ATVOD Watch

ATVOD responded to Ofcom's decision to overrule an ATVOD determination that a BBC Worldwide VOD service was subject to ATVOD censorship:

Decision turned on new evidence not made available to ATVOD

An appeal by BBC Worldwide against an ATVOD determination that it was providing an on demand programme service on the Italian Mediaset platform has been upheld by Ofcom.

In order to fall within the scope of the regulations overseen by ATVOD, a service must satisfy a number of statutory criteria, as set out in section 368A of the Communications Act 2003. In 2011, BBC Worldwide asked ATVOD to determine whether its involvement in the provision of programmes made available on demand on the Mediaset platform in Italy constituted provision of an on demand programme service.

The decision turned on whether BBC Worldwide or Mediaset exercised general control over the selection and organisation of the programmes comprising the relevant video on demand service. The ATVOD decision had been taken on the basis of contractual evidence provided by BBC Worldwide following a request by ATVOD for all relevant information.

Ofcom's decision to uphold the appeal takes into account new evidence from BBC Worldwide which was not made available to ATVOD at the time of its Determination.

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

This is a complex area and the appeal system is a vital part of the process, giving service providers, in particular, greater clarity over issues such as where regulatory responsibility lies when two or more parties are involved. In this case, it is unfortunate that ATVOD was not provided with all relevant information at the appropriate time - doing so ensures that unnecessary regulatory costs are avoided.

The question is bound to be asked, come the Communications Green Paper, whether ATVOD should now be given a decent burial. What purpose is served by an extra layer of content regulation - whether ATVOD-style co-regulation or a full-blown statutory regulator -- over and above the general law, especially when funded by imposing substantial costs on a small section of industry?

Are there alternatives? The UK government does have to comply with the AVMS Directive, which lays down content requirements specific to TV-like audiovisual services. However those can be enshrined in a few paragraphs of statute, with a sanction such as the ability for a person affected to apply to court for an injunction. That, in conjunction with a voluntary code of conduct, is how the Irish government has implemented the AVMS Directive.

Subjecting on-demand audiovisual services to an appropriately crafted statute would remove the need for a funded regulatory or co-regulatory body and provide a regime much closer to that applicable to most other speech and content, both generally and on the internet.

...Read the full article

Dear Sirs,

I'm writing both as Managing Director of Strictly Broadband Ltd., a notified ATVOD ODPS provider, and Chairman of AITA, the UK's Adult Industry Trade Association.

It has recently become apparent that despite some efforts, the voice of our industry hasn't, until recently, been heard by the ATVOD board. This has recently changed with the appointment of Chris Ratcliff of Portland TV to the board, which we welcome. This letter is intended to explain why our industry has apparently been reticent to implement ATVOD rules.

My own business has been operating since 2004, selling rentals of online streaming adult videos. I established the business in the UK, which at the time was quite unusual for an online adult business; in 2004, the online adult industry had little idea where we stood legally, and most companies were established offshore. My aim was to track and implement UK regulation as it evolved. Initially, we worried that we may be in breach of the Video Recordings Act (VRA) -- however, the BBFC and police came to the conclusion that the VRA didn't apply to online adult businesses, and we found ourselves in a legal grey area.

The first attempt at regulation was by the BBFC Online scheme; Strictly Broadband joined and implemented the scheme at a cost to ourselves of around £10,000. The scheme ultimately failed to gain official recognition. So the first real regulation we faced came when ATVOD was formed. As with the BBFC scheme, Strictly Broadband made early contact with ATVOD, and became an early service to notify.

During this same period, the global online adult industry has been through a huge recession and shake-out as a result of the sudden availability, from late-2007, of free streaming content via the so-called tube sites. It is estimated within the industry that a revenue decline of 80% to 90% has been experienced during the past four years. Rather than being a grass-roots movement, the tube sites are largely operated by a few big industry players, in particular Manwin, which is a Canadian company (but owns UK businesses). The end result is that, as the ATVOD regulations are being introduced, many of the original players have gone out of business and those that remain are relatively small businesses compared to a few years ago. Strictly Broadband has seen its revenue and staff levels fall by over 50% during this time.

As a business and an industry, we have consistently strived to operate within laws and regulations; however, the regulations now being imposed by ATVOD are so onerous that they are effectively impossible to implement. We have always age-verified (via payment systems) before people can view our video product. However, the requirement that we age-verify before even photographic sales imagery can be seen will simply drive most of our customers to sites outside ATVOD's scope. The one company to fully implement these rules to date, Portland TV, has seen an 80% fall in new business, and a 28% fall in overall revenue, since they complied. As I'm sure the board will appreciate, few businesses can survive such a decline, especially in the current economic climate.

