ATVOD Watch

ATVOD has published determinations that two further adult services, operating across 74 websites, has breached its rules requiring UK video on demand providers to implement onerous and impractical age verification rules.

Videos featuring explicit images of real sex could be accessed by children on the internet services, in breach of ATVOD's rules.

The two online video on demand services were Extreme Movie Pass and UK Sirens .

The services each broke the rules in two ways. Firstly, they allowed any visitor free, unrestricted access to hardcore pornographic video promos/trailers or still images featuring real sex in explicit detail. Secondly, access to the full videos was open to any visitor who paid a fee. As the services accepted the most popular payment methods, such as debit cards, which can be used by a few under 18's, ATVOD held that each service had also failed to put in place effective access controls in relation to the full videos.

The operator of Extreme Movie Pass, the service spanning 73 websites, failed to become fully compliant in accordance with a timetable set by ATVOD. The service provider has therefore been referred to Ofcom for consideration of a sanction, a procedure which can lead to operators being fined or having their right to provide a service suspended.

But thankfully there is enough porn on the internet to last several lifetimes. It's just a shame that British companies are made to suffer to no effect on children's access to porn. Perhaps ATVOD could do something a bit more positive and ask banks to provide an over 18 check to debit card transactions.

Frankie and Friends was a British porn website offering both photo sets and videos to paying members.

ATVOD had targeted the site with view to making it pay expensive fees and to subject it to onerous and impractical age verification requirements.

In May 2013 ATVOD had informed the website it that it must sign up for Video on Demand censorship. But Frankie and Friends appealed the decision to the senior TV and internet censor, Ofcom. (Hardly seems much of an independent appeal process to appeal to the same censor that is in ultimate charge and who delegated the task to a junior censor).

Frankie and Friends based the appeal on the videos being shorter than typical TV programmes and pointing out that there were more photograph galleries than video galleries. [The Law requires that a website should have a primary purpose of being Video on Demand before being subjected to ATVOD censorship].

Ofcom have dismissed the relevance of short form videos several times now, noting that for instance, Television X, broadcasts plenty of short videos on a UK licensed linear TV service.

Ofcom dismissed the argument about photographs being the primary purpose:

Ofcom's overall view was that characteristics of the material available on the Appellant's website and the manner in which it was provided support the finding ATVOD made, that the site constituted a service a principal purpose of which was providing audiovisual material. Whilst the large volume of non-TV like material available demonstrated that the Service sought to make use of still images as well as video in providing its service, Ofcom nevertheless considered that the catalogue of a significant amount of audiovisual material available which did not require accompanying information to be fully appreciated did amount to a service the principal purpose of which was to provide an ODPS. The strong thematic connection between the two bodies of content on the site supports the conclusion that the website as a whole had a principal purpose of providing an ODPS in relation to adult content.

So Ofcom ruled that Frankie and Friends was in fact subject to ATVOD censorship.

And as ATVOD's onerous and impractical rules make it almost impossible to continue in business, the website is now closed.

On the 7th July 2014, the UK Government Department of Culture, Media, Sport and Censorship notified the European Commission of its draft regulation to incorporate ATVOD's impractical age verification rules for accessing hardcore porn on the internet into UK law.

The DCMS document states:

The Audiovisual Media Services Regulations 2014

Main Content

Part 4A of the Communications Act 2003 (inserted by the Audiovisual Media Services Regulations 2009 and 2010) transpose the requirements of Directive 2010/13/EU in relation to on-demand programme services. Section 368E(2) provides that on-demand material that might seriously impair the physical, mental or moral development of persons under the age of eighteen must only be made available in a manner which secures that such persons will not normally see or hear it. This draft instrument amends section 368E in two ways. First, it provides that any material that the British Board of Film Classification (BBFC) has issued a R18 classification certificate in respect of (or any material that would have been issued such a certificate) (hard-core pornography) must not be included in an on-demand service unless it is behind effective access controls which verify that the user is aged eighteen or over. Secondly, it provides that any material that the BBFC has refused to give a classification certificate in respect of (or any material that would have been refused such a certificate) must not be included in an on-demand service at all.

