The Regulation of Pornography on Video-on-Demand in the UK
Julian Petley
In this article it is my intention to show how the British government, Ofcom and The
Authority for Television on Demand (ATVOD) have interpreted the requirement in
the European Union’s Audio Visual Media Services Directive (AVMS) which states
that anything on video-on-demand services that might seriously impair the physical,
mental or moral development of minors must be made available only in such a way as
to ensure that minors will not normally hear or see such services. By EU standards,
the approach adopted has been a strict one (as Ofcom itself appears to admit in the
quotation on page 14 below) raising questions about whether the UK authorities have
gone beyond the requirements of the Directive, and thus whether their policies need
underpinning by new legislation at the national level. But this in turn poses further
questions about the desirability of such legislation, its compatibility with Article 10
of the European Convention on Human Rights, which contains the right (albeit a
qualified one) to freedom of expression, the advisability of driving abroad the
providers of “adult” on-demand services, and the practicability of attempting to
regulate trans-national media traffic in an increasingly online world in which
standards of acceptability vary widely from one country to another.
From the TVWF to the AVMS Directive
On 13 December 2005, after a lengthy consultation process, the European
Commission adopted the AVMS, and on 29 November 2007 this was adopted in turn
adopted by the European Parliament. It entered into force on 19 December 2007. This
significantly revised the Television Without Frontiers Directive (TVWF), in force
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since 1991, whose purpose was to protect and strengthen the television industries of
EU Member States. (For a detailed account of the development of the Directive see
Collins 1994: 53-72). In order to do this it attempted to harmonise the European
television landscape by making it possible for television broadcasters to operate
freely and legally across the frontiers of the EU internal market. Broadcasters would
still, of course, have to comply with the laws and regulations of the Member State in
which they were based, but these would henceforth have to include a minimum set of
common rules and standards. These included the stipulation that, where practicable,
Member States must ensure that broadcasters within their jurisdiction reserved a
majority proportion of their airtime for television programmes produced in the EU,
and also laid down certain ground rules concerning advertising, sponsorship and the
protection of minors. In this last respect, Article 22 of the Directive states that
“Member States shall take appropriate measures to ensure that television broadcasts
by broadcasters under their jurisdiction do not include programmes which might
seriously impair the physical, moral or mental development of minors, in particular
those that involve pornography or gratuitous violence” (http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1989:298:0023:0030:EN:PDF).
The AVMS Directive came into being in order to take into regulatory account the
numerous technological developments which had occurred in the media sphere in the
years following the adoption of the TVWF Directive, and in particular the processes
of convergence facilitated by the arrival of new forms of media. Clearly, it was no
longer adequate to have rules which applied only to programmes which were
broadcast on television, since television content was increasingly available online, as
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was a great deal of other audiovisual content, which was largely unregulated. As
Jonathan Hardy has explained:
The Commission’s stated aim has been to establish a modern, pro-competitive
framework for TV and TV-like services to take account of rapid changes and
convergence in technologies and services, with the addition of internet TV, TV on
mobile phone devices, the expansion of pay-TV, on-demand services and new
advertising methods. (2008: 160)
Linear and non-linear services
One of the most significant changes introduced by the new Directive is the extension
of the scope of regulation to certain on-demand services. In this respect, it introduces
an important distinction between what it calls linear and non-linear services. The first,
which is largely television in its original form, Article 1(1)(e) defines as “an
audiovisual media service provided by a media service provider for simultaneous
viewing of programmes on the basis of a programme schedule”. The second consists
of on-demand services, which Article 1(1)(g) defines as audiovisual services
“provided by a media service provider for the viewing of programmes at the moment
chosen by the user and at his individual request on the basis of a catalogue of
programmes selected by the media service provider”. It is important to understand
that the non-linear category does not include all audiovisual material which is not
regarded for the purposes of the Directive as television, but is intended to cover only
services which are “television-like” in that, as Recital 17 of the Directive puts it,
“they compete for the same audience as television broadcasts, and the nature and the
means of access to the service would lead the user reasonably to expect regulatory
protection within the scope of this Directive.” And, as we shall see, given the
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insistence on the part of the British government, Ofcom and ATVOD that certain
kinds of on-demand content fall within the ambit of the Directive, it is also important
to note at this stage that Article 1(1)(b) of the Directive defines a programme as
a set of moving images with or without sound constituting an individual item within a
schedule or a catalogue established by a media service provider and the form and
content of which are comparable to the form and content of television broadcasting.
Examples of programmes include feature-length films, sports events, situation
comedies, documentaries, children’s programmes and original drama.
Put simply, the regulations governing linear services are similar to those contained
in the TVWF Directive, whilst those governing non-linear services are lighter than
those governing linear ones, although still stronger than the pre-2007 position in
which the EU E-Commerce Directive and general laws on obscenity and the like were
the only forms of regulation. Take, for example, the rules governing the protection of
minors, which are key to the subject of this article. In the case of linear services,
Article 27 states:
Member States shall take appropriate measures to ensure that television broadcasts by
broadcasters under their jurisdiction do not include any programmes which might
seriously impair the physical, mental or moral development of minors, in particular
programmes that involve pornography or gratuitous violence.
However, when it comes to non-linear services, Article 12 lays down that:
Member States shall take appropriate measures to ensure that on-demand audiovisual
media services provided by media service providers under their jurisdiction which
might seriously impair the physical, mental or moral development of minors are only
made available in such a way as to ensure that minors will not normally hear or see
such on-demand audio- visual media services (http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:095:0001:0024:EN:PDF).
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“Inappropriate and disproportionate regulation”
Given the importance which, as we shall see, the British government, Ofcom and
ATVOD have attached to the enforcement of Article 12, it is worth noting at this
point that, in the process leading up to the coming into being of the AVMS Directive,
the British government, in alliance with Ofcom and powerful corporate media
interests, led the way in lobbying against widening the scope of its predecessor, on
the grounds that if broadcasting-type rules were applied to the contents of the new
media this could stifle their commercial development. Thus in July 2005 at the
Westminster eForum “Television Without Frontiers: the UK Stakeholder
Perspective”, Chris Bone, Head of the International Branch of the Broadcasting
Policy Division of the Department of Culture, Media and Sport (DCMS), argued that
any suggestion that “all audiovisual network commercial services – the net, mobile
etc., all the new media, all the e-media – should be covered by a wholly new tier of
EU regulation” was a “pretty radical proposal. It’s one we have concerns about”
(quoted in Williams 2007: 34). The following September, at an audiovisual
conference in Liverpool entitled “Between Culture and Commerce”, the Ofcom
chairman, Lord Currie, noted that his organisation’s view was one of scepticism about
the case made for the extension of the TVWF Directive,
in so far as it seeks to extend regulation to services currently in their infancy, and
concern about the practicalities involved. We also, as the statutory body charged with
the promotion of media literacy in the UK, start with a preference for finding solutions
rooted in consumer empowerment through the exercise of informed choice
(http://media.ofcom.org.uk/2005/09/21/introductory-remarks-at-the-liverpoolconference-on-the-review-of-the-eu-television-without-frontiers-twf-directive-21september-2005/?lang=cy).
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And, the same month, in its response to the Commission, Ofcom stated that that it
shared “the view of the broadcasters, transmission companies and internet providers
that any measures would be premature at this stage and believe strongly that this
would risk hindering the development of new services”. It continued:
This is particularly important in the context of the Commission's own i2010 initiative
which is looking to the communications sector to deliver significant efficiencies and
