ATVOD Watch

94 new complaints were received during September. Of these:

• 39 complaints were referred to the service provider in the first instance
• 23 were deemed to be out of remit after an initial assessment
• 31 are awaiting identification of the service
• 1 was subject to a full investigation which resulted in a determination that no breach had occurred. The complaint concerned an alleged failure to notify ATVOD of a VOD service.

Ofcom has upheld ChannelFlip's appeal against being designated as a VOD service (ODPS) and hence being liable to ATVOD censorship and ATVOD fees. Ofcom wrote:

Ofcom's Decision is that Channel Flip was not at the relevant time an ODPS as the form and content of the audio visual material included in that service was not comparable to the form and content of programmes normally included in television programme services.

In making this Decision, Ofcom notes that a significant period has elapsed since the original ATVOD Determination and subsequent appeal, during which time there have been a number of changes in the presentation of material on the Channel Flip website (and also in the ownership of the service, which has been acquired by Shine Group, a subsidiary of News Corporation). Ofcom's Decision is based on its review of the service at the time of the original Determination and appeal, and it is for Channel Flip and its owners to consider, on an ongoing basis and in light of this Decision, whether it starts to provide an ODPS at some point and to notify ATVOD if appropriate.

At the time of ATVOD's Determination and the subsequent appeal, Channel Flip was a free to view service marketing itself as, the UK's finest video shows . The home page of its website, www.channelflip.com, featured a drop-down menu of Shows , below which was a revolving selection of Featured Videos and further menus of Our Shows and Popular Videos . Clicking on an option took the user to a page featuring the selected video, which could be viewed. The viewing page provided links to other episodes in the series (where relevant), other shows and an opportunity to comment or share via sites like Facebook. Videos could be viewed on the viewing page or enlarged to view full-screen.

Shows included comedy material (e.g. David Mitchell's Soapbox and F.C. Dave ) and other light entertainment material (e.g. Richard Hammond's Tech Head ). Individual items were typically preceded by an advertisement or commercial sponsorship message and brief title sequence.

Most of the individual items were short in duration; Richard Hammond's Tech Head and David Mitchell's Soapbox episodes were each around 3 to 4 minutes in length for example. However, a few were longer; as noted in the Determination, for example, episodes of F.C. Dave had a duration of about 10 minutes. Individual items ended with brief credits.

It is noted that the particular items were not also broadcast on traditional television. It is further noted that series titles were consequently not likely to be very well known, although several titles featured the names of well known individuals like David Mitchell and Richard Hammond. The style of the material was not amateur (the word used by CML in its appeal request) in the sense of a home movie posted on a website like YouTube for example, but it is fair to say material appeared to be professionally made but on a limited budget (with simple, cheap graphics, for example).

The UK's adult industry trade body AITA has once again slammed VOD regulatory body ATVOD in an end of year statement highlighting its activities during 2012. The statement reads:

Like all responsible stakeholders in the adult industry AITA fully supports the goal to protect children from viewing inappropriate content and has representation on the board of IFFOR (the International Foundation For Online Responsibility).

However, the stance taken by ATVOD is, in our opinion, a short term solution that penalises UK business and individuals who trade on a global stage. ATVOD themselves have admitted that it is not a level playing field as they have no jurisdiction over free tube sites hosted outside the UK. As we all know these sites have had a hard hitting effect on the adult industry with many companies ceasing to produce films and the consequent knock-on effect for producers and performers.

AITA has lobbied ATVOD throughout the year and will continue pursuing a considered legal option of ATVOD's alleged outreach and unfair tactics, whilst collaborating with our colleagues worldwide to provide a more fulfilling solution, which allows all companies in this market sector to be treated equally.

Strictly Broadband, once a major British Video on Demand website has been fined £ 60,000 for breaches of the Authority for Television On Demand ( ATVOD ) Statutory Rules for Providers of Video on Demand. In particular

ATVOD Rule 11: 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.

Thereby being supposedly in contravention of section 368E(2) of the Communications Act 2003 (the Act ).

