from UK-based VOD services material whose content the BBFC would refuse to classify i.e. material stronger than R18.

 Ed Vaizey wrote to Ed Richards of Ofcom on the subject of restricting hardcore Video on Demand:

SEXUALLY EXPLICIT MATERIAL AND VIDEO ON DEMAND SERVICES

Ofcom produced a report on this last autumn and our officials have subsequently discussed the best way forward in the light of the recommendations of the Ofcom report, the policy position taken by ATVOD to require access controls to any such material and Government policy generally on access to potentially harmful material, including work in UKCCIS and the current Communications Review.

Like you, we are quite clear that children should not have access to hard-core pornography on ATVOD-regulated video-on-demand services. The current rules put in place by ATVOD requiring access controls on such material should remain in place.

As ATVOD regulates only a comparatively small number of services available over the Internet, our wider approach to protecting children from potentially harmful material is being taken forward by the UK Council for Child Internet Safety (UKCCIS), building on the commitments made in our industry round-tables. We are committed to making progress in this area, preferably through industry action, but if necessary through legislation. Any necessary legislation is best taken forward in the forthcoming Communications Bill.

Your report examined the current UK regulations, transposing the requirement in the Audiovisual Media Services Directive that VOD material which might seriously impair the physical, mental or moral development of minors [is] only made available in such a way that ensures that minors will not normally hear or see [it] (which means in effect that this content must generally be encrypted). Department for Culture, Media and Sport

What concerned us was whether that requirement would provide sufficient safeguards to protect children from material equivalent to that classified by the BBFC at R18 and suitable for sale on DVD only in licensed sex shops. Our policy aim was that such material should not be made available in ways accessible to children on those UK-based VOD services which fell to be regulated under the Audiovisual Media Services Directive.

The Ofcom report concluded that this was an area in which it was probably impossible to get conclusive evidence of harm and that it was Ofcom's view that, in the absence of such evidence, there was a case for taking a precautionary approach and indeed seeking a legislative opportunity to provide a more certain legal basis for requiring access controls to protect children.

In the meantime, of course, ATVOD's rules have continued to require access controls to prevent children's access to R18 material on regulated sites – as we understand it, this generally at present takes the form of short video sequences promoting hard- core pornography sites which can be accessed in full only after supplying credit card details.

The Ofcom review considered two main areas of content. The principal one, and the one on which the Department had sought your advice in particular, was the availability of hard-core pornography with content equivalent to that which would be classified by the BBFC as suitable to the R18 category in DVD format. However, the report noted that there may also be material for which the BBFC would refuse a classification but which would not necessarily be illegal to distribute to adults.

All such material is prohibited by Ofcom on licensed broadcasting services and is allowed on VOD services regulated by ATVOD only when access controls are in place to prevent access by children. Outside the small number of regulated services, such material is known to be widely available on the Internet and that is why Ministers have given priority to working with ISPs to allow parents to make an active choice as to whether they want such material to be available to their household. The wider application of this policy by ISPs, and the use of effective parental controls by parents, would do much to minimise the accessibility of hard-core pornography, and worse, by children on all on-demand services.

The questions addressed by the Ofcom report were therefore whether, on the small number of on-demand services regulated by ATVOD, where additional controls could be put in place under the AVMS Directive, the Regulations provided an adequate level of protection for children from material equivalent to R18 by offering a secure legal basis on which to require access controls. Department for Culture, Media and Sport

We remain of the view - like you - that there is a good case that the Regulations require a precautionary approach in that the test is whether material might be seriously harmful rather than that it necessarily is demonstrably harmful. However we accept that, in the light of Ofcom's recommendation, it would be preferable to provide legal certainty to ensure that the ATVOD rules are robust, in case of future legal challenge, and the protection for children secure.

In these circumstances, and given the wider policy context, it seems to us that these issues would be best addressed comprehensively in the Communications Review. We would appreciate it if Ofcom, with ATVOD, would take any steps necessary in the interim period to ensure that children remained adequately protected under the ATVOD rules, in the knowledge that we could bring forward Regulations in the short term if it proved necessary to support this position.