Brief Statement of Grounds

In 2010 the Department wrote to Ofcom raising concerns about whether section 368E would in practice provide sufficient safeguards to protect children from sexually explicit material. Ofcom's report in 2011 recommended that the Government introduce new legislation to prohibit R18 material from being included in on-demand services unless mandatory restrictions are in place and prohibit altogether material whose content the BBFC would refuse to classify. The co-regulators, Ofcom and the Authority for Television On Demand (ATVOD), were concerned that the evidence for children being caused harm by exposure to R18 material is inconclusive and the legislative protections currently in place were not sufficiently clear to provide certainty in this area. In the interim period pending legislative changes the co-regulators, adopting a precautionary approach, interpreted section 368E(2) as requiring R18 material to be behind access controls. This instrument has the effect of removing any uncertainty from the regulatory framework providing clarity to consumers and providers of on-demand services. It also provides the same level of protection that exists on the high street in relation to the sale of hard-copy DVDs to the provision of on-demand services. In a converging media world these provisions must be coherent. The BBFC classification regime established under the Video Recordings Act 1984 is a tried and tested system of what content is regarded as harmful for minors. This Act was notified as a technical standard - Notification No. 2009/495/UK.

Reference Documents

• References of the Basic Texts: Part 4A of the Communications Act 2003
• ATVOD Rules and Guidance and research report
• Video Recordings Act 1984
• BBFC Guidelines
• Ofcom Report: Sexually Explicit Material and Video On Demand Services, 2011
• Exploratory Memorandum

TBT aspect

No - The draft has no significant impact on international trade

Urban Chick Supremacy Cell (UCSC) is a BDSM themed website structured as a WordPress blog. It features blog articles many with either short hardcore videos and/or photosets. The videos are generally short averaging about 7 minutes. The site is commercial but at a low scale. Ofcom notes that UCSC has only 58 customers and generated a total revenue of $2,193 since mid-2011.

The Appeal

In January this year ATVOD claimed that the website was a Video on Demand website subject to its expensive and onerous censorship regime. But UCSC took advice from the campaign group Backlash and their friendly specialist lawyer and decided to appeal against the ATVOD determination.

TV censor Ofcom heard the appeal and decided that indeed UCSC did not fit the legal definition of service liable to ATVOD censorship and so overturned ATVOD's determination.

The determination of whether a website is liable to ATVOD censorship is based on vague and poorly worded European legislation which basically requires basic TV censorship rules to be applied to websites that compete with traditional highly censored linear TV.

The determination is both complex and vague but the key points in Ofcom's decision seem to be as follows.

Legals

The AVMS Directive is a European Directive amongst the purposes of which is to provide a measure of fair competition across Member States between those providing:

a. traditional (linear) television broadcasting services; and

b. on-demand services that are essentially the same, or sufficiently similar, and which compete for viewers and advertisers.

The key phrases from law is that a service is an on-demand programme service (ODPS) which is then liable to ATVOD censorship if:

Its principal purpose is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services.

Ofcom also note explanatory notes in the European directive named recitals. Recital 24 of the Directive which states that:

It is characteristic of on-demand audiovisual media services that they are 'television-like', i.e. that they compete for the same audience as television broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive.

Ofcom also noted references to competition in Recitals 21 and 24 and in particular, that regulation should not cover services:

Which are primarily non-economic and are not in competition with television broadcasting, such as... services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest. And that, It is characteristic of on-demand audiovisual media services that they... compete for the same audience as television broadcasts.

USCS Case

UCSC appealed that the content provided by the service was not comparable to the form and content of programmes normally included in television content. In support of this the Appellant said that the average duration of the 91 videos available on the site was seven minutes and 53 seconds.