ATVOD interprets Rule 11 as requiring an effective Content Access Control System (CAC System) verifying the user is aged 18 or over where R18 equivalent material 3 is made available. They state that confirmation of ownership of a card where the card holder does not need to be 18 or over (such as a Debit, Solo or Electron card) would not be sufficient for this purpose. They also state that if age verification does not take place each time the user returns to the service, further access to such R18 content when the user returns to the service should be controlled by the use of mandatory security measures such as passwords or PIN numbers.

ATVOD considered that the Service Provider had breached Rule 11 by having no CAC system in place in relation to free material on the Service, and no effective CAC system in relation to paid access material on the Service. The Service provided R18 equivalent material without adequate measures to ensure that those under 18 would not normally see or hear it.

In particular ATVOD's investigations of the Service found:

a. R18 equivalent material available to view free without registration.

The homepage of the Service (which appeared without a warning page as to the nature of the site's content or other indication that the material was unsuitable for under 18s) included a significant quantity of free material including a banner window showing scrolling stills, a large number of thumbnail stills constituting links to available videos and movie trailers. These depicted R18 equivalent unsimulated sexual activity in explicit detail and could be viewed without registration or payment (i.e. there was no CAC System).

b. R18 equivalent material available to view free with registration.

On registration, users were provided with a free ticket to rent (i.e. view online) one full- length video for 14 days. Registered users could subsequently buy further tickets . Videos included material which was clearly R18 equivalent material involving unsimulated sexual activity in explicit detail.

c. Lack of an effective Content Access Control system at point of purchase.

Purchases could be made by debit card or SMS text message, neither of which did ATVOD consider to constitute an effective CAC System. The material available to purchase was R18 equivalent and extensive.

The Service Provider replied to ATVOD on 4 October stating that the Service had been sold to an American company on 1 August 2012 and that the company Strictly Broadband Limited had been put into liquidation.

ATVOD has claimed overwhelming support for the censor's enforcement of strict rules to curb on-line providers making hardcore pornography available to under 18s.

ATVOD has published a survey conducted by ICM Research on 26-27 September 2012, and involving responses from a demographically based sample of 2019 adults in Great Britain. This asked the leading questions:

• Q1. Hardcore porn videos are videos featuring real sex shown in explicit detail. How easy do you think it is for children to see hardcore porn videos on the internet? 77% replied quite or very easy
   
• Q2. The law requires UK providers of ‘hardcore porn’ videos to take steps to ensure that under 18s can't normally see such material. Those steps include restricting sales to credit card holders, or checking information against a reliable database e.g. the electoral roll. How important do you think such steps are? 88% replied quite or very important
   
• Q3. Inciting hatred is stronger than expressing dislike, ridicule or abuse and is not the same as discrimination . How easy do you think it is to find videos on the internet that are likely to incite hatred based on race, sex, religion or nationality? 70% replied quite or very easy

Strangely ATVOD didn't ask such questions as:

• Should adults without credit cards (debit cards not acceptable) be banned from viewing porn?
• Should be British companies be effectively banned from trading in the adult business whilst foreign companies are free to continue?
• Do you think Britain should develop a fair and practical system that allows adults to view porn whilst restricting children?
• Do you think it causes serious harm to depict an activity that children will be able to enjoy for themselves at 16, are well prepared for by the education system, and is discussed at great lengths in nearly all social circles and media.

ATVOD has recently investigated 23 notified adult services, finding 13 to be in breach of the statutory rules because they featured hardcore porn material which could be accessed by under 18's.

Two of those found to be in breach have now closed and eight have made themselves compliant by placing all hardcore material behind an effective access control mechanism. Four services which failed to make changes according to the timetable set by ATVOD have been referred to Ofcom. The back-stop regulator is now considering whether to impose financial penalties or restrict or suspend services. Other services have been forced to move offshore in the face of almost impossible trading conditions under ATVOD rules.