The ATVOD regulations seem to ignore a basic fact: the Internet is a global, borderless marketplace, and well over 99% of our competitors operate outside ATVOD's scope. To my knowledge, none of the top 100 adult services viewed by UK consumers falls within ATVOD's remit. Even among UK sites, none of the top three has bothered to notify. Furthermore, thousands of non-adult services, including Google and Twitter, freely display hardcore imagery without age verification. Therefore the ATVOD rules, particularly Rule 11, do not protect consumers in any way, but merely serve to punish those services that try to operate legally within the UK.

So far, I'm aware of one UK business that has closed down due to ATVOD's rules, and a second that has relocated outside the UK. If ATVOD pushes ahead with enforcement of Rule 11, the effect will be to decimate the UK adult industry. My own business would not survive the implementation of Rule 11, and I'm currently in discussion with EU-based partner businesses to outsource the key business functions if necessary. Our aim, since 2004, has been to comply with UK regulation; ATVOD is currently making that aim impossible to achieve.

Even if the entire UK industry closes down, adult content from outside the UK will be as easily accessible as it was before ATVOD. The regulations not only fail to stop adult content being accessible by children, but actually remove the few ethical businesses that want to comply with UK laws and pay UK taxes. From an industry perspective, this seems counter-productive; surely the aim of any regulations should be to tilt the playing field towards compliant businesses, rather than towards those who escape regulation?

AITA is looking at the possibility of creating a campaign, similar to the Drink Aware brand run by the alcohol industry, that would help educate parents on how to filter adult content from their children's Internet devices. We feel that this would be a better way forward to a regulated industry rather than punitive measures which would simply drive the UK industry offshore.

Sincerely,
Jerry Barnett

Chairman AITA
Managing Director, Strictly Broadband Ltd.

Fees reduced by 3.58% across the board and banded fee structure retained for second year after public consultation backs ATVOD proposals

Following a public consultation, The Authority for Television On Demand (ATVOD) , the regulator for video on demand services, has today announced its fee tariff for the year ending 31 March 2013. The new tariff, approved by Ofcom, retains the progressive banded structure first adopted for 2011-12 (which includes concessionary rates for micro-scale, small-scale and non-commercial service providers) and reduces rates by 3.58% in each band.

The key outcomes are:

• Fees reduced by 3.58% across the board

• Concessionary rate of £96 for non-commercial service providers

• Concessionary rates of £145 and £193 for commercial service providers with turnover below £50,000 and £100,000 respectively

• A three band standard tariff based on the turnover of the service provider, with rates set at £771, £4,990, and £9,980 for the first service, and a maximum of £771 per service for further services from the same provider

• A cap of £25,000 on the total fees paid by any single provider

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

The proposals we set out in the consultation took account of the work we had done in partnership with the industry through a joint working party and were endorsed by an overwhelming majority of respondents. We are very pleased to be able to cut fees across the board for 2012-13 and under the new tariff we expect that at least 50% of service providers will pay no more than £771 and the smallest providers will pay £193 or less. At the other end of the scale, companies operating large numbers of services will pay just £771 for each extra service and will not pay more than £25,000 however many services they provide.

Meanwhile it has been reported that ATVOD are getting heavy in trying to extract previous years fees from unappreciative VOD providers, and are threatening to issuing winding up orders.

Christopher Wollard, group director of Ofcom, has written to ATVOD:

Two years ago, Ofcom designated ATVOD (the Authority for Television on Demand) as co-regulator of editorial content included in on-demand programme services ('ODPS').

Paragraph 13 of the Designation says that: The Designation shall be subject to a formal review by Ofcom at the expiry of two years from the date of this Designation taking effect [i.e. 18 March 2012].

We propose to take the opportunity of the formal review of the Designation to take a broader look at how co-regulation is working.

To this end, the terms of the review, which have been agreed by Ofcom's Content Board, are to:

• (a) assess whether Ofcom's tests for co-regulation are still being met, and that ATVOD remains an appropriate regulatory authority

• (b) consider how ATVOD is discharging the designated functions and whether it is meeting the obligations and conditions

• (c) identify any issues arising from the co-regulation of ODPS that would merit further consideration

• (d) consider whether to continue the designation, and if so, whether there are any aspects of the designation that may require amendment

Ofcom are keen to hear from stakeholders, particularly VOD providers. Contributions are invited up until 21st May 2012.