Election Promise: A Conservative government will introduce a powerful new Star Chamber cabinet committee, to be chaired by Ken Clarke, which will enforce a stringent One In – One Out requirement where any new law must include cuts in old laws.	.
New law in: Repressive new website registration law driving much of the UK internet business offshore	Old Law out: Shops will be allowed to sell liquor chocolates without an alcohol licence.

ATVOD have announced a long list of websites that are under investigation for not registering with them, and of course, not paying their burdensome registration fee required to keep the red tape administrators in business.

ATVOD explained that the Website Registration Act requires that nearly all websites incorporating video need to notify ATVOD by 30 April 2010.

By the end of April 2010 it was apparent to ATVOD that a significant number of websites had not registered.

ATVOD therefore began an investigation process in order to ensure that such services were identified, were informed of their obligations, and were given an opportunity to notify or to make representations on the issue.

See  the long List of Websites under Investigation [pdf]

 Repressive controls to prevent children from accessing hard-core pornographic material through video-on-demand (VoD) services will be secured as part of the comprehensive review of communications legislation currently being undertaken, Communications Minister Ed Vaizey has announced.

Rules are already in place which mean that video which the BBFC would classify as R18, pornography which is explicit and sold in licensed sex shops, but not illegal, can be made available through VoD services only if excessively restrictive controls are in place to prevent children from accessing it.

The Authority for Television On Demand (ATVOD) is the internet censor for VoD services and enforces rukles which ensure that any material which 'may' seriously impair children's physical, mental or moral development, but probably doesn't must not be freely available. Access controls such as pin protection must be put in place if R18-type content is to be made available on anytime television services or internet websites that include video.

But, in the light of an Ofcom report which recommended a precautionary approach to protecting children and new legislation, the Government has committed to securing the present controls and looking at whether the legal position should be bolstered further by future-proofing legislation as part of the current review of communications policy.

Vaizey said:

The Government is clear that children must be protected from harmful content, on television or online. We have made it a priority to address the concerns of parents that their kids are being exposed to material that's not appropriate for them to see.

Without a doubt we want to make sure that video-on-demand services carrying adult material cannot be seen by children and it's already a legal requirement that any such content has access controls.

But the communications review gives us an opportunity to consider whether there's more we should do to ensure children remain protected and to limit access to potentially harmful material, such as introducing unclassified material into the statutory framework.

A starting point is Ofcom's report to Government, Sexually Explicit Material and Video On Demand Services which has just been published.

The review will look at the availability of both R18-type material, and video content which is stronger than that classified as R18 by the British Board of Film Classification (BBFC) but still might be made available to adults.

Ensuring the effectiveness of restrictive controls on VoD services will also complement the recommendations made by Reg Bailey in his independent review of the commercialisation and sexualisation of childhood, Letting Children Be Children.

Government minister Jeremy Hunt wrote an open letter of 16 May 2011 on 'A Communications Review for the Digital Age'. This included the question:

Q13. Where has self- and co-regulation worked successfully and what can be learnt from specific approaches? Where specific approaches haven't worked, how can the framework of content regulation be made sufficiently coherent and not create barriers to growth, but at the same time protect citizens and enable consumer confidence?

Ruth Evans replied as chair of ATVOD:

As you would expect, the answer we are in a particularly good position to answer concerns models of self and co-regulation in the content arena:

...

Co- and self-regulation are particularly appropriate in rapidly developing sectors where the nature of services and the scope of potential consumer protection is subject to frequent change. Our experience is that co-regulation of video on demand services has proved capable of yielding nimble, economical solutions and the promise of establishing a broad consensus around light touch regulation. In our short life we have worked through some complex issues with the industry (e.g. the scope of the Regulations and determining where to draw the line on the protection of children from harmful content) in an efficient manner and have delivered more equitable funding arrangements for our second year, with concessionary rates for small scale providers and new market entrants.