The Appellant also referred to factors proposed in Ofcom's 2012 Essential Research Report for indicating whether an on-demand service is considered by its audience to be a reasonable substitute for linear TV. The Appellant gave the example of six factors (duration of content, look and feel of the service, who controls what is watched, effort expended to access the service, perceived quality of content and where the content originated) which it said indicated that UCSC was not a reasonable substitute for linear TV.

The Appellant also argued that, due to UCSC's limited customer base and turnover (58 paid customers and a turnover of $2,193 in approximately two years), the website could not be considered to be in competition with linear TV.

Ofcom decision

Ofcom agreed with ATVOD in that many aspects of the website did in fact fit the definition of an ODPS service liable to ATVOD censorship but also found a few aspects that did not fit the definition, and overall decided that the website did not fully meet the definition of an ODPS.

The issues in favour of UCSC not being an ODPS were:

That videos on the website were not of professional production values and many were presented just as clips:

There were no production credits of the type that were on the Playboy service (i.e. listing key production talent). Whilst not determinative, this can be a feature of material more likely to be viewed as comparable to programmes available on linear services.

The majority of the videos were not self-contained, nor episodes from wider series, but took the form of individual acts edited from longer single fetish sessions.

Ofcom noted various elements of the videos which were indicative that they had been made with a limited production budget. For example, the majority of videos available on the UCSC service were filmed in one location and many appeared unscripted and lacked any narrative conceit. In addition, audio had not been recorded using professional equipment, there was no music to accompany the scenes, the videos did not appear professionally lit and the content appeared to have been filmed using basic, consumer-grade cameras. The production values of the material presented on the UCSC Service were accordingly not closely comparable to professional content broadcast on linear services.

Ofcom also noted that the website was laid out as blog of posts in chronological order. There was no particular website navigation to pick out particular videos of interest:

Ofcom noted that the Service had been constructed using a blogging template and therefore could only be navigated in a traditional web-like manner. This rudimentary, non-TV like navigation was demonstrated by the members' homepage, which consisted of 20 chronologically presented posts, each with an attached photo gallery or individually embedded video. Consequently, Ofcom considered that a user viewing material on the UCSC Service would be unlikely to consider themselves to be watching a programme service competing with linear television programme services.

Ofcom concluded that UCSC was not an ODPS:

Ofcom considers that the form and content of audiovisual media material on the Service, provision of which is its principal purpose, is not comparable to the form and content of linear television programme services. The Service was not, therefore, an ODPS within the meaning if the Act.

The moral of the story seems to be that low production value videos, without a particular narrative structure, presented in a blog are not likely to be TV-like and be considered a competing option to traditional linear TV.

ATVOD Response

ATVOD responded to the Ofcom decision in a press release (along with a second case that went in ATVOD's favour)

Assessment of how tv-like an on-line adult services is lies at the heart of a second ruling published by Ofcom. Ofcom upheld an appeal by the provider of the website Urban Chick Supremacy Cell - which included audiovisual content featuring bondage, domination and sado-masochism - against an ATVOD determination in January 2014 that it was an on-demand programme service and therefore subject to regulation by ATVOD.

Ofcom concluded that the form and content of audiovisual media material on the Urban Chick Supremacy Cell site was not comparable to the form and content of linear television programme services. Therefore, the website did not meet the statutory definition of an On-Demand programme service and was outside of the remit of the statutory rules.

Commenting on the decision, ATVOD Chief Executive Pete Johnson said :

The two appeal decisions demonstrate that there is sometimes a fine line separating adult services which are subject to the statutory rules from those which are not. UK services which feature the most extreme material are not subject to the video on demand regulations -- which protect children from material which might cause them serious harm - unless they are considered 'tv-like'. Websites operated from outside the UK are also not subject to the ATVOD Rules.

