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.
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 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 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
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
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.
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.
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.
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.
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
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.
One year on, and the reality of the co-regulatory system is far from light-touch. Individual companies have been engaged in an ongoing succession of disputes with ATVOD about which services must notify, which services should fall
under ATVOD's remit, what constitutes one service as separate from another, and who holds editorial control of the VOD content and must act as the notifying company.
Above all, the most significant problem is the level of fees per service that are required to be paid to ATVOD on an annual basis. Under the new fees structure announced last week, fees for this financial year will be based on the
revenue of the holding company rather than the website involved, and so will place a disproportionate burden on these services.
Not only does it appear that the fees are disproportionate for the services, but they also appear disproportionate to the obligations that ATVOD is tasked with carrying out. Contrary to initial assurances -- and the AVMS Directive
-- short video clips, typically on magazine and newspaper websites, are caught. How can they be considered TV-like when services such as YouTube are exempted?
Furthermore the UK's approach is disproportionate when compared to the way that other EU member states have implemented this part of the Directive. As a result, many UK-regulated VOD providers are refraining from launching new VOD
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
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
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.
It is not the nature of the regulations, however, that poses the greatest risk to the development of this market. Rather, it is the costs that ATVOD charges participants to be in the market. ATVOD currently has an operating
budget of over £ 520,000 per annum but this is too much for its regulated services to support. A number of the existing VOD operators have written to the government expressing serious reservations about
the cost and nature of the ATVOD co-regulatory structure.
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.
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.
Response to ATVOD consultation about Year Two Fees:
My interest in this consultation is limited only to the interests of smaller enterprises and existing/possible/potential ODPS, with turnovers less than ?100,000. It should be noted that I have no objection to the overall concept of
content regulation in the public interest, but have an extremely strong objection to regulation which could damage UK-based business against European competition which may exist in a less costly regulatory regime, and world-wide competition which may not
be regulated at all.
Over the past year, I have found ATVOD's standpoint to be consistently anti-small-business, characterised by a failure to research the internet video scene and engage properly with smaller organisations, and an air of disinterest in
engaging with organisations outside of the UK's major broadcasters.
I would therefore like to see ATVOD return to the spirit of the original Government Directive which states: the Government expects that the fees payable to the regulatory authorities by businesses providing on-demand programme
services will be set in such a way as to minimise any potential adverse impacts on small businesses.
The internet TV censor ATVOD has published determinations that Sun Video, News of the World Video, Elle TV and Sunday Times Video Library are on demand programme services
Video on demand offered by some national newspapers and magazines will be subject to regulation and expeiisve fees, under a unilateral ruling published by ATVOD.
Newspaper and magazine proprietors argued that their video offerings, accessed on-line and by mobile devices, are exempt from new regulations because they are part of online versions of newspapers, not services offering TV-like programmes which
are subject to the new law.
But the video on demand co-regulator has rejected the argument. It believes some services are designed to offer TV-like programmes on-demand, and therefore must fall within the scope of regulation and ATVOD fees.
Proprietors will now challenge the ruling by The Authority for Television On Demand ( ATVOD ) by appealing to communications regulator Ofcom. If the ruling is upheld, affected newspapers and magazines will have to pay annual fees to ATVOD and
ensure that the regulated video content meets ATVOD rules.
Commenting on the recent rulings, ATVOD Chair Ruth Evans said:
ATVOD has no desire or remit to regulate the press -- whether online or offline -- but we do have a duty to be even-handed and apply the new statutory regulations in a fair and consistent manner. Where video content appears as an
integral part of an online version of a newspaper, for example alongside a text based story, then the service falls outside our remit: it is indeed excluded by law.
Many services provided by newspapers and magazines fall exactly into this category and can expect to hear nothing from ATVOD..
But that is not what happens in these particular services. In each case, a catalogue of 'TV like' programmes is offered as a discrete service, comparable with many others. There are clear differences between these services and
on-line versions of newspapers.
Ofcom, who are responsible for hearing appeals under the new regulations, have confirmed that an appeal has been lodged with regard to Elle TV and that appeals are expected shortly with regard to Sun Video, News of the World Video and Sunday Times Video
The Authority for Television On-Demand (ATVOD) cleared Channel 4's video on-demand service for offering a 'controversial' episode of Frankie Boyle's Tramadol Nights.
When episode two of the series aired on Channel 4 in December, it featured a range of pre-recorded sketches and Boyle making jokes in front of a studio audience, including derogatory remarks about celebrities such as Jade Goody, Heather Mills, Michael
Jackson, Katie Price and Susan Boyle.
