Ofcom Watch

ATVOD, the UK Video on Demand censor, has published the result of an appeal to Ofcom which resulted in the confirmation that the Daisy Rock UK website is subject to suffocating censorship by ATVOD.

An appeal by the service operator against an ATVOD determination in November 2014 that the website was an on-demand programme service and therefore subject to regulation by ATVOD was rejected by Ofcom.

The ruling means that the Daisy Rock UK website -- which provided access to a range of explicit sex videos - must comply with an ATVOD Rule which requires services to keep explicit sex videos behind onerous and unviable access controls which ensure that children do not normally see them. The website operator had been found in breach of that rule in November 2014 and had brought the service into compliance pending the outcome of the appeal.

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. 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. The provider of the Daisy Rock UK service had argued that the principal purpose of the website was to operate as a fan club for an adult porn performer and that the video content was not comparable to TV programmes. The Ofcom decision supported ATVOD's original ruling that the principal purpose of the website was to provide TV-like programmes, noting that the provision of audiovisual material was the main offering of the service and that the videos themselves were comparable to the type of adult sex material included in certain premium subscription and pay per view television channels -- even though the content was stronger than that allowed on UK TV.

The UK rules overseen by ATVOD implement an EU Directive which makes clear that the rules are intended to apply to services which are mass media and which compete with television broadcasts services. The provider of the Daisy Rock UK service had also argued that the low turnover of the service meant it was neither mass-media nor in competition with television services and therefore placed it outside the scope of the Directive. In upholding the original ATVOD decision, Ofcom also rejected this argument.

ATVOD Chief Executive Pete Johnson commented:

The decision to uphold the ATVOD ruling makes clear once again that hardcore porn videos on adult websites may be subject to the ATVOD rules even if they are too explicit to be broadcast on UK television channels. It also makes clear that services with low turnover fall may within our remit.

Travellers have complained about Ofcom's decision to clear the BBC after Jeremy Clarkson was shown on an episode of Top Gear with a sign reading Pikey's Peak .

The Traveller Movement are 'outraged' that the communications regulator has green-lit the use of the word pikey and claim it is a victory for racist bullies .

A Traveller Movement spokesman told the Guardian:

We are appalled that Ofcom have followed the BBC Trust's line and have green-lit the use of 'pikey' on Top Gear.

Their decision that this particular use has no reference to Gypsies and Travellers is bankrupt.

The viewing public are not that stupid and Ofcom need to give them more credit. The decision is a victory for racist bullies and we will be meeting with our solicitors, Howe & Co, to consider our options.

An Ofcom spokesman said:

Following thorough investigation we found this programme did not break broadcasting rules by showing a placard which said 'Pikey's Peak'.

We found that, while some in the audience would perceive the word pikey as a derogatory term for Gypsies and Travellers, on balance there was sufficient context in the way the word was used to minimise offence.

However, we have advised broadcasters this doesn't mean the use of the word is acceptable in any programme in any context and that it is capable of causing significant offence in certain contexts.

Ofcom did not rely on the BBC Trust's findings in reaching its decision. As the UK's broadcast regulator, our team investigated this programme completely afresh and reached an independent decision.

It is Ofcom's view that the broadcaster ensured there was sufficient context in the way the word was used to minimise offence and therefore that the use of the word in the context of this programme was not in breach of [...] the Code.

The American entertainment website, www.vice.com has a page for video articles, mostly international, but a with a few of UK interest. www.vice.com/en_uk/videos . The website also has staff working in the UK for a company called Vice UK.

ATVOD considered that this was sufficient UK interest for the video service to be liable to ATVOD censorship which comes with a hefty price tag but absolutely nothing in return for the money.

As the website is under US editorial control and hence out of UK jurisdiction, Vice appealed ATVOD's decision to Ofcom who are the ultimate authority for censoring internet video.

Ofcom looked into the location editorial control of the website videos, which is one of the legal fundamentals of deciding the jurisdiction in charge of censorship. And Ofcom concurred with Vice, that the website is controlled from the US and so overturned ATVOD's decision.

This rather leaves ATVOD hunting around for new victims to try and pay for its expensive 'services' of looking into a trivial 55 complaints in a year about UK internet video. Existing non-adult internet video companies are rationalising and declining in numbers, whilst adult services are either closed down or driven offshore by ATVOD's impossibly onerous age verification requirements.

Comment: Wrath

24th July 2015. Thanks to Therumbler

Interesting that ATVOD targeted Vice. One of their writers, Frankie Mullen , has written articles appearing on Melonfarmers, and has questioned the validity of some of the research being used to push internet filters .

This isn't the first time someone questioning ATVOD's vision has been targeted by them. Pandora Blake from the Dreams of Spanking website wrote about her experience of ATVOD :

It seems pretty likely that my visibility as a campaigner has made me a target. In other words, ATVOD are punishing me for speaking out against them. My priorities as a loud-mouthed activist have, it seems, ended up conflicting with my priorities as a creative artist. If I'd kept my head down and stayed quiet, and not attended any protests, or argued against the regulations on the news, or done interviews with the press - if I'd not written a lot of angry blogposts or fundraised £3826 to help Backlash fight the laws - maybe I'd have been left alone a bit longer.

Ofcom chief executive Sharon White was called to address the parliamentary culture, media and sport select committee. During the course of the session White told the MPs that she is paid £275,000 a year.

She seemed keen on expanding Ofcom's remit to take on the censorship portion of the BBC Trust's current role. She did however baulk at the suggestion to take on wider governance of the BBC.

White said Ofcom already regulated various aspects of the BBC's output, including issues around decency and harm and offence, and said if the government wanted it to extend its responsibilities to bias and impartiality we will do the best possible job .

But she also warned there would be resourcing implications for the censor, which deals with around 25,000 complaints a year, a tenth of the 250,000 complaints that are received by the BBC on an annual basis.

White was quick to belittle a further option that another body entirely should pick up the BBC censorship role. White warned that concern should be taken that a new OfBeeb-style body did not clash or cause confusion with the role of Ofcom. But she laughed off suggestions of a looming turf war .

On the topic of extremist religious broadcasting, White said that Ofcom has not been hampered by lack of legislation in cracking down on extremist broadcasts following David Cameron said it should be given beefed-up powers to tackle the issue. This was identified as one of the key pillars of Cameron's five-year counter extremism strategy unveiled on Monday, in which he said Ofcom would be given new powers to take action against foreign channels that broadcast hate preachers.

White told MPs on the House of Commons culture, media and sport select committee:

We haven't found that we have been unable to act because the legislation hasn't given us the powers.

Where do you place cause and effect, between television and content being a powerful influencer, and that reflecting growing views in society?  It's a very difficult judgment to make ... One suspects that it will vary by community, even by family.

She said Ofcom had a very good monitoring department that looked at potentially extremist content but added:

Depending on the detail of the prime minister's statement and how that gets reflected in legislation ... we would need to look at the team and whether it would need some extra resourcing.

Ofcom shares the government's concerns about harmful, extremist content, and we have taken action against a number of channels. We are continuing to work closely with the government to ensure audiences remain protected.

But she said the regulator's remit with regard to the internet was rather limited, to the broadcasting of stuff that looks like it's been on the television, in the terrible jargon, TV-like content . Ofcom's remit does not cover content on the open internet.

The Culture, Media and Sport Committee of the UK's House of Commons is to hold its first evidence session with the newly-appointed Chief Executive of Ofcom, Sharon White. She will appear before the Committee on Tuesday 21 July.

Amongst over topics, the agenda items include: Tackling harmful content online.