The VOD censor has also called for more to be done to protect UK children from hardcore porn on non-UK services, and encourages policy makers to consider:

• How to improve the take up and effectiveness of parental control software;
• Whether more effective use could be made of the Obscene Publications Act, given Crown Prosecution Service advice that offering unrestricted access to hardcore porn is prosecutable under that legislation;
• Whether a consensus might be built among EU Member States for measures to keep hardcore porn out of reach of children; and Whether action can and should be taken against UK entities involved in the provision of services from outside the EU, but targeted at the UK, for instance, payment processors.

ATVOD Chief Executive Pete Johnson said:

Public concern about the ease with which children can access hardcore pornography online is substantial and there is widespread support for ATVOD's policy of ensuring UK websites providing such content do so only with safeguards that keep it out of reach of children.

We have made good progress in ensuring that UK websites comply with rules designed to protect children from such harmful content, and our recent 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-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.

But we cannot be complacent, and the views of the public can't be ignored.

ATVOD Chair, Ruth Evans said:

We believe policy makers should consider whether more should be done to protect UK children from porn websites operating from other countries. Given the importance the public clearly attaches to protecting children from exposure to hardcore porn material, it is surely time to consider more imaginative ways to ensure that the standards ATVOD requires UK services to meet are replicated for hardcore porn websites operating from outside the UK and which are currently unregulated.

Scope Determination Service: Demand Adult Service provider: Playboy TV UK/Benelux Ltd

Introduction

On 9 June 2011 Playboy TV UK/Benelux Ltd notified the above Service to ATVOD.

On 19 June 2012 Playboy TV UK/Benelux Ltd wrote to ATVOD stating that Playboy TV UK/Benelux Ltd intended to move editorial responsibility for the Service to the group's head office in Canada.

On 21 June we requested further information on the transfer of responsibility for the Service, which we received from Playboy TV UK/Benelux Ltd on 11 July 2012.

On 24 July Playboy TV UK/Benelux Ltd confirmed that the transfer of responsibility had been completed (to Playboy Plus Entertainment, Inc in Montreal) and on 9 Sept and 10 Sept provided further evidence (in the form of email correspondence).

ATVOD's Determination

Taking all the relevant considerations into account, including the evidence you have provided, ATVOD, as the appropriate regulatory authority, has determined in accordance with section s368A(1) of the Communications Act 2003 that as at 14 September 2012, Playboy TV UK/Benelux Ltd is the provider of the On-Demand Programme Service named above.

The email evidence provided by Playboy UK (Annexes 1 to 3 - REDACTED) does suggest that a process of transfer has been in operation, with correspondence discussing redundancies of staff in the UK and information on access to various sites (including the Service) requested by the head office in Montreal (although the emails refer to www.demandadult.com, this appears to redirect to the notified service at www.demandadult.co.uk).

However, it is ATVOD's view that the evidence suggests transfer of editorial responsibility for the Service has not yet been completed.

Written information on the site itself (Annex 4 - REDACTED) as at 14 September 2012 refers to PlayboyTV UK / Benelux Ltd and the associated UK address, and refers to the Terms and Conditions as being government by English law. Domain registration data suggests that Demand Adult is registered not to the Canadian entity but to the US address of Playboy Enterprises International Inc (Annex 5 - REDACTED). Furthermore, the email correspondence from David Cooke of 10 September 2012 (included in Annex 1 above) states that [s]ince Montreal took over, we in the UK have been updating the sites as per the previous editorial plan, which was simply uploading content as it becomes available from the content department....we're only refreshing with new episodes when they have been transcoded. Montreal...[have] not got around to taking a look at how they might change things more drastically in terms of presentation or sale yet . This strongly suggests that PlayboyTV UK / Benelux Ltd retains editorial responsibility for the Service as defined by s368A(4) of the Act, ie. That PlayboyTV UK / Benelux Ltd still exercises general control over selection and organisation of the programmes constituting the Service. This is further supported by the fact that the overall design and layout of the Service does not appear to have changed in any significant details (Annex 6 - REDACTED).