We have taken a definitive stance on what video material might seriously harm children (and therefore an ODPS must make provisions so that children cannot access the material) and we suggest that in the area of child protection online some rules might benefit from greater clarity and certainty, building on the guidance we have determined.

The UK must not lose sight of the fact that the global nature of services accessible via the internet presents special challenges in respect of editorial regulation of VOD services. We are unable to regulate services sitting outside the UK which are accessible to UK internet users. We suggest that a combination of action in respect of services which are subject to ATVOD regulation and action by other internet intermediaries in support of parents will be necessary going forward. Action such as promoting use of filtering tools and greater awareness of the risks and protections that exist online will be important and complimentary to pure regulatory activity. Consideration should also be given by Government to what can done to harmonise actions on an international level in this regard.

What ATVOD really means is that it has invented a very expensive censorial regime for practically every website with video based in the UK, and for no benefit to them whatsoever. ATVOD has also imposed an almost impenetrable barrier to trade on all British adult sites that include hardcore video.

An interesting comment from  lawdit.co.uk suggesting that ATVOD will trawl the website looking for contributors to its very hungry funding money pit:

I understand from a very good source that every adult website in the UK will be contacted over the next 12 months and asked to comment on whether or not it ought to be registered and if not why not. It is going to be difficult for many providers to argue that it ought not be registered and many adult websites will find themselves looking abroad as they ship their business affairs overseas.

It sounds a pretty tall order to try and track down all British adult websites though. It is not often obvious from the website who is behind it, nor their location.

Newspaper and magazine publishers face paying thousands of pounds in fees if they continue using video content on their websites, industry groups have warned.

ATVOD has ruled that short video clips on publishers' websites provide a TV-like service.

This means publishers must register with ATVOD and pay an annual fee - a ruling strongly opposed by the Professional Publishers Association (PPA) and the Newspaper Society. While last year's annual fee was £ 2,900, the PPA claims that, depending on company turnover, that figure could rise to as much as £ 25,000.

PPA chief executive Barry McIlheney said: Essentially the disproportionate regulatory fees being charged by ATVOD are damaging innovative digital businesses and putting them at a disadvantage compared to their European counterparts.

A number of publications - including The Sun, News of the World, The Sunday Times and Elle magazine - are appealing the decision, after ATVOD ruled they were in breach of the Communications Act 2003 by failing to notify the watchdog they were operating video on demand services.

The Newspaper Society's political, editorial and regulatory affairs director Santha Rasaiah argues that under the EU's Audiovisual Media Services Directive, newspapers and magazines should be expressly excluded from the regulation.

Ofcom, the TV censor, could be handed responsibility for looking after the best interests of businesses as well as the interests of [a few whingeing] consumers, under a radical shake-up of the quango.

Ed Vaizey believes the Communications Act does not adequately take account of the amount of regulation that controls both the telecoms and broadcasting industries Photo: John Taylor

Vaizey, the Minister for Culture, Communications and the Creative Industries, told MPs that his department is considering changing Ofcom's remit as part of a review of the Communications Act. He said: One of the issues that we will come up against is whether Ofcom should have a duty towards business as well as towards consumers. I am not saying I have a view on it but it is a legitimate question that we will consider.

ATVOD have wisely decided against their first year £2900 fixed fee approach and replaced it with a graduated fee dependent on company revenue and the number of services run by that company.

The year 2 annual fees in £ are:

• non commercial: 100 + 100 for additional services
• commercial, revenue < 50k: 150 + 150 for additional services
• commercial, revenue < 100k: 200 + 200 for additional services
• commercial, revenue < 6.5m: 800 + 400 for additional services, max 25k
• commercial, revenue < 25.9m: 5175 + 800 for additional services, max 25k
• commercial, revenue > 25.9m: 10350 + 800 for additional services, max 25k

The Adult Industry Trade Association (AITA) recently organised an open meeting with Pete Johnson of ATVOD.