Ofcom expect to announce the results of the review in summer 2012.

The Authority for Television On Demand (ATVOD) has announced the appointment of Gidon Freeman, Sophie Jones and Chris Ratcliff as Non-Independent Board Members and Directors.

Gidon Freeman is Director of Regulatory and Government Affairs at NBC Universal International. He works on regulation and government affairs issues across NBC Universal's various businesses internationally.

Sophie Jones is Head of Corporate Relations at Channel 4. She is responsible for public policy, regulatory affairs and stakeholder communications at Channel 4.

Chris Ratcliff is Programming Director for Portland TV. Chris was previously Managing Director of adult distribution company Hot Rod Productions. He rejoined Portland TV in 2007 to manage Portland's adult broadcasting output and their respective on demand services.

Gidon, Sophie and Chris are expected to take up their appointments at the end of March. They replace Simon Hunt (of Virgin Media), Simon Milner (formerly of BT) and Chris Loweth (formerly of Channel 5).

Welcoming the appointments, ATVOD Chair Ruth Evans said:

We are delighted that Gidon, Sophie and Chris have agreed to join the Board. Between them they offer a wealth of experience in a variety of areas and will help to ensure that ATVOD understands the perspectives of the wide range of service providers who fall within ATVOD's remit as we work to ensure that consumers enjoy the regulatory protection provided for in law.

We would also like to express our thanks to the outgoing Directors -- Simon Hunt, Simon Milner and Chris Loweth -- for their outstanding contribution to the development of ATVOD, especially in its crucial first two years as the co-regulator for UK video on demand services.

ATVOD have announced a determination that all internet hardcore must be locked behind paywalls, that in practice can only be unlocked by credit cards, even debit cards won't do. I wonder percentage of customers are banned from watching porn because they haven't got a credit card or else would rather not use it).

And as far seriously impairing under 18's, I guess they will all have been seriously impaired already. And will continue to be seriously impaired to the benefit of foreign websites. The 'experts' are hardly convinced that the depiction of anything so natural to every person's life can be considered seriously impairing anyway. And the government seems to have asked ATVOD/Ofcom to bluff it out until more specific legislation can be drawn up. (See morally impaired plot).

And do any of these censors ever consider the serious impairment to our children caused by poverty. They seem so keen to add the mass of expensive state control freakery and yet it is suffocating Britain's ability to earn any money.

Anyway ATVOD have release the news article:

ATVOD Rules That Adult Website Must Block Access To Children

ATVOD publishes determination that adult video on demand website Bootybox.tv had breached statutory rules requiring video on demand providers to ensure that under 18s cannot normally access hardcore pornographic content

The Authority for Television On Demand (ATVOD) has today published its determination that the provider of the online video on demand service Bootybox.tv was in breach of a statutory rule which requires that material which might seriously impair under 18s can only be made available if access is blocked to children.

The Bootybox.tv website offered users access to explicit hardcore porn videos which could be viewed on-demand. The content of the videos was equivalent to that which could only be sold in licensed sex shops if supplied on DVD.

Responding to a complaint from a concerned father, who had discovered that his son had visited the site, ATVOD found that the website broke the statutory rules in two ways. Firstly, it allowed any visitor to the website unrestricted access to a selection of hardcore pornographic video promos/trailers featuring real sex in explicit detail and featured a large still image of explicit sex on the homepage. Secondly, access to the full videos was open to any visitor who paid a fee. As the service accepted payment methods -- such as debit cards and prepaid vouchers -- which can be used by under 18s, ATVOD ruled that the service had also failed to put in place effective access controls in relation to the full videos.

ATVOD followed up its ruling with an Enforcement Notification, requiring the provider of Bootybox.tv to either remove the hardcore porn content from the service or put it all behind effective access controls which will ensure that only adults can see it. The service has now ceased operating.

Speaking today at a conference at the House of Lords on ATVOD's role in child and consumer protection, ATVOD Chief Executive Pete Johnson will say:

UK providers of hardcore pornography on demand must take effective steps to ensure that such material is not accessible to under 18s. 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.

Last week, ATVOD followed up its ruling with a seminar for providers of adult content on video on demand services. The seminar was designed to ensure that such providers fully understood their obligations under the statutory rules and to make clear that ATVOD would take action in relation to any other providers found to be in breach of the rule.

Comment: ATVOD Stitch Up

27th February 2012. From beerandbollocks.com

The previous operator of Bootybox.tv made a few interesting comments to a forum.