Should circumstances change, with a full transfer of editorial responsibility to an entity outside the UK, then ATVOD will of course consider any evidence relevant to a new request to withdraw notification of the Service.

AITA is seeking deeper levels of clarity on the position of ATVOD. Whilst we fully support the issue of protecting minors from viewing inappropriate content, the stance taken by ATVOD is, in our opinion, a short term solution that penalizes UK business and individuals who trade on a global stage. ATVOD continue to exercise what appears to be a broader jurisdiction than was intended and as a result, lack clarity and competence when dealing with specific matters relating to Rule 11 in particular.

Adult Entertainment and content is mostly promoted and provided by utilizing the global internet. ATVOD remain of the view that a local solution, by forcing Age Verified Services for any UK based or managed business, will be sufficient and we have proven on many occasions, with the proliferation of content available outside the UK, that their current remit fails to achieve anything, other than unfairly bias and harm UK individuals and businesses who have always conformed to rules and regulation.

AITA will continue perusing a considered legal option of ATVOD's alleged outreach and unfair tactics, whilst collaborating with our colleague's world wide to provide a more fulfilling solution, which allows all companies in this market sector to be treated equally.

ATVOD has published its submission to the recent consultation by the UK Council for Child Internet Safety on parental controls its submission to the call for evidence from the House of Lords Select Committee on Communicatons on media convergence and its public policy impact

Together the documents begin to articulate ATVOD emerging public policy positions, setting out:

• ATVOD role and activities, especially in relation to protecting children
• The limitations of the current regulatory scheme, especially in relation to non-UK services
• ATVOD's view that it would be premature to attempt to put in place a rigid new regulatory structure
• ATVOD's view that public policy should focus on clearly identified areas of public concern, including the ease with which children can access hardcore porn online
• ATVOD's view that parental controls and media education are part of the solution, but their efficacy should not be overstated
• ATVOD's view that further consideration should be given to more active enforcement existing legislation, including the Obscene Publications Act

ATVOD reported that an Amended Designation came into force on 14 September. This followed the Ofcom's statement on the review of ATVOD's designation published on 15 August and Ofcom's publication on the same day of its procedures for dealing with appeals and sanctions in relation to on demand programme services. It allows ATVOD to make more decisions without referring back to Ofcom

And the latest September newsletter reveals viewer 56 complaints for August 2012.

• 26 were referred to the VOD service provider
• 28 were considered by ATVOD but were ruled out of remit after an initial assessment.
• 2 concerned services not notified to ATVOD and which are now the subject of a scope investigation

Following Determinations in July that 13 services had been in breach of its repressive Rule 11 (which bans debit card holders from accessing VOD porn):

• 4 services were referred to Ofcom for consideration of a sanction in light of their failure to comply with an enforcement notice.
• 2 services were closed
• 7 services complied with the credit (not debit) card requirement before letting surfers access any hardcore material

 After more than seven years of trading, VOD specialists Strictly Broadband and sister site Anywhere.xxx have closed their affiliate programmes as the company as an on-going business is shut down prior to being sold to the US.

Earlier this year Strictly Broadband MD Jerry Barnett warned that it would be impossible to run a UK-based VOD business and comply with regulations introduced by the UK VOD censor, ATVOD [the Authority for Television on Demand]

Following the closure, Barnett told ETO's Paul Smith:

The real story isn't what's happened to us, it's ATVOD, which has made difficult trading conditions unmanageable. It's a shame the wider industry and media has essentially ignored this. Basically there's an on-going, all-out attack on the adult industry which, since it was launched by ATVOD, has forced several websites to close and driven others out of the UK. Strictly Broadband -- with Anywhere.xxx -- is just the latest in a series of firms to have to take this radical step.

To move forward, and continue a service for our content providers and paying customers, the business has been sold to a US start-up firm called Velvet Rose which is a real shame, not just for the me, but for the staff who've I've had to let go, and for the UK treasury as the PAYE and VAT I was paying them now goes elsewhere.

ATVOD writes:

Tough action aimed at protecting children from hardcore porn videos on line has been revealed by one of Britain's media regulators.