Pete Johnson (ex BBFC) has been charged to head ATVOD, an organisation sanctioned by OFCOM under an EU directive to collect fees from all websites that fit the video on demand criteria under law.

They provide no service to the website owner whatsoever, but imposed a charge of £ 2900 per site in 2010 (currently consulting about a variable charge related to turnover for 2011).

Practically every website with video gets caught up in the censorial rules, except for user content websites along the lines of YouTube. Perhaps only Google are big enough to have the political clout to avoid the censorship.

The EU law underpinning the censorship requirement is supposed to be 'light touch'. It only really bans hate material, has restrictions on sponsorship/product placement and requires child protection from material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, such material must be made available in a manner which secures that such persons will not normally see or hear it.

But of course it is this last requirement that has been used to stitch up the UK adult trade.

In a very illuminating talk (available at the above link), Pete Johnson outlines some of the extremes of child protection to be enforced by ATVOD (although Johnson alludes to the overly strict interpretation of the law being down to the British Government, rather than ATVOD).

Onerous Age Verification requirements

In essence, the powers to be have decided that all hardcore content has be locked off in sections of websites where age verification is in place. Although over mechanisms may appear over the coming years, the only currently acceptable method seems to require a credit card payment before allowing access.

Even debit card payments are unacceptable, as such cards are sometimes held by under 18's.

No hardcore video may be made available on free preview areas of adult websites. Perhaps the only hope of convincing prospective customers that a website will deliver the goods, is that, hardcore photos are not covered by this law and are therefore allowed without age verification (assuming that they are not considered legally obscene).

And in a truely bizarre piece of reasoning, all 18 rated video, be it torture horror, or  softcore porn, can be shown without such mandatory age verification. So a graphic castration is acceptable whereas as a blow job isn't.

Surely its going to be very limiting to be able to sell only to credit card holders, and even more limiting to only be able to promote to people who are willing to type in the arduous details required for credit card transactions, just for a look-see. Surely the trust issue will also deter customers who would like to see an extensive and fully operational website as evidence of being trust worthy as opposed to a fly-by-night rip off.

Also the UK adult business suffers from a lot of softcore on satellite and cable (and historically from sex shops) pushed by companies desperately trying to suggest that their material is hardcore, when in fact, it is nothing of the kind. (I for one am still bitter from being ripped off by sex shops from 20 years ago). It must be very important for British companies to be able to convince prospective customers that they are selling pukka hardcore before they hand over their cash.

It hardly seems a very fair trading environment for Britain. Foreign competitors can incorporate free hardcore material for promotional purposes, and thereafter accept payments via any method. Suddenly the porn tubes suddenly got a whole lot more threatening.

Rules for UK Eyes Only?

Pete Johnson was very keen to present these new censorial rules as a fait accompli. He glossed over any debate or explanation as to whether hardcore porn can actually seriously impair the moral development of under 18s. Surely it is debatable that the sight of such a fundamentally normal activity of life can do so much damage. The same issue was debated in court at the time of the legalisation of R18 videos and DVDs and no such serious impairment was proven to the judge.

In fact there seems to have been a change of view amongst UK censors. The BBFC wrote about this same topic in 2010 (in their Annual Report of 2009 [pdf] ):

The duty to enforce the new rules lies with Ofcom who, in relation to 'editorial content', intend to delegate most of those powers to the Association for Television On Demand (ATVOD). Both Ofcom and ATVOD have made clear that, in their view, content which has been classified by the BBFC in any category, including 'R18', would not be considered likely to seriously impair those under 18, and therefore does not need to be placed behind access controls.

Perhaps ATVOD's newly censorial interpretation of the European directive may also rattle a few cages in the rest of Europe. Hardcore films are broadcast there on encrypted subscription TV as part of standard general film channels such as Canal Plus. Indeed Netherlands TV has shown hardcore films on unencrypted broadcast TV. It would be interesting to see if these countries would appreciate being told by Britain that they are seriously impairing the moral development of their youngsters.