growth. Any attempts to impose inappropriate and disproportionate regulation on this
sector will seriously impair the ability of this sector to meet the Commission's own
aspirations. (http://www.dtg.org.uk/news/news.php?id=1308)
Then, at the Oxford Media Convention in January 2006, the Secretary of State for
Culture, Media and Sport, Tessa Jowell, stated that the draft Directive would threaten
wealth creation “by imposing a highly bureaucratic regulatory framework” and
argued that EU law makers had to “ensure that the regulatory environment sponsors
and favours growth” (quoted in Williams 2007: 35). Later in the same month James
Purnell, Minister for the Creative Industries at the DCMS, speaking at a seminar at
the Foreign Policy Centre, warned that the EU “should not force member states to
regulate in a way that will in practice be unenforceable or would discourage the
growth of e-services in the EU” (quoted in ibid.). Similarly, at a second Westminster
Media Forum, “From Television Without Frontiers to the Audiovisual Services Media
Directive”, on 26 June 2006, the DCMS minister Shaun Woodward compared the
proposed new Directive to the Common Agricultural Policy and declared that
we must be mindful of the lessons of the past and avoid creating (albeit with the best
intentions) a sclerotic, anti-competitive structure that will restrict EU growth, hamper
the development of the new media industries – both linear and non-linear – and do
enormous harm in the process. (Quoted in ibid.: 36)
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The above quotations offer ample evidence of government and Ofcom hostility to
widening the scope of the TVWF Directive, hostility which clearly derives from a
neo-liberal impulse to promote competition in and “deregulation” of the media
industries, new and old. But, as I have noted elsewhere (Petley 2011a), this impulse
by no means stretches to the contents of those media which it seeks to “liberalise” –
indeed, quite the reverse is the case, as I will attempt to demonstrate.
A co-regulatory approach
The AVMS Directive requires that Member States regulate video-on-demand either
directly or through a co-regulatory system. In 2008, the British government consulted
on its proposals for implementing the Directive and, on 11 March 2009, the Secretary
of State for Culture Media and Sport published a written statement on the
implementation of the Directive, making clear the government’s intention to limit
the scope of UK regulation to the narrow range of video-on-demand services falling
within the scope of the AVMS Directive, that is, only those services that include
programmes similar to those available on broadcast television. The Government also
made clear that Ofcom would be given powers to regulate UK video-on-demand
services under a regulatory framework that would enable Ofcom to designate
functions to a co-regulatory body.
On 14 September 2009, Ofcom published a consultation paper which laid out the
basis on which it proposed to fulfil its statutory duties relating to the regulation of
video-on-demand. Subsequently, on 18 December 2009, Ofcom published the report
The Regulation of Video on Demand Services
(http://stakeholders.ofcom.org.uk/binaries/consultations/vod/statement/vodstatement.
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pdf). This announced that, as a result of the implementation of the AVMS Directive
into UK legislation had been “the power to designate particular functions relating to
the regulation of VOD services to any corporate body that Ofcom is satisfied meets
the statutory criteria for designation” (7), and that, accordingly, it would “work
towards adopting a co-regulatory approach to the regulation of video on demand
editorial content” (ibid.: 1)
From the start, The Association for Television on Demand (ATVOD) had been
suggested as a possible partner in the co-regulation process, and Ofcom had already
signalled its agreement to this idea. ATVOD was initially a self-regulatory body,
established in the run-up to the Communications Act by cable companies and internet
service providers such as NTL and Kingston. In preparation for its designation by
Ofcom, it changed its title from Association to Authority, appointed a new CEO and
Chair of the Board, and also changed the composition of its Board to consist of five
independent and four “non-independent” (that is, industry) members. In March 2010,
Ofcom designated ATVOD as the regulator for video-on-demand. The abovementioned document, The Regulation of Video on Demand Services, explains clearly
the relationship which Ofcom established between itself and ATVOD:
Ofcom’s approach, in principle, to co-regulation of VOD editorial content is, when
powers and duties in this area are granted to Ofcom, to designate the widest possible
range of powers and duties to the co-regulator. Under the relevant legislation, Ofcom
retains such powers and duties in parallel and may act as the appropriate regulatory
authority concurrently or in place of the co-regulator. We therefore anticipate
designating the widest possible range of powers to ATVOD, subject to ATVOD not
being permitted to exercise a certain restricted number of other powers. Powers that
only Ofcom could exercise include: the anticipated power to determine decisions on
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scope referred to Ofcom; and certain powers to impose statutory sanctions (financial
penalties, or suspension/restriction of service): firstly, relating to notification issues,
once notification has become a statutory obligation; and second, relating to potential
contraventions of the Act that might be recorded by ATVOD. (Ibid.: 6)
However, quite how all this new regulatory activity would square with the shortly- tobe-elected Coalition’s “Bonfire of the Quangos” remains distinctly unclear.
“Television-like” material
In the light of later controversies which will be explored below, it is also important to
note that, in this document, Ofcom addressed specifically the question of what
actually constituted “television-like” material on video-on-demand services. As
already noted above, the AVMS Directive cover services which are “television-like”
in that “they compete for the same audience as television broadcasts, and the nature
and the means of access to the service would lead the user reasonably to expect
regulatory protection within the scope of this Directive.” The Regulation of Video on
Demand Services glosses this as “on-demand and broadcast television audio-visual
media services which compete for the same audiences, sharing the same
characteristics, namely that they include comparable programmes” (ibid.: 75). It also
slightly paraphrases the Directive by referring to programmes which are “comparable
to the form and content of programmes included in broadcast television services”
(ibid.: 76).
The AVMS Directive was implemented into UK legislation on 19 December 2009
by the Audiovisual Media Services Regulations 2009. These introduced a new Part
4A into the Communications Act 2003, whose provisions included the setting up of a
framework for the regulation of video-on-demand services. Under section 368A(1)
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of the amended Act, a service is an on-demand service, and thus falls within
ATVOD’s remit, if:
(a) its principal purpose is the provision of programmes the form and content of which
are comparable to the form and content of programmes normally included in television
programme services;
(b) access to it is on-demand;
(c) there is a person who has editorial responsibility for it;
(d) it is made available by that person for use by members of the public; and
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the
Audiovisual Media Services Directive.
(http://www.legislation.gov.uk/uksi/2009/2979/regulation/2/made)
Serious impairment
Section 368E(2) of the amended Communications Act, entitled Harmful Material,
states that: “If an on-demand programme service contains material which might
seriously impair the physical, mental or moral development of persons under the age
of eighteen, the material must be made available in a manner which secures that such
persons will not normally see or hear it”
(http://www.legislation.gov.uk/uksi/2009/2979/regulation/2/made).
On 1 April 2010, the DCMS wrote to Ofcom, pointing out the new requirements
in the Communications Act 2003 under Section 368E(2), and asked if Ofcom would
report to government on the position under the current video-on-demand regulations.
The contents of the letter can be gleaned from Ofcom’s subsequent report, Sexually
Explicit Material and Video on Demand Services
(http://stakeholders.ofcom.org.uk/binaries/internet/explicit-material-vod.pdf), which
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was published on 4 August 2011, although it is interesting to note that it had actually
been sent to the DCMS by Ofcom on 12 October 2010.
The report noted that in its letter to Ofcom, the DCMS had raised concerns about
whether the new provisions of the Communications Act, namely Section 368E(2),
would provide sufficient safeguards to protect children from sexually explicit
material, or whether greater safeguards might be appropriate for such material which
is made available via on-demand services. The DCMS had recommended that a
“precautionary” approach should be taken, on the grounds that it
• would be generally supported by the public, given the nature of the material in
question and the need to protect minors;
• would be consistent with the tough constraints which Parliament has already
placed on the distribution of sexually explicit material in hard copy form as a film or a
DVD (i.e. material classified as R18 by the British Board of Film
Classification)i;
• would also be consistent with the approach Ofcom has taken on the provision of this
material on television under its Broadcasting Code. (1)
The letter also indicated that the government’s main concerns were the extent of the
protection for children provided by Section 368E(2) of the Communications Act, and
in particular:

what level of risk of harm is posed to children by the provision of hardcore
pornography (whether R18 equivalent or stronger material) via a VOD service?;
 the adequacy of that protection, in light of relevant research and academic literature
concerning the risks posed by, and the effectiveness of means of restricting access to,
pornography provided via VOD services, and in particular: what are the most
appropriate ways of ensuring that children do not normally access this material by
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means of UK-based VOD services?;

the approaches adopted in other EU territories; and

whether further regulatory intervention might be appropriate, and if so, what
regulatory options would be appropriate. (Ibid.: 2)
What the report does not mentionii, however, is that the final paragraph of the
DCMS letter notes that:
We understand that a study which Ofcom undertook some years ago – when the
availability of the relevant material was less than today – noted evidence that the
viewing of pornography by children might pose a risk to their ability to form future
healthy relationships. That plainly chimes with some of the findings of Linda
Papadopoulos’s recent review for the Home Office of the Sexualisation of Young
People, and it too is something that we would imagine you would wish to take into
account.
It’s hard not to read this as a distinct nudge in the “right” direction, although it should
also be pointed out that the earlier report mentioned here, which is R18 Material: Its
Potential Impact on People under 18: an Overview of the Available Literature
(http://stakeholders.ofcom.org.uk/binaries/research/radio-research/r18.pdf), and which
is discussed in Petley (2011a), also concluded that “there is no empirical research that
proves beyond doubt that exposure to R18 material seriously impairs the mental or
physical development of minors” (4). It should also be noted that the Papadopoulos
report has been criticised for its failure to establish any critical distance from existing
bodies of writing on the vexed subject of “sexualisation”, for its substantial flaws of
interpretation, and for its highly negative view of sex, media and young people (Smith
and Attwood 2011).
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Limited and inconclusive evidence
Sexually Explicit Material and Video on Demand Services also included as an annex
Sexually Explicit Material and the Potential Harm to Minors, a review of the
research evidence by Dr Guy Cumberbatch, which updated the review mentioned
aboveiii. This concluded that
The research reviewed in this report does not provide conclusive evidence that sexually
explicit material “might seriously impair” the development of minors.
The research does not provide clear, conclusive, evidence on whether sexually explicit
material might “impair” their development.
Some studies report a pattern of associations between exposure to sexually explicit
material and a range of sexual attitudes and behaviours which have typically been taken
as problematic (for example, greater sexual permissiveness, stronger beliefs that
women are sex objects, lower sexual satisfaction, earlier sexual activity, higher
probability of anal intercourse). However, these associations could equally support the
idea that those with particular attitudes and values are drawn to sexual media.
The empirical evidence for harm is weak and the research is very limited, so it cannot
be confidently concluded that sexually explicit material carries no risk to minors. (2)
However, it is difficult to read Ofcom’s comments on Cumberbatch’s research
without feeling that it is seeking justifications for its actions on extremely slim
grounds. Thus in the case of R18 material it states that:
Dr Cumberbatch questions the methodology of the studies that do indicate some
form of link between what some researchers regard as less severe types of harm and
consumption of sexually explicit material. He notes for example that many of these
studies fail to distinguish clearly between the kinds of material to which they are
ascribing effects. However, bearing these caveats in mind, some of the studies do
suggest some evidence – albeit very limited and inconclusive – of harmful effects to
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what can best be described in our view as the moral development of children from their
exposure to sexually explicit material. Ofcom therefore considers that there appears to
be some level of risk of harm associated with children consuming R18 content …
Ofcom also notes there is no conclusive evidence that exposure of children to R18
material causes them no harm. Again this is hardly a matter of surprise. To prove a
negative is frequently very difficult, and it would be especially so in a controversial
area of research such as this. However, in light of its statutory duties and taking
account of the conclusions which may be drawn from the evidence concerning a risk of
harm (see above) and the lack of any conclusive evidence of an absence of harm - and
so an absence of any risk of harm - to young people from R18 material, Ofcom’s view
is that the evidence supports a precautionary approach to policy making in this area.
(Ibid.: 20)
Questionable methodology, very limited and inconclusive evidence, attempts to prove
a negative … is this really a sound basis policy making, even if it’s qualified as being
only a precautionary approach?
The report notes that Ofcom had surveyed 20 countries (15 of which were EU
members) in order to discover how they regulate material which “might seriously
impair” minors’ development. They found that European approaches to implementing
the Directive and protecting children from sexually explicit content varied
significantly, as did definitions and terminology in the area of sexual content. More
specifically:
Most countries have no detailed definitions of what material “might seriously impair”
the development of minors. Further, no country has found conclusive evidence that
sexually explicit material harms children. Moreover, although most countries do not
consider that sexually explicit material broadly equivalent to R18 material “might
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seriously impair” minors, the same countries have decided to impose restrictions on
such material on VOD. Where these countries have restricted access to sexually
explicit material on VOD, they have rarely relied on the exact wording of the Directive
alone. Rather they have relied on other existing legislation in their countries or they
have introduced new legislation (accompanied by regulatory guidance) to provide
certainty in this important area. (Ibid.: 3)
Ofcom recommends new legislation
In addition to these considerations, Ofcom also pointed out that, in relation to R18
material:
• Ofcom has a statutory duty under Section 3 of the Communications Act 2003 to
further the interests of citizens and consumers and in doing so, to have regard to the
vulnerability of children (and others whose circumstances appear to Ofcom to put them
in need of special protection);
• that the public (including parents) consider that whilst those who wish to should have
access to pornography, access to this material should be restricted in such a way that
children cannot see it ….
• the absence in the current regulations of a clear standard requiring sexually
explicit material of R18 standard (or its equivalent) to be prohibited, in VOD
services, unless it is made subject to restrictions;
• the Government’s clear intention to ensure protection of children from sexually
explicit material on UK-based VOD services; and
• the value of adopting a precautionary approach to protecting minors from the risk of
harm from accessing R18 material (and material stronger than R18) on UK-based VOD
services. There is clear evidence that the public (and in particular parents) support a
precautionary approachiv. (Ibid.: 4)
Meanwhile, in relation to material stronger than R18, Ofcom made clear that it had
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regard to the following considerations:
• content stronger than R18 material encompasses a wide variety of unclassified
material which cannot legally be supplied in the UK in licensed sex shops and
includes abusive and/or violent pornography, examples of which have been held
to be obscene and a criminal offence to provide, if accessible by children;
. this material is acknowledged to be potentially harmful or very harmful to adults,
particularly those who are vulnerablev; yet
• the current legislation does not clearly prohibit it from VOD Services. (Ibid.: 4-5)
On the basis of all of the above considerations, Ofcom thus recommended that
the government introduce new legislation which would “prohibit R18 material from
being included in UK-based VOD services unless appropriate mandatory restrictions
are in place; and prohibit altogether from UK-based VOD services material whose
content the BBFC would refuse to classify i.e. material stronger than R18” (ibid: 53).
The report also noted that
ATVOD supports this recommendation. It does so on the basis that there is no clear
consensus on the meaning of “material which might seriously impair.” Although
ATVOD considers that R18 material might seriously impair under-eighteens, it
recognizes that there is some lack of certainty on this point. In order to ensure that
children have appropriate protection from R18 and R18 plus material, ATVOD
believes that any uncertainty that exists under the current regulations should be
removed as soon as possible through new legislation. (Ibid.: 53-4)
Ofcom itself offered the view that:
Legislation along these lines – including a prohibition of material stronger than R18 –
could be made sufficiently precise and certain to capture relevant material. It could
provide an appropriate balance between the need to protect young people (and indeed
other vulnerable groups) from unsuitable pornographic material while respecting the