More than 20 UK porn video services have been investigated in recent months by The Authority for Television On Demand -- co-regulator of editorial content in UK video on demand services.

The authority's annual report details steps taken by ATVOD in the year to 31 March 2012 to protect children from hardcore porn on regulated video on demand ( VOD ) services, including action against on-line service Bootybox.tv . The porn video site closed after ATVOD issued an enforcement notification requiring the operators to either remove the hardcore porn content from the service or put it all behind effective access controls which would ensure that only adults could see it.

Since the period covered by the annual report, ATVOD has launched pro-active investigations into 23 more notified adult services and found 13 to be in breach of the statutory rules because they featured hardcore porn material which could be accessed by under 18's.

Two of those found to be in breach have now closed and seven have made themselves compliant by placing all hardcore material behind an effective access control mechanism. Four services which have failed to make changes to ensure that under-18s cannot normally see hardcore material have been referred to Ofcom so the back-stop regulator can consider whether to impose a financial penalty or restrict or suspend the service.

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 recent 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-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.

In its report the authority also welcomed Ofcom's decision to confirm the TV on demand regulator's designation until 2020, and to give ATVOD more operating freedom, including removal of the need to seek prior approval from Ofcom before publishing guidance.

Commenting on the decision, ATVOD Chair Ruth Evans said:

ATVOD has developed and matured as a regulator over its first two years and we warmly welcome Ofcom's decision to reflect this not just by confirming that the Designation will run until at least 2020 but also by giving ATVOD greater autonomy and independence.

The 2012 Annual Report also highlights:

• A rise in the number of regulated VOD services: from 154 at the end of 2010-11 to 184 at the end of 2011-12

• A tenfold rise in the number of complaints to ATVOD about VOD services: to more than 50 per month in 2011-12

• ATVOD's analysis that regulatory protections may not be wholly in tune with the needs of viewers, especially their desire to protect children from inappropriate content, as TV, VOD and the internet increasingly come together on the main family TV screen in more and more households, providing a single and simple point of access to services subject to different regulatory regimes and to services which are unregulated.

• The consolidation of ATVOD, and its Industry Forum, in its second year of operation, and the introduction of a more robust and equitable fee structure with concessionary rates for non-commercial and small scale service providers

Update: A Cushy Number

27th August 2012.

ATVOD reported on viewer complaints received in the period under report. ATVOD received 602 complaints for the period 1st April 2011 to 31st March 2012. This compares with 30 for the year before.

• 396 were referred to the VOD service provider
• 204 were considered by ATVOD but were ruled out of remit after an initial assessment, either because the service which was the subject of the complaint was not an VOD service or because the complaint did not raise an issue which is a potential breach of the statutory requirements.
• 1 complaint was investigated but not upheld
• 1 complaint about Bootybox.tv was investigated and upheld over supposedly inadequate child protection measures

So for all the thousands of pounds of fees paid to ATVOD, only two complaints were investigated.

And the latest August newsletter reveals 55 complaints for July 2012.

• 31 were referred to the VOD service provider
• 21 were considered by ATVOD but were ruled out of remit after an initial assessment.
• 3 concerned services not notified to ATVOD and which are now the subject of a scope investigation

A couple of year's ago Ofcom delegated the role of Video on Demand censor to ATVOD.

Ofcom recently announced the required progress review of ATVOD's work and have now announced the result that ATVOD will continue to be the delegated VOD censor. In fact Ofcom changed the rules a bit to allow ATVOD to make some decisions without referring back to Ofcom for confirmation.

On the subject of R18s on VOD the review comments on ATVOD's decision against Bootybox.t:

Bootybox.TV was a website providing adult on-demand programmes. A complaint was received on 26 June 2011 that the service had ....no parental control on.... , and that the content was ....far too strong to be allowed even under UK law... . ATVOD conducted a full investigation of the service and established that the principal purpose of the service was to provide content that was R18 or stronger. In its view, the content met the statutory test of material which might seriously impair a minor and that accordingly an effective Content Access Control System was essential.