Perhaps the British video on demand trade should debate some of these issues before kowtowing to the censorial interpretation being pedaled by ATVOD.

Playboy TV's appeal to the TV censor Ofcom has been rejected. Playboy had asked that their video on demand servces be declared outside of the remit of the Authority for Television On Demand ( ATVOD ), the video on demand censor.

The two hardcore adult video-on-demand websites operated by Playboy TV UK Ltd (Demand Adult and Climax 3) are therefore subject to new statutory rules enforced by ATVOD for on demand programme services and the explicit sex videos available on the websites must be kept behind access controls which ensure that children do not normally see them.

The new rules do not apply if videos are not TV-like . Playboy TV had argued that because the video content on Demand Adult and Climax 3 features fully explicit sexual images, and was therefore too explicit to be broadcast on UK television, it was not TV-like and was not therefore subject to the new ATVOD rules.

The appeals rested on whether the form and content of the hardcore sex videos made available on the websites should be considered comparable to the form and content of programmes normally included in television programme services , a key test under the new statutory regime. Playboy TV argued, in essence, that the videos were too explicit to be regulated.

In determinations made on 24 Sept 2010 (Demand Adult) and 21 Dec 2010 (Climax 3), ATVOD had ruled that, while more explicit than adult programmes shown on UK TV services, the videos were nevertheless comparable to such programmes and were essentially the same as adult programmes which are frequently broadcast on linear TV channels in other EU jurisdictions, and were therefore subject to rules designed to protect children.

Playboy TV appealed against the ATVOD determinations, but the appeals have today been rejected by Ofcom.

Commenting on the decision, ATVOD Chair Ruth Evans said:

The idea that a video on demand service should escape regulation on the grounds that its content was too extreme would make a mockery of the whole purpose of regulation in this area which, in large part, is designed to protect children from exposure to video content which poses a risk of serious harm.

ATVOD Chief Executive Pete Johnson added:

These are the first appeals heard by Ofcom under the new arrangements for the regulation of video-on-demand services in the UK and the decisions establish an important point of principle. UK websites offering 'hardcore' adult video-on-demand content cannot sidestep the new statutory rules by claiming that the content is, in effect, too explicit to be regulated. Instead they must ensure that such content is provided in a manner which ensures that children do not normally see or hear it.

Newspaper and magazine trade organisations are speaking out in opposition to the UK's new VOD ATVOD. Several individual newspaper and magazine publishers are already protesting being included under ATVOD's oversight and having to pay through the nose for the privilege.

The Newspaper Society's director for policy, editorial and regulatory affairs, Santha Rasaiah, told paidContent:UK:

Electronic versions of newspapers and magazines are expressly excluded from the scope of the AVMS directive. Throughout negotiations on the directive and its implementation into UK law, assurances were repeatedly given, including during the course of Parliamentary debate, that publishers' current online activities, including video clips, would not be caught by the new legislation and did not satisfy the definition of 'TV-like' programme services for regulation by ATVOD. These recent determinations by ATVOD are therefore surprising and of concern to the industry. It is important that press freedom is not curbed by unintended regulatory creep.

See  article from  mediaweek.co.uk

The magazine business' Periodical Publishers Association, working with the Association of Online Publishers, complains that

Atvod has determined that short video clips, collected together on a section of a publisher’s website, fall under the definition of "TV-like" services, as set out in the Audiovisual Media Services Regulations (AVMS).

The PPA argues, however, that video clips on publishers’ websites are not TV-like and therefore do not fall within Atvod’s remit. It is in the process of appealing to media regulator Ofcom.

Barry McIlheney, chief executive of the PPA, said: Essentially, the disproportionate regulatory fees being charged by Atvod are damaging innovative digital businesses and putting them at a disadvantage compared to their European counterparts.

According to the PPA, ATVOD fees can rise to £ 25.000 whereas the next-highest equivalent fee in Europe is (EUR712) per company.