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right to freedom of expression of VOD Service providers and their audience. In the
circumstances, it seems to us that prohibiting material stronger than R18 absolutely
from VOD services would be a legitimate restriction of freedom of expression given
the clear risk of harm to minors (and adults) from this material. Also such a prohibition
would give clarity about the protections offered to minors and to the general public
because all such material would be explicitly banned from VOD Services. A decision
as to whether to proceed with any new legislation is of course one for the Government.
However, introducing new legislation along the lines Ofcom recommends would have
a number of advantages. The most important is that it would provide legal certainty,
thus ensuring that under-eighteens in the UK would be unequivocally protected from
content which most people believe is unsuitable for them, and also potentially harmful.
In addition, the regulation of R18 material and the prohibition of stronger material on
VOD Services along the lines proposed would ensure greater consistency with
regulation on other media in the UK, such as DVD, video and broadcasting; and greater
consistency with the way in which this content is being treated in on-demand
programme services in most other Member States. (Ibid: 54)
The precautionary principle
Given Cumberbatch’s conclusions about the paucity of evidence of the effects on
young people of watching sexually explicit material, it might seem surprising that
Ofcom’s considerations in this report revolve so insistently around questions of
“harm”, “vulnerability” and “protection”. In order to understand how it squares this
approach with Cumberbatch’s agnosticism on the vexed question of “effects” it is
necessary to explain what Ofcom means by a “precautionary” approach. In this
respect it explains that the European Commission had provided it with a
Communication on the precautionary principle “which provides, amongst other
things, guidance on factors triggering the principle, when the decision maker is to
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have recourse to the principle and how it should be implemented” (ibid.: 45).
According to the Communication:
The precautionary principle may be invoked when there is a risk of harm to human,
animal or plant health, the environment or for consumer protection, but scientific
evaluation does not allow the risk to be determined with sufficient certainty, and
absolute proof of harm actually occurring is not yet available … In other words there
needs to be a potential negative effect of a product/process but which cannot be
determined for certain based on an evaluation of available information. According to
the Communication, if these conditions are met then the decision maker can take
protective measures despite a full demonstration of risks not being present. (Ibid.: 45-6)
Given that, as noted above, Ofcom had concluded that the available research on
sexually explicit material shows that “some experts believe that there is evidence that
exposure of minors to R18 material can have adverse effects; and that it cannot be
confidently concluded that sexually explicit material carries no risk of harm to the
development of minors”, and that content stronger than that which the BBFC would
pass at R18 is “widely acknowledged” to be “potentially harmful or very harmful to
adults, particularly those who are vulnerable” (ibid.: 46), it therefore argued that the
precautionary principle was triggered by such material.
Crown Prosecution Service guidance
In arriving at its recommendation that the government should introduce new
legislation governing on-demand services, Ofcom, as requested by the DCMS, also
took account of Crown Prosecution Service (CPS) Guidance on prosecuting
potentially obscene publications. The statutory definition of what is obscene is set out
in section 1(1) of the Obscene Publications Act 1959 (OPA), which states that an
article shall be deemed to be obscene if its effect is “such as to tend to deprave and
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corrupt persons who are likely, having regard to all relevant circumstances to…see or
hear the matter contained or embodied it.” Thus soft-core pornographic magazines
sold in newsagents will not be prosecuted if they are on the top shelf, and thus out of
reach of children. Similarly, thanks to a combination of both the OPA and the Video
Recordings Act 1984, R18 DVDs are legal if sold in licenced sex shops, which noone under 18 may enter, but may not be sold in other kinds of shops or by mail order.
Under certain circumstances, then, this consideration could render on-demand
services liable to prosecution, as the CPS guidance makes clear:
Where children are likely to access material of a degree of sexual explicitness
equivalent to what is available to those aged 18 and above in a licensed sex shop, that
material may be considered to be obscene and subject to prosecution. This applies to
material which is not behind a suitable payment barrier or other accepted means of age
verification, for example, material on the front page of pornography websites and noncommercial, user-generated material which is likely to be accessed by children and
meets the threshold. see R v Perrin [2002] EWCA Crim 747. (Quoted in ibid.: 47)
As Ofcom notes, however, the “deprave and corrupt” test in the OPA is different from
the “serious impairment to minors” test in the AVMS Directive, and the successful
prosecution in the Perrin case in fact concerned material which was far stronger than
anything which the BBFC would have passed at R18. It also notes that there has been
no CPS action – either successful or unsuccessful – against any UK-based website or
on-demand service provider for publishing R18 equivalent material which is not
behind a payment barrier or other accepted means of age verification. Consequently,
it concluded,
although we take into account the CPS Legal Guidance, we do not consider that by
itself it might be determinative of whether R18 material provided on a VOD Service
“might seriously impair” minors. If there were a successful prosecution of R18 material
19
based on these specific guidelines, Ofcom would of course review the position. Such a
prosecution would appear likely to be highly relevant, because if someone is
successfully prosecuted for obscenity for providing R18 material on a website without
protections so that children can access it, this would in Ofcom’s opinion, despite the
different legal tests, be strong evidence that such material may “seriously impair”
minors. (Ibid.: 48)
“We are committed to making progress in this area”
On 3 August 2011, the day before the report was finally published, Ed Vaizey, the
Minister for Culture, Communications and Creative Industries, sent a letter to Ofcom
CEO Ed Richards, which was copied to ATVOD CEO Pete Johnson, which noted
that:
Like you, we are quite clear that children should not have access to hard-core
pornography on ATVOD-regulated video-on-demand services. The current rules put in
place by ATVOD requiring access controls on such material should remain in place …
We are committed to making progress in this area, preferably through industry action,
but if necessary through legislation. Any necessary legislation is best taken forward in
the forthcoming Communications Bill.
Vaizey concurred with the Ofcom report and concluded that, in the absence of
conclusive, demonstrable evidence of harm done to children by such material, “there
was a case for taking a precautionary approach and indeed seeking a legislative
opportunity to provide a more certain legal basis for requiring access controls to
protect children. Pending the above-mentioned Communications Review, Vaizey
stated that:
We would appreciate it if Ofcom, with ATVOD, would take any steps necessary in the
interim period to ensure that children remained adequately protected under the ATVOD
20
rules, in the knowledge that we could bring forward Regulations in the short term if it
proved necessary to support this position”vi
Rule 11
In May 2012 ATVOD issued a new edition of its Rules and Guidance
(http://www.atvod.co.uk/uploads/files/ATVOD_Rules_and_Guidance_Ed_2.0_May_
2012.pdf). The relevant rule for our purposes is number 11, which, replicating section
368E(2) of the amended Communications Act, states that: “If an on-demand
programme service contains material which might seriously impair the physical,
mental or moral development of persons under the age of eighteen, the material must
be made available in a manner which secures that such persons will not normally see
or hear it” (11). In its guidance on this rule, ATVOD explains that “‘R18’ material or
‘R18’-equivalent content should only be made available in on-demand programme
services in a manner which secures that persons under the age of eighteen will not
normally see or hear it” (ibid.: 12). It also sets out a list of the kind of material which
“might seriously impair the physical, mental or moral development of persons under
the age of eighteen.” This includes:
· content which is illegal, e.g. criminally obscene or indecent;
· content which promotes illegal or harmful activity;
· highly sexualised portrayals of children ;
· pornographic content which is likely to encourage an interest in sexually abusive
activity, for example through the simulation or description of acts of paedophilia, incest
or non- consensual sexual activity,
- involves an act which may cause lasting physical harm,
- involves an act of penetration by any object associated with
violence or physical harm, or
21
- involves strong physical or verbal abuse.
· sexual violence which endorses or eroticises the behaviour with insufficient
contextual justification;
· portrayals of sadistic violence or torture with insufficient contextual justification;
· graphic images of real injury, violence or death presented with insufficient contextual