How can the depiction of sex, something that is so central to human life, and experienced by nearly everyone, many from the age of 16, be somehow 'seriously' impairing. The kids know all about it, as sex education is mandatory in schools. Not to mention that it is one of the major topics of conversation for teenagers. It is understandable that parents would prefer their kids not see it, but that is not the same as claims of 'serious' impairment.

ATVOD also got in a whinge about foreign tube sites:

ATVOD explored the concern over the ease with which children can access harmful material especially through a small number of so- called 'Tube' sites operating from the USA, and therefore outside ATVOD's jurisdiction . ATVOD has said that it will take a precautionary approach to implementing the Rule about material harmful to under eighteens when it is within its jurisdiction. Hence, it has made clear that ....material which might seriously impair the physical, mental or moral development of minors when provided as part of an on-demand programme service may include content that has been classified R18 by the British Board of Film Classification, or material equivalent to content classified in that category.

Ofcom allude to further Government thoughts on the matter in the next round of TV legislation:

Ofcom notes the views expressed by ATVOD and other stakeholders about the growing concerns around the availability of content that might seriously impair the physical, mental or moral development of under-eighteens, and expects to explore these issues further. Ofcom addressed this issue in its report on report on Sexually Explicit Material and Video-On-Demand Services39 . In its response40 to the report, the Government stated that it intended to address this issue comprehensively in its review of the current regulatory framework for the communications sector. Ofcom will take account of any conclusions reached.

A couple of year's ago Ofcom delegated the role of advert censor for Video on Demand to the Advertising Standards Authority (ASA).

Now they are reviewing that assignment and are inviting input from interested parties.

The rules for advertising on VOD as defined in EU legislation are a bit more basic than for advertising in other media. Ofcom specified the advertising rules as follows:

(1) Advertising of the following products is prohibited in on-demand programme services:

(a) cigarettes or other tobacco products;
(b) any prescription-only medicine.

(2) Advertising of alcoholic drinks is prohibited in on-demand programme services unless:

(a) it is not aimed at persons under the age of eighteen, and
(b) it does not encourage excessive consumption of such drinks.

(3) Advertising included in an on-demand programme service:

(a) must be readily recognisable as such, and
(b) must not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(4) Advertising included in an on-demand programme service must not:

(a) prejudice respect for human dignity;
(b) include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
(c) encourage behaviour prejudicial to health or safety;
(d) encourage behaviour grossly prejudicial to the protection of the environment;
(e) cause physical or moral detriment to persons under the age of eighteen;
(f) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;
(g) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;
(h) exploit the trust of such persons in parents, teachers or others; or
(i) unreasonably show such persons in dangerous situations.

I can't actually see where the rules allow ASA to claim its usual bollox about adverts causing widespread 'offence' of 1 person. I don't know how ASA cope without this fall back.

In July 2012 ATVOD received 41 new complaints. Of these:

• 23 complaints were referred to the service provider in the first instance
• 17 were deemed to be out of remit after an initial assessment
• 1 concerns a service which is not notified to ATVOD and which is now the subject of a scope investigation.

Meanwhile ATVOD 'determined' that TV On Demand on the Hutchison 3G UK mobile platform was liable to ATVOD censorship, but the Country Channel on YouTube was let off the hook.

ATVOD also noted that MSN Video Player had opted out of ATVOD censorship after ending its supposedly TV-like service.

An appeal by BSkyB against an ATVOD determination that it was providing an on demand programme service which included content from three Viacom companies (MTV, Nickelodeon and Comedy Central), has resulted in Ofcom referring the matter back to ATVOD for reconsideration.

Both BSkyB and the Viacom companies claimed that editorial responsibility lay with the other party. The ATVOD decision had been taken on the basis of contractual evidence provided by the parties.