ATVOD will continue to discuss with policy makers further options for reducing the exposure of children to pornography and other potentially harmful VOD material on websites based both inside and outside the UK. We strongly support initiatives designed to improve the take up of parental control software and have worked with the Department for Culture Media and Sport on the drafting of legislation which will prohibit on UK based, tv-like VOD services any material which would not be classified for sale on a DVD.

So how does UK's Video on Demand censor, ATVOD,  manage to evade accountability via Freedom of Information requests. Well maybe it can't, as revealed by the following letter to Ofcom.

Dear Office of Communications,

ATVOD has stated that it does not consider itself to be subject to the FOIA (Freedom of Information Act).

Section 3 FOIA includes a publicly-owned company as defined by section 6 . If ATVOD is a publicly-owned company as defined by section 6 it falls within the scope of section 3 and is therefore subject to FOIA.

Do you consider ATVOD to be a publicly-owned company as defined by section 6, bearing in mind, in this context, that the company (and therefore its directors and members) are bound by the designation and that ATVOD therefore appears to fall within the scope of s.6(2)(b)(ii) in that it is a company whose members are persons acting on behalf of that public authority or of companies wholly owned by that public authority ; that is OFCOM.

If ATVOD is bound to act in accordance with the determination and the determination is specified by OFCOM how can ATVOD, its members and directors (I understand that all directors are members - see the articles of association), not be persons acting on behalf of OFCOM?

Yours faithfully,
Graham Senior-Milne

Ofcom have acknowledged the letter and say they will answer within a month.

ATVOD has published brief minutes from its May 2014 board meeting. This includes a short report on what the government is up to in its plans to censor adult porn on the internet in the name of child protection.

ATVOD board meeting minutes report:

Public policy on R18 and unclassified material

An updating report was tabled and the Board DISCUSSED the issue at length.

The Board NOTED the current position on the initiative to reduce children's access to pornography online, with:

• the introduction of legislation for UK based services to keep adult material out of reach of children;

• the EU Commission encouraged to tighten up the AVMS Directive to have age verification measures for European based adult services; and

• consideration of legislation which would enable the payments industry to prevent payments to services outside Europe which allowed under 18s to view R18 equivalent material.

Recommendations for further actions had been presented to DCMS and ATVOD had had received undertakings from the Creative Industries Minister immediately prior to the publication of the ATVOD research report For Adults Only? . Since publication of ATVOD's research, DCMS had followed up on the undertakings given. In particular, the draft Statutory Instrument relating to UK based services had been developed and it was hoped that it would be in force by the end of 2014. It would put beyond doubt that R18 material can only be provided on an ODPS if persons under 18 will not usually see or access it.

As the Statutory Instrument would define material according to standards set by the BBFC, it was anticipated that Ofcom, BBFC and ATVOD would agree a Memorandum of Understanding. Any additional activity for ATVOD as a result of these changes will be reflected in revisions to ATVOD's Rules and Guidance, which will require consultation.

The position on overseas providers based outside the EU had been discussed at a meeting between ATVOD, DCMS, Home Office, Ministry Of Justice, Crown Prosecution Service and the payments industry. As a result of that meeting, DCMS had agreed to consider the feasibility of introducing a licensing regime for foreign pornographic websites (similar to that being introduced for foreign gambling websites). A timetable had not been provided.

The Board AGREED that ATVOD should offer assistance to DCMS in its efforts.

The Board NOTED that the proposal had been taken up by a number of high profile third parties and that the Opposition had tabled an amendment to the Criminal Justice and Courts Bill which would establish a licensing regime for foreign porn services.

Note that the licensing provisions in Lords amendment of Criminal Justice and Courts Bill were in fact withdrawn but it is interesting to note the devious plan being hatched by the government.

It sounds ludicrous to expect foreign companies to submit to UK licensing when it would be very unlikely that the provisions could be enforced by prosecutions launched from Britain. However this is clearly not the point of the licensing. It is so that unlicensed foreign companies can deemed to be nominally breaking UK law (even if this can't be enforced) so as to give the banks and payment services a legal excuse to deny payment services for at least the UK portion of the website's trade.