justification. (Ibid.: 12-13)
ATVOD explains that material which falls under Rule 11, provided that it is not
illegal, may be made available in an on-demand programme service
provided access is controlled in a manner which secures that persons under eighteen
“will not normally see or hear” such material. ATVOD’s provisional interpretation of
this requirement is that there should be in place an effective Content Access Control
System (“CAC System”) which verifies that the user is aged 18 or over at the point of
registration or access by the mandatory use of technical tools for age verification and, if
age verification does not take place each time the user returns to the service, controls
further access to such content when the user returns to the service by the use of
mandatory security controls such as passwords or PIN numbers.
Technical tools which may be acceptable for age verification purposes include:
· Confirmation of credit card ownership or other form of payment where mandatory
proof that the holder is 18 or over is required prior to issue. (ATVOD will not regard
confirmation of ownership of a Debit, Solo or Electron card or any other card where
the card holder is not required to be 18 or over to be verification that a user of a
service is aged 18 or over).
· A reputable personal digital identity management service which uses checks on an
independent and reliable database, such as the electoral roll.
· Other comparable proof of account ownership which effectively verifies age. (Ibid.:
13)
22
Robust regulation
In January 2013 the DCMS undertook an assessment of the impact of banning content
rated stronger than R18 on video-on-demand. This addressed what it saw as the
problem that, whilst the BBFC banned material stronger than R18 in “hard copy”
formats such as film and DVD, “no legislation mandates that UK Video on Demand
(VOD) services, as co-regulated by the Authority for Television On-Demand
(ATVOD), must ban material of this nature. This has created regulatory
inconsistency, and risks this material being propagated due to technological advances
not foreseen by Parliament”. Furthermore, as “no legislation mandates that VOD
services must protect adults and children from stronger than R18 material, [t]his
imbalance in regulation leaves children and adults potentially vulnerable to harm from
stronger than R18 material”. The assessment’s preferred option was to “ban all access
to material stronger than R18. This would bring regulations for VOD into line with
those for hard copy material”.
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/22587
7/R18_content_access_controls.pdf)
That the government preferred this option was evident the following July when
the DCMS published the report Connectivity, Content and Consumers: Britain’s
Digital Platform for Growth
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/22578
3/Connectivity_Content_and_Consumers_2013.pdf), which was the result of the
Communications Review, although in the final analysis this had amounted to little
more than five seminars, attended mainly by industry representatives, in the second
23
half of 2012 (https://www.gov.uk/government/news/communications-review-nextsteps-announced). In the chapter entitled “Consumer Confidence and Safety” the
report promises to crack down on illegal online content regardless of where it is
found, and to make sure that material that might be harmful or inappropriate is put
behind protections, in order to safeguard children. With regard to on-demand services,
the report notes that:
In hard copy, content rated R18 by the British Board of Film Classification (BBFC) is
only available in licensed sex shops and content that was even stronger is banned
outright. The VOD regulations in this area do not currently provide the same level of
certainty and protection as on the high street. As on-demand services become
increasingly prevalent we want to make sure that regulation of on-demand content is as
robust as regulation of content on a DVD, bringing the online world into line with the
high street. We will legislate to ensure that material that would be rated R18 by the
British Board of Film Classification is put behind access controls on regulated services
and we will ban outright content on regulated services that is illegal even in licensed
sex shops. (Ibid.: 35)
Thus the government appears to regard the ATVOD system of regulation as a form of
digital Video Recordings Act – something which goes way beyond any requirements
of the AVMS Directive and, indeed, is enforceable only against UK-established
providers, because other EU states would continue to transpose the Directive in its
original form, and those services would then (normally) be legally available within
the EU, with limited options open to the UK to prevent UK consumers from accessing
these services.
ATVOD in action
24
In the meantime, however, ATVOD had already begun to take action against ondemand service providers which it found to be in breach of Rule 11. Thus in February
2012 it revealed that it had determined that Bootybox.tv had breached the rule by
offering users unrestricted access to explicit hardcore porn promos/trailers which
were of R18 strength. Furthermore, access to the full videos was open to any visitor
on payment of a fee which could be transacted by methods including debit cards and
prepaid vouchers, which can be used by under 18s. ATVOD followed up its ruling
with an Enforcement Notification, requiring Bootybox.tv either to remove the
hardcore pornographic content from the service or to put it behind effective access
controls which would ensure that only adults could see it. However, the service
ceased operating prior to the expiry of the ten day deadline set in the Notification
(http://www.atvod.co.uk/news-consultations/news-consultationsnews/20120201bootybox-determination).
At around the same time as publishing its determination in the case of
Bootybox.tv’, ATVOD invited all providers of adult on-demand services to attend a
seminar on Rule 11 in order to ensure that they were clear about their responsibilities
under the amended Communications Act. Following this, it launched investigations
into all providers of notified online services which offered ‘adult’ content to ensure
that they were compliant with Rule 11. And in December it published the results of
research which it had commissioned from ICM Research. This found, inter alia, that
88 per cent of British adults think it is important that UK websites offering porn ondemand are required to take the steps set out in the ATVOD Rules and Guidance, and
that 69 per cent say that the measures required by ATVOD are very important. But
ATVOD also took this opportunity to express its concern that most porn on-demand
25
services available to UK internet users operate from outside the UK, thus putting
them beyond UK regulation. It therefore called for more to be done to protect UK
children from hardcore porn on non-UK services, and encouraged 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, which appear to operating in
breach of the Obscene Publications Act – for instance, payment processors.
(http://www.atvod.co.uk/news-consultations/news-consultationsnews/20121203porn-and-hatred-online)
Targeting the banks
On 28 January 2013, the Mail duly reported that ATVOD had urged the culture
secretary Maria Miller to target banks and payment processors which facilitate the
provision to UK consumers of hardcore pornography without age verification. The
Mail estimated that the payments for VOD services amount to more than £180m
annually. Under the proposal, banks and other payment processors would receive a
blacklist of all non-UK companies which make pornography available via VOD
without proper age verification, and the banks would then themselves be responsible
for ensuring that no British customer could make a payment to any of these
companies. And, sure enough, in June 2013 Pete Johnson announced that he was
26
discussing with processors the possible blocking of payments to non-UK websites that
offer hardcore porn without age verification barriers, on the grounds that they could
be breaking the OPA. At the Westminster e-Forum conference he told on-demand
service providers that:
If you're offering [hardcore porn] in your shop window, you're breaking U.K. law.
Even if you're not in the U.K., you're breaking U.K. law because our children can
access it. Therefore your shop is trading illegally. Therefore funds should not be
flowing from the U.K. to your shop, because your shop is fundamentally operating in
an unlawful capacity.
He also brought up the blacklist idea mentioned by the Mail and revealed that
ATVOD had already discussed this possibility with the UK Cards Association, which
comprises Barclays, Capital One, American Express and WorldPay.
(http://www.xbiz.com/news/164203)
What needs to be made clear here is that although the majority of pornographic
sites offer a certain amount of material free of charge, this is largely in order to
encourage the user to pay to see a great deal more, and often stronger, material.
ATVOD wants this free material to be available only to those who have verified, by
means of entering their credit card details, that they are over 18. Should a site not
have this mechanism in place, then banks and payment processors would refuse to
handle funds resulting from its users viewing material which they have to pay for.
Rule 11 starts to bite
When on 8 July 2013 ATVOD published its Annual Report 2012/13
(http://www.atvod.co.uk/uploads/files/Annual_Report_2013.pdf) Johnson took this
27
opportunity to note that 16 services, operating across 26 websites, had been found to
be in breach of Rule 11 in 2012-13 because they featured hardcore porn material
which could be accessed by under 18’s, either because this material consisted of free
promos/trailers, or because payment for non-free material could be made by means
other than a credit card, or both. The offending services were:

Brit Porn Network - Brit Porn Supersite

Brit Porn Network – British Spanker

Brit Porn Network – British Amateur Multisite

English Milf

Paul Raymond

PlayboyTV

Demand Adult

Rosewoodxxx

Strictly Broadband

UK Pussy Talk

Black Vixen

UK Vixens

Sexy UK Pornstars

Splat Bukkake

UK Porn Party

Abused Piggy

GSpot Productions

Studio66
Of the 16 services, ten made changes to bring the service into compliance and three
closed. (Details of ATVOD’s determinations in these cases may be found at
28
http://www.atvod.co.uk/complaints/determinations/2013-determinations). The
remaining three – Playboy TV, Demand Adult and Strictly Broadband – were
referred to the back-stop regulator Ofcom, which imposed financial penalties of
£35,000, £65,000 and £60,000 respectively. (Details of Ofcom’s determinations in
these cases may be found at http://www.ofcom.org.uk/about/annual-reports-andplans/financial-penalties/financial-penalties-imposed-for-the-period-2012-13/).
The report also revealed that ATVOD had provided the government with a
detailed briefing on the above-mentioned policy options for protecting children more
effectively from pornography on on-demand services. The main problem was that, as
ATVOD Chair Ruth Evans noted, ‘not all EU Member States apply the common rules
to the same standard as ATVOD’ (5). This meant that material which might be legal
in one EU country could be deemed to be illegal if accessed by children in the UK.
This in turn provided those UK companies distributing such material with an
incentive to move elsewhere in the EU, whilst still carrying on supplying UK
customers. As the report itself notes:
ATVOD has seen a number of examples in which it is claimed that editorial
responsibility for a service has been transferred from a UK provider to an entity outside
the UK, for example through the sale of the website, while the UK entity continues to
supply content to the service. Although ATVOD requires evidence that any such
transfer of editorial responsibility is genuine, it is clear that moving is an option for
services which seek to avoid the obligations placed on UK providers. (15-16)
Hence, of course, the attraction for ATVOD of the blacklist option mentioned above.
This raised its head once again, on 19 September 2013, when the Telegraph
announced that “websites which fail to stop children accessing pornography will have
29
payments to them blocked by banks and credit card companies as part of a
government plan to help clean up the internet”, and that a “summit” between ATVOD
and the UK Cards Association, the British Bankers’ Association and the Payments
Council would be held in an effort to reach an agreement on this matter. (This was
held on 10 October). Linking this with the government’s determination to require
Internet Service Providers (ISPs) to deny customers access to “adult” material unless
they specifically opted to have it made available, the article continued:
Now it is also hoped that a voluntary deal with credit card firms will tackle sites that let
children see pornography. But government sources have made it clear that ministers
would be prepared to consider legislation, if necessary. Ministers have previously
announced measures to help the police and other crime fighting agencies tackle illegal
child pornography. Credit card companies already monitor illegal pornographic
websites and liaise with the authorities. But this would be the first time they have
agreed to punish sites that show images that are legal, but that do nothing to keep them
from children.
Damian Green, the minister for policing and criminal justice, was quoted as
supporting the scheme.
(http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/10322072/Banks
-to-block-internet-porn-sites.html)
Actions by ATVOD against ten more on-demand services under Rule 11 were
announced on 20 September. These were