Ofcom received around 50 complaints about the programme, including one from Price, who accused Boyle of being a bully over comments made about her disabled son Harvey. Another complainant described the sketches and jokes in the programme as atrocious, demeaning and degrading... [and] entirely reprehensible
As Channel 4 made the show available on catch-up platform 4oD, ATVOD, which this week changed its name from the Association for Television On-Demand, was tasked with addressing the complaints.
Statutory rules for VOD content are significantly less strict than those for TV broadcasts, and do not currently prohibit programming that is deemed offensive. In cases where content might seriously impair the physical, mental or moral development of
persons under the age of eighteen , providers must make efforts to prevent young people from accessing the material.
After reviewing Frankie Boyle's Tramadol Nights, ATVOD ruled that the programme would not seriously impair the development of under-18s and so decided not to take any further action. The regulator also noted that Channel 4 had run a warning around the
programme on 4oD, despite not being obliged to do so.
Commenting on the decision, ATVOD chair Ruth Evans said: Many viewers may regard the material as highly offensive, including to people with disabilities, and unsuitable for under-18s, but providing such content to under 18s is not a breach of the
rules set by parliament if it does not fall foul of the 'might seriously impair' test.
Offsite Comment: Nutters of Mediawatch-UK Unimpressed
The way we are watching television is changing and many of us are now choosing to watch online; this is particularly popular with the under twenty-fives. In this brave new world neither the watershed nor Ofcom's broadcasting code
It is bizarre that broadcasters are, quite rightly, unable to broadcast certain material on air until after the watershed but are quite free to broadcast the same material over the internet at any time without there being
adequate protection mechanisms in place.
We submit that post-watershed material should only be available to viewers who have been subject to a more rigorous age-verification check than the current tick box system on offer. We would like to see a PIN number which could be
provided by the viewer's internet service provider, telephone company or the TV licensing body each of which need to paid for, in the vast majority of cases, by an adult. We believe that there are feasible steps that can and should be taken by
broadcasters to control access to post-watershed material by children.
ATVOD has announced a name change to coincide with the launch of its revamped website.
Formerly The Association for Television On-Demand , it is now rebranded as The Authority for Television On Demand . It will still use the acronym ATVOD .
The name change reflects the shift in ATVOD's status and role following designation by Ofcom last March as the new co-regulator for editorial content on certain video on demand services . Use of the word Authority in a company name requires the
formal approval of the Secretary of State for Business, Innovation and Skills and this was secured with the support of Ofcom.
The change coincides with a major revamp of the ATVOD website designed to improve communication with internet TV providers and viewers. The changes include an online complaint facility for users of video on demand services who believe that a service may
be in breach of the new statutory rules.
Commenting on the changes, ATVOD Chief Executive Pete Johnson said:
The use of 'Association' in our name was no longer appropriate and risked causing confusion over our role as a co-regulator working with the industry and designated by Ofcom to perform statutory functions. 'Authority' is a much more
accurate description of our new role, status and function.
The website revamp was timed to coincide with the change in our name and will allow us to communicate much more effectively with users and providers of video on demand services. We are particularly pleased with the new online
complaints facility which will make it much easier for users to register their concerns about video on demand programmes.
ATVOD have estimated that they need to make a large increase to fees charged for their (so far) mainly invisible 'service'.
In fact if they stick with their fixed rate model then their fee would raise from to £ 2900 to £ 3968.
But the flat rate scheme, as unsurprisingly supported by the large industry players who answered the consultation, has been seen as barrier to market entry by small players. (See
So for 2nd year fees, ATVOD are again consulting industry stakeholders, but this time ATVOD have proposed a clearer concession scheme for small VOD providers. They have also proposed options for tiered fee payments according to the turnover of the VOD
Perhaps the consultation should be widened out to monopoly watchdogs and fair trade agencies.
The basic proposals for year two fees are:
£ 150 Concessionary rate for non profit organisations and charities
£ 250 Concessionary rate for micro commercial providers with turnover < £ 50,000
£ 500 Concessionary rate for small commercial providers with turnover £ 50,000 to £ 100,000
For larger VOD providers:
Option A fixed rate fee of £3968
Option B1 sliding scale of turnover based fees: £1000, £6165 and £12,330
Option B2 sliding scale of turnover based fees: £1000, £6975 and £13,950
Option C sliding scale of turnover based fees: £1000, £1823, £3645, £7290 and £14,580
ATVOD invite written views and comments on the issues raised by 5pm on Friday 1 April 2011.
For larger consultation responses please email firstname.lastname@example.org attaching your response in Microsoft Word format, together with a consultation response coversheet.
Responses may be posted to
Year Two Fees Consultation
The Chief Executive
1 Victoria Street
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
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
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
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.
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
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
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
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.