Ofcom's decision to refer the matter back to ATVOD states that the reconsideration should follow the approach set out in Ofcom's Decision on the BBC Worldwide appeal in May 2012. That decision was made some months after the ATVOD Determination regarding Viacom content on Sky Anytime. The Ofcom decision makes clear that We therefore make no criticism of ATVOD in this regard, ...BUT... we nonetheless think it appropriate for ATVOD to re-consider the application of the Act to the Service now that Ofcom has set out our view of the appropriate approach.

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

Where two parties are involved in making video on demand content available to the public, the question of which party has 'general control' over the selection and organisation of the programmes that comprise the service can be finely balanced, especially where this is a dispute between the parties involved. We will now reconsider the issue of the Viacom content on the Sky Anytime platform, taking into account the appeal decision.

The government has asked the Leveson inquiry to consider giving the new press regulation body responsibility for web TV services ranging from Channel 4's catch-up service, 4oD, to adult content such as Playboy.

Jeremy Hunt, the culture secretary, has written to the inquiry into press ethics to suggest that the successor body to the Press Complaints Commission could become a one-stop shop for all news output by newspaper groups.

In his letter to Leveson, Hunt said he was keen that a regulatory framework be developed that would stand the test of time and avoid the risk of obsolescence .

He believes ATVOD should be folded into the new press regulatory body, arguing this would encourage newspapers to diversify into new types of audio-visual content because it would simplify regulatory requirements significantly .

He believes that the current situation acts as an inhibitor to newspapers which want to expand video production. A recent Ofcom test case involving Sun Video placed all newspaper content outside ATVOD regulation. Hunt claimed some newspapers have curtailed their video production in order to remain free of the TV-on-demand regulator.

Update: Not So Fast

11th July 2012. See  article from  guardian.co.uk . Thanks to edboal

The Guardian article was amended on 7 July 2012 to explain that the new press regulator's powers would only apply to web TV news rather than to all content, and to clarify that ATVOD would not be replaced by the new regulatory body.

Jerry Barnett speaks of three main areas of censorship affecting the adult industry:

1) ATVOD

Over recent years I have attempted to track regulations that may affect the UK adult industry. ATVOD's rule 11, which specifies that web sites are responsible for age-verifying users before any hardcore still or moving images can be displayed, is a source of major concern.

I have made representations to ATVOD that this regulation is punitive to UK businesses as it is not possible for a web site to implement such a mechanism without losing the bulk of its customers. Furthermore, since this only applies to businesses based in the UK, it has no effect on availability of adult content anyway -- this regulation seems to be designed solely to drive UK adult businesses either offshore, or out of business.

ATVOD's response to this has not been sympathetic -- they repeat the mantra that they are protecting children while ignoring the simple fact that these rules do nothing to reduce the availability of easily accessible adult content. My position is that the right approach to this is for the industry to use proper labeling technologies and ensure that parents are empowered and educated in how to block adult content if they so wish. Driving the UK adult industry out of existence would simply destroy the chance of any self-regulation.

I am currently taking legal advice on whether these regulations can be challenged and feel there are several grounds on which to challenge them.

2) Internet filtering

Claire Perry MP (backed by the Daily Mail) is pushing for the ISPs to filter out adult content at the connection level. I'm strongly opposed to this approach for several reasons -- as are a number of free speech organisations, not to mention Google. I have met with some anti-censorship organisations that are opposing the filter and will continue to meet with more. It appears an alliance against the plans is building.

There are several problems with network-level filtering:

Do we trust the government to decide what is adult ? The experience in other online censorship exercise shows that the list of blocked sites will grow over time. The filter in Australia was extended to cover all sorts of material that the religious right objected to. We know that many people who legally enjoy adult content would not switch off the filter (for a variety of reasons -- confidentiality, embarrassment, etc.) The filter would be easy to get around. It's likely that teenagers would find out how to avoid it while their parents are left with a false sense of security. It takes control out of the hands of parents and puts it into the hands of a nanny state that makes moral decisions about what adults and teenagers should choose to look at.

3) Obscenity

The Michael Peacock obscenity trial, in which he was found not guilty, seems to have undermined the case for obscenity prosecutions and for certain censorship decisions taken by the BBFC. However, the CPS and BBFC have stated that despite losing the prosecution the guidelines remain the same.