Absolute Cruelty

Belted by Beauty

Bitch Slapped

CFNM
30

CMNM

Frankie and Friends

Jessica Pressley

The British Institution

The Casting Room

Young Dommes.
As a result, five services took steps to comply with Rule 11, one service (Jessica
Pressley) was referred to Ofcom for consideration of a sanction, one service ceased
providing video content, and control over the remaining three services was claimed to
have been transferred to a Dutch company, which would put them outside ATVOD’s
remit, even though they would still be accessible from the UK. (One of these services
subsequently closed).
In this last respect it’s worth noting that on 23 September 2013, Playboy TV
UK/Benelux Limited won its appeal to Ofcom against ATVOD’s ruling that Playboy
TV was still an on-demand programme service for the purposes of the amended
Communications Act. Ofcom accepted Playboy TV’s argument that they had moved
editorial control of and responsibility for the service to Montreal, Canada. Paragraph
31 of Ofcom’s judgement states:
Ofcom considers, in line with ATVOD’s finding, that whilst a limited number of
individuals within the UK business continue actively to be involved in the provision of
the Service in this particular case Ofcom also accepts there was a genuine reallocation
of responsibility within the corporate group. Key individuals were made redundant in
the UK and their responsibilities were taken on by individuals in Canada in the employ
of Playboy Plus Entertainment Inc.
(http://stakeholders.ofcom.org.uk/binaries/enforcement/vod-services/playboy-tv.pdf)
31
The way in which the UK authorities have decided to implement the AVMS
Directive in the matter of regulating on-demand material which might “seriously
impair” minors raises a whole host of questions and problems, and I will now attempt
to deal with the most pressing of these.
Less fortunate, however, was the Jessica Pressley service which, on 7 October,
had its right to provide its service, or any other service, suspended by Ofcom, for
continuing to breach editorial content rules. Ofcom pointed out that this action
demonstrated that non-compliance with enforcement by ATVOD would be dealt with
swiftly and that it would be willing to take similar measures against other providers in
order to secure their compliance in the future.
Regulating trans-national media flows
Firstly, this issue vividly demonstrates the difficulties raised by trying to regulate
trans-national media flows in a world in which an ever-increasing amount of traffic
takes place online but which is also a world in which standards of acceptability vary
widely from one country to another. This is evident from Chapter 4, “The Position in
Europe”, of Sexually Explicit Material and Video On Demand Services, from which it
is also clear (even if it is not explicitly stated) that Britain operates with standards at
the strictest end of the spectrum. This, however, has not discouraged ATVOD from
urging the British government to “work to secure changes to the Audiovisual Media
Services Directive to require all Member States to ensure that media services within
their jurisdiction keep hardcore porn out of reach of children (thereby mirroring the
action taken by ATVOD in the UK)”
(http://atvod.co.uk/uploads/files/For_Adults_Only_FINAL.pdf). The idea that the UK
32
government might work to ensure that its media regulations in this area are brought
more into line with norms prevailing elsewhere in the EU is, of course, utterly
inconceivable.
British companies specialising in providing pornographic material via video-ondemand have taken advantage of these varying standards of acceptability by moving
abroad and thus escaping ATVOD, effectively transforming themselves into foreign
companies – with, of course, a subsequent loss of British jobs (vide the Playboy
example above) and tax revenues. Indeed, there is barely anything left of the
specifically “adult” video-on-demand industry in Britain. As Jerry Barnett, a former
adult VOD operator and founder of sexandcensorhip.org, points out: “My own
business was paying around £50,000 a year in VAT and £200,000 in taxable salaries
before it was forced to close. The simple reality is this: no independent hardcore adult
website operator can implement ATVOD’s Rule 11 and stay in business”vii But now,
as we have seen, ATVOD has proposed that foreign (that is, non-EU) companies
which make pornographic material available on-demand to audiences without
adequate age checks, usually as a form of ‘loss-leader’ for their commercial services,
should be blacklisted by banks and payment processors, which might well put them
out of business. This is because the British market for online porn is a particularly
lucrative one – not because the British are particularly porn-obsessed but because the
amount of hard-core porn legally available in the UK, that is, from licenced sex shops,
is actually very limited by EU standards. Many local authorities refuse to licence sex
shops at all, and the strictness of the BBFC’s R18 guidelines means that many hard
core DVDs which are perfectly legal elsewhere in the EU may not be sold here, or
may be sold only in censored form. This applies particularly to much BDSM material.
33
Meanwhile, the idea floated via the CPS guidelines that on-demand material
hosted abroad, which is legal in its country of origin, and indeed legal in the UK if
watched by adults, could be prosecuted under the Obscene Publications Act because it
might be watched by children in the UK, seems far-fetched in the extreme, even by
British standards. However, the only way for this issue to be resolved would be for
the CPS to bring a test case against such material - in the face, one would imagine, of
incredulous and outraged international reaction, not least from US providers, used as
they are to strong First Amendment protection.
Lack of legal certainty
This brings us on to the second point, namely a lack of legal certainty and clarity
surrounding this whole matter. The Ofcom report Sexually Explicit Material and
Video on Demand Services, the DCMS impact assessment, and Connectivity, Content
and Consumers all clearly suggest, in different ways, that the approach of considering
both R18 material and stronger than R18 material as meeting the “might seriously
impair” standard may be beyond the AVMS Directive and, as such, may need
additional legislation at the national level. To recap briefly, Ofcom pointed out “the
absence in the current regulations of a clear standard requiring sexually explicit
material of R18 standard (or its equivalent) to be prohibited, in VOD services, unless
it is made subject to restrictions” (4) and noted that, even in the case of material
stronger than R18, “the current legislation does not clearly prohibit it from VOD
Services” (ibid.: 5). It thus recommended that the government introduce new
legislation which would “prohibit R18 material from being included in UK-based
VOD services unless appropriate mandatory restrictions are in place; and prohibit
34
altogether from UK-based VOD services material whose content the BBFC would
refuse to classify i.e. material stronger than R18” (ibid: 53). This placed the ball
firmly back in the government’s court but Ed Vaizey at the DCMS then returned it,
noting that: “We are committed to making progress in this area, preferably through
industry action, but if necessary through legislation. Any necessary legislation is best
taken forward in the forthcoming Communications Bill.” Forthcoming, that is, in