Broadcast website says that Founder of Country Channel TV Paul Aitken is taking his complaints about VoD regulator the Association for Television on Demand (ATVOD) to prime minister David Cameron, as part of wider concerns about the UK's plans for online regulation.

Aithen will meet with Cameron to call for the abolition of ATVoD, which which has been responsible for registering and regulating online video content platforms and providers since March last year.

The article says that VoD producers are particularly concerned by the annual fee of £2,900 imposed by ATVoD on all notified UK providers. The charge is said to threaten small and innovative VoD providers to the benefit of bigger players in the market.

PM David Cameron has agreed to speak to Aitken on the issue, after he gives Country Channel TV an interview. Aitken plans to say that the industry was not properly consulted on the annual fee and that, with readily available internet firewalls and parental controls, the industry does not require regulation. [Perhaps a bit hopeful as European law has mandated VOD regulation].

This seems to highlight the dangers of consultations that only attract responses from interested parties. They seem to have set up a fee structure that keeps the big company's costs to a minimum whilst simultaneously creating a barrier of entry to small players.

Minutes from an ATVOD board meeting reveal:

Subject to receiving the relevant authorisation from the Secretary of State, the Board unanimously resolved to change ATVOD's name from The Association for Television On-Demand Limited to The Authority for Television On-Demand Limited .

The change of name shall take effect on the date the Secretary of State gives his authorisation for the name change.

smallscale.tv adds: It seems to say quite a lot about ATVOD’s self-image, according to comments coming from industry sources.

Independent TV producer Chris Gosling has launched a new online campaign aimed at fighting for fair censorship charges for small-scale web-TV operators.

Gosling, who produces specialist TV shows about caravanning and boating for satellite platforms, is specifically concerned about the Association for Television on Demand (ATVOD), a new body established to regulate video on-demand content.

ATVOD, which took over VOD regulation duties from Ofcom in March last year, has imposed a flat-rate fee of £2,900 (rising to £3850 for 2011) on the services of all notified VOD providers in the UK, from the small to the enormous like SeeSaw and Virgin Media.

Gosling has launched a new website, called SmallScale TV , aimed at representing the hundreds and thousands of people in Great Britain and Europe who make online video content in a professional, responsible way [in] a recreational or small business environment .

I see a future in which small producers like me can make highly specialist programmes to play online, showing to maybe just a few hundred or a few thousand viewers every week or month - but instituting regulator fees that may be in excess of such a programme's annual budget is going to kill small enterprises like these stone dead.

Surprise surprise, consulting the big guys results in a fee structure to stiff the small guys

Based on article from smallscale.tv

The above story about the campaign featured in the media section of well-respected TV website Digital Spy spurred an almost immediate response from ATVOD Director Peter Johnson, defending the new regime.

For the first time on record, Johnson confirmed that ATVOD is now charging a concessionary fee of £150 for the current year to a number of organisations, although we only know of one such. Our understanding is that this organisation is a charity, which we don't believe should be charged in any event.

Johnson also said that ATVOD is fully aware of the concerns of smaller enterprises that fall within scope of the flat rate fee set for the first year of the new arrangements, claiming that this is a fee set after a public consultation held jointly by ATVOD and Ofcom. [and no doubt all the big TV media companies contributed. They have a bit of vested interest in keeping their fees down whilst being able to use censorship to keep small competitors out of the market]

It was certainly the case that in September 2010, when this writer had his first conversation with ATVOD's Peter Johnson, that no concessionary fee was available – or even available for discussion. During this and subsequent conversations, Johnson said that no smaller providers had come forward at the time of the original consultation, and that if his decision was that a service fell within scope, ATVOD would take any non-payer to court to force payment. ATVOD's currently online statement regarding concessionary fees on went online on 12th November 2010, apparently after extensive lobbying from a number of disgruntled parties.

But even the possibility of concessionary regulatory fees for small-scale video on demand doesn't hold out much hope for businesses considering developing online services.