Firstly he said that the complaint to ATVOD was initiated about the content of one of the films, not about ease of access to the site.

Secondly he summarised one of the important issues with ATVOD regulation that will suffocate British companies trading in adult video on demand:

With all due respect, do you seriously think any UK website owner is going to only use soft 18 images on their sites to promote their hardcore content? No.

The unlocked web pages of a website are for surfers to window shop and if there's soft images then first time visitors may think that the website only offers soft content.

It's effectively killing their business.

Ofcom has made an appeal decision that Ofcom was correct to determine that the MTV online service Viva TV Music is subject to expensive censorship as an on-demand programme service

An appeal by MTV Networks Europe against an ATVOD determination that its web- based music video service Viva TV Music is an on demand programme service and therefore subject to regulation has not been upheld by Ofcom.

The decision means that MTV is required to pay a substantial fee for its own censorship and ensure that the Viva TV Music service complies with a range of statutory requirements .

In order to fall within the scope of the censorship overseen by ATVOD, a service must satisfy a number of statutory criteria, as set out in section 368A of the Communications Act 2003. One of these is that the principal purpose of the service 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.

In the case of Viva TV Music, the decision turned on a number of issues, including whether the Viva TV Music section of the website constituted a service in its own right, and whether music videos are 'TV-like programmes.

Ed Richards, the boss of Ofcom made a speech to the Oxford Media Convention on the 25th January 2012.

He repeatedly alluded to more censorship for the internet and video on demand in particular. He said:

In between the twin poles of linear TV and the open internet, it becomes quite interesting.

When something looks, feels and acts like TV, but is delivered over the internet and into people's living rooms, we need something that meets audiences' expectations and provides the right degree of reassurance.

It is here that such services intersect with the views and concerns expressed by the participants in our research and where greater assurance than currently on offer may need to be considered.

It seems undesirable for these services to be subject to full broadcasting style regulation -- by and large they belong to a different form of service and come from a very different context. But we do need to consider whether to develop the approach in relation to existing co-regulation for video on demand to offer greater assurance and to ensure there is public trust in the approach to regulation as these services become more and more pervasive and significant.

In the case of video-on-demand services, our research shows that protection of minors and the risk of harmful content is the most likely focus. And our experience of broadcast regulation suggests that privacy and fairness for individuals are also areas that need careful exploration.

In this context I wonder therefore whether there may be a fairly simple opportunity to establish a core set of principles and aims which are held in common across a diverse media terrain with different regulatory environments.

Such a set of core principles could be established between the regulators that emerge from the current debate. They might aim to articulate the minimum standards which we would like to see in the UK, regardless of the nature of the service or its specific regulatory setting.

This is not as far-fetched as it may seem. The Ofcom Broadcasting code is remarkably close to the BBC's editorial guidelines. The PCC Code and the Ofcom Broadcasting Code share many of the same objectives, principles and indeed requirements, although the range of issues in the Ofcom Code is, for obvious reasons, significantly more extensive.

...

But we take an interest in the debate because over time, and quite quickly in some cases, the difference between video on demand content and that of increasingly video rich digital newspapers may well diminish. In thinking about an approach to media regulation for the next decade or more, it is as well to have an eye on the direction in which the tide is flowing.

More prosaically, we might be able to offer some assistance from what we have found to be necessary for regulation to be effective.

In our experience there are some critical features of regulatory systems which need to be present, or largely present, in order to ensure effectiveness and in turn to build and sustain public trust.

...Read the full article

ATVOD welcomes Ofcom appeal decision that it was correct to determine that three Viacom companies were responsible for VOD services featuring their content on the Virgin Media platform

Appeals by Viacom companies Nickelodeon UK Limited, The Paramount Partnership and MTV Networks Europe against ATVOD determinations that they respectively hold regulatory responsibility for the Nickelodeon, Comedy Central and MTV video on demand content on the Virgin Media platform, have today not been upheld by Ofcom.

The decision means that the three Viacom companies rather than Virgin Media are responsible for ensuring that the services comprising their video on demand programmes on the Virgin Media platform comply with the statutory rules which apply to On Demand Programme Services.

The decision turned on the definition of editorial responsibility as defined in section 368A of the Communications Act 2003, which states that a person has editorial responsibility for a service if that person has general control over what programmes are included in the service and over the manner in which those programmes are organised within the service.

Welcoming the decision, ATVOD Chief Executive Pete Johnson said:

This is a complex area and the appeal system is a vital part of the process, giving service providers, in particular, greater clarity over where regulatory responsibility lies.