There is an opportunity to challenge the BBFC and CPS guidelines and it is likely that lawyers will take up this opportunity later this year. I believe this will be beneficial both for the industry and for free speech, and will be supporting this action.

Jerry Barnett, Chairman of AITA, and MD of Strictly Broadband, was invited to speak at the ATVOD Industry Forum on the 23rd May. He had also been invited to speak at the board meeting that same day to present issues facing the adult industry. Without prior warning that invitation was postponed until July.

On 1st June he received notification from ATVOD that he was in breach of Rule 11 and given 10 working days to respond.

From ATVOD. Rule 11: Harmful Material: Protection of Under-18s

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.

ATVOD Guidance:

Technical tools which may be acceptable for age verification purposes include:

• Confirmation of credit card (debit card not acceptable) ownership or other form of payment where mandato proof that the holder is 18 or over is required prior to issue.
• A reputable personal digital identity management service which uses checks on independent and reliable database, such as the electoral roll.
• Other comparable proof of account ownership which effectively verifies age.

This is Barnett's response to ATVOD which he has decided to make public for the benefit of the industry.

7 June 2012. To: Pete Johnson, ATVOD

I'm writing further to my letter (sent on behalf of AITA) of 30th March, and also in response to your letter dated 31st May, declaring my company in breach of Rule 11.

Following my March letter, which was an open letter to the ATVOD board, I was invited to present my concerns at the 23rd May Industry Forum meeting, and also attend the board meeting that afternoon to present issues facing the adult industry. I was also told that you would be sending a detailed response following the 23rd May meeting. I did indeed present my concerns at the industry forum, but was told that I was not in fact invited to attend that afternoon's board meeting (I'd received no notification that this invitation had been rescinded). I was told that I would be instead invited to the July board meeting (this hasn't yet been officially confirmed).

I have not yet received your promised response to my letter -- instead, last Friday, I received official notice that my services are considered in breach of Rule 11, and given ten working days to respond. This letter comprises my response to that notice. Please note and respond to the following points:

I made clear in my last letter and at the Industry Forum meeting that I would not be able to operate my VoD business within the UK if Rule 11 is imposed as you have designed and interpreted it. I consider Rule 11 to be punitive; it effectively makes it impossible to run a adult web site in the UK, even though it breaks no UK law. This raises legal implications, which will require further exploration (I'm informed that a measure similar to Rule 11 was struck down by the US Supreme Court on grounds of free speech). Given that the issues raised in my last letter are still (in theory) under discussion, and I've been (I'm told verbally) invited to present these issues to the July board meeting, this raises an issue of timing: how can my VoD business be forced offshore in June while this discussion is ongoing? I therefore request that you postpone enforcement of the notice until at least after the ATVOD board meeting in July. Please be notified that I intend to move the editorial side of the VoD business out of the UK, probably to another EU country, by the end of this month. As I've said previously, our VoD business is in decline, and the future focus of my operation will be on adult phone chat, webcam and other social-media services. My currently employed Content Manager is leaving my employment on 12th June. Although my company will no longer be an ATVOD-notified ODPS, I plan to continue representing the UK adult industry at ATVOD industry forum meetings on behalf of AITA.

I would like to further ask the following questions:

You have been informed by multiple businesses within the UK adult industry that Rule 11 is punitive, and cannot be implemented without seriously damaging or destroying existing, legal businesses. Have you sought an opinion on whether it is in fact legal to knowingly drive our industry out of business or offshore? If so, please share this with ourselves and the Industry Forum. The ATVOD definition of TV-like appears to be very different from the definition chosen by other EU member states, which have not included adult web sites within the remit. Are you aware of any other EU countries that have followed the same path as the UK regulator in this regard? You have come to the decision that legal adult content may seriously impair under-18s. I request that you publish all expert opinion and academic research that was utilised in reaching this decision.

J Barnett

Managing Director,

Strictly Broadband Ltd.

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.

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.