ATVOD's press release reads

The Authority for Television On Demand, co-regulator of editorial content in UK video on demand services, has published its annual report detailing steps taken by ATVOD in the year to 31 March 2014 to protect children from hardcore porn on regulated video on demand ( VOD ) services.

This included action against a service run by JP Media which resulted in the first ever use of powers to suspend the right to provide a VOD service. The porn video site operated by JP Media had failed to ensure that under 18s could not access hardcore porn content on the UK operated websites. The JP Media service was among 16 services, operating across 20 websites - found to be in breach of the statutory rules in 2013-14 because they featured hardcore porn material which could be accessed by under 18's.

Of the 16 services, 14 acted to make changes to bring the service into compliance or closed. The remaining two were transferred to the control of a company based in The Netherlands. Although regulated under the same EU Directive, the Dutch regulatory authority does not share ATVOD's view that hardcore pornography might seriously impair under 18s and so on-demand services provided from that jurisdiction are not required to have in place the sort of age verification and access control systems required by ATVOD in the UK.

ATVOD Chief Executive Pete Johnson said :

We have made good progress in ensuring that UK operators of regulated VOD services comply with rules designed to protect children from harmful content, but we are not complacent and will continue to monitor relevant services and act as required.

Our enforcement activity has sent a clear message that UK providers of hardcore pornography on demand must take effective steps to ensure that such material is not accessible to under-18's. Asking visitors to a website to click an 'I am 18' button or enter a date of birth or use a debit card is not sufficient, if they are going to offer explicit sex material they must know that their customers are 18, just as they would in the 'offline' world.

[However the ATVOD mandated child protection measures as so onerous that it is almost impossible for businesses to survive after implementing them. An interesting statistic in the report rather illustrates this. In a survey of internet access ATVOD found that only 1 of 1266 adult sites visited by members of a 45,000 strong survey was a British site working within ATVOD censorship rules].

ATVOD Chair Ruth Evans said:

ATVOD will continue to discuss with policy makers further options for reducing the exposure of children to pornography and other potentially harmful VOD material on websites based outside the UK . We strongly support initiatives designed to improve the take up of parental control software and have worked with the Department for Culture Media and Sport on the drafting of legislation which will prohibit on UK based VOD services any material which would not be classified for sale on a DVD.

In addition to the 16 breaches relating to the provision of hardcore pornography, the authority also details in its Annual Report a further 56 breaches of the statutory rules, giving a total of 72 breaches during 2013-14, an increase of 200% on the previous year.

Another interesting statistic that ATVOD failed to mention was that ATVOD spent £510,900 in the report period so each of the 72 breaches of the code cost on average, £7095 to process.

Surely this money would be better spent commissioning a practical national ID scheme administered by trusted parties rather than handing over highly personal ID date to dodgy porn sites with easy potential for identity theft. This would then allow British websites to compete whilst children would be better protected by a scheme that was acceptable and practical for everybody.

Comment: ATVOD latest idiocy

19th July 2014. Thanks to Alan

The mind boggles!

Where do they find fuckwits like Pete Johnson? How much do they pay him?

I haven't the foggiest idea where they get evidence for this crackpot notion that porn is somehow harmful to people aged less than 18. Bloody hell, more than half a century ago I was able to enjoy a quiet J Arthur over Pamela Green and June Palmer, in mags readily obtained by the lads at my boys' grammar school. It doesn't seem to have wrecked my life. I picked up a few degrees and spent my working life in adequately paid white-collar jobs. Strength to the elbow (and wrist) of today's teenage lads if they defy this clown and get their fix of porn.

Melon Farmers: The Annual Report reveals that ATVOD paid £105,060 to Pete Johnson in salary, and a further £18,911 in pension contributions.