2015 at the earliest. As the history of the BBFC [deletion] demonstrates, British
governments generally do not like to appear to be playing the censor and are far
happier when they can instigate apparently “self-regulatory” systems in which they
nonetheless play a key role, albeit very much behind the scenes (Petley 2011b). One
does wonder, however, if it was the government’s unwillingness to grasp this
particular legislative nettle, presumably in the interests of not wanting to alienate the
more powerful on-demand providers, which caused it substantially to delay giving
Ofcom permission to publish its report. Furthermore, if there is such agreement that
new legislation is needed, why are ATVOD and Ofcom taking action based on
legislation that they freely admit may not actually give them the power to do so?
“Television-like”, or not?
Third, there is the question of whether R18 material on video-on-demand services
can properly be described as “television-like” in the UK. In this context, it’s important
to note that Sexually Explicit Material and Video on Demand Services addressed the
question of whether services which supplied only films would fall within ATVOD’s
remit:
We note the argument put forward that services making available feature film content
35
would fall outside of scope under the statutory criteria. However, we note that as
feature film content commonly appears on linear television channels (including whole
channels devoted to feature films), it would not be appropriate or logical to deem such
content as being not “television-like” for the purposes of decisions on scope. (Ibid.: 30)
It also pointed out that programmes which are “comparable to the form and content of
programmes included in broadcast television services” (ibid.: 76) fall within the scope
of the Directive. But there is a major problem here in that, as I have demonstrated in
detail elsewhere (Petley 2011a), Ofcom resolutely refuses to allow even R18 material,
whether in feature film form or any other form, to be shown on linear channels, even
if they are encrypted or PIN protected. This is because Ofcom regards these
safeguards as insufficiently effective. Thus opponents of Ofcom’s and ATVOD’s
actions in this matter have argued (albeit unsuccessfully, as noted below) that, in a
UK context, films which are provided on-demand and which feature hard core
pornography are not “television-like” as such films cannot legally be shown on
broadcast television here.
Indeed, this, among other things, was precisely what Playboy TV argued in its
(unsuccessful) appeal against a determination by ATVOD that its service Climax 3
Uncut contravened section 368BA of the Communications Act
(http://stakeholders.ofcom.org.uk/binaries/enforcement/vodservices/Climax3Uncut.pdf). Playboy TV claimed that the service is not “television
-like” since, given its classification as R18, “it is aimed at consumers looking for
hardcore material, rather than the softcore content on our television channels.” It also
contended that the service is a website “designed to complement our television
channels, rather than compete ” with them. It further maintained that the “marked
36
difference in compliance levels between the Service and our channels also
demonstrates the lack of competition ”, and asserted that it was “reasonable to
suggest that the soft content shown on UK TV cannot possibly compete with R18
content on a website.” Playboy TV also argued that, since the means of access to the
service is only via the internet, “it would seem reasonable that the user would not
‘expect regulatory protection’ when accessing it” (5).
ATVOD had originally argued that although the content of the programmes on
Climax 3 Uncut “may be more explicit than is currently permitted on linear TV
services in the UK, the form and content is nevertheless comparable to ‘adult’
programmes which are frequently broadcast on linear TV channels in other EU
jurisdictions.” In its response to the appeal, Ofcom pointed out that the Directive
requires the form and content of relevant on-demand programmes to be comparable
but not identical to those on linear services. In that the programmes on Climax 3
Uncut are “offered in self-contained items for selection under individual titles which
are of sustained duration (as opposed to brief clips)”, are arranged into schedules
which follow specific running orders, have title and end-credits sequences, and
include “material which adopts dramatic/fictional conceits or plots” (8), Ofcom
concurred with ATVOD that they were indeed “comparable” to the form of
programmes available on linear services. Similarly, in its view the fact that the
contents of the programmes on Climax 3 Uncut were more explicit than those on
linear “adult” channels was simply “a matter of degree” and did not mean that they
were not still substantially “comparable” in content to such programmes. Ofcom also
pointed out that, as noted earlier, a service will normally fall within ATVOD’s remit
if “its principal purpose is the provision of programmes the form and content of which
37
are comparable to the form and content of programmes normally included in
television programme services”. Ofcom argued that the phrase “normally included”,
properly construed, simply refers to the general type of broadcasting/programming
normally included in the range of television programme services. It does not
necessarily exclude … those programmes which would and could “normally” be
included on UK television programme services but for the operation of other (more
strict) legal provisions specifically regulating the extent of particular content on
television.
Were that not the proper construction, it argued, then service providers of on-demand
“adult” material could simply seek to evade the provisions designed to regulate such
material by maximising the explicitness of the sex and/or violence) in its programmes
(9). Ofcom also argued that the service provided by Climax 3 Uncut was
“television-like” within the meaning of the Directive in that:
The provision of the sort of “hardcore” sexual programme content as is
made available by the Service is likely to appeal to, and compete for, the type
of audience who likes to watch (and is similarly prepared to pay for) adult sex material
broadcast on relevant licensed UK television channels, and seeks to view even more
explicit pornographic material which is available on line. Whilst Playboy TV maintains
that the Service is simply designed to “complement” (rather than compete with) “our
television channels”, Ofcom considers that the particular video content on the Service
would be likely to attract this type of audience precisely because it offers more explicit
content. (10)
On the question of the manner in which this material was accessed, as raised
by Playboy TV, Ofcom argued that the Directive
makes clear that it is not just the “means of access” to the Service which are
relevant but also the “nature” of the Service as well. Given that … the
38
nature of the Service is to provide “hardcore” pornographic film material to its on-line
users, Ofcom considers that a user would reasonably be led to expect at least the base
level of “regulatory protection” afforded under the AVMS Directive,
specifically in respect of material inciting hatred based on sex or race, or which might
seriously impair the physical, mental or moral development of minors. With this in
mind, Ofcom considered that:
The additional “means of access” to the Service via the internet (as a particularly
widespread and accessible medium) would also lead a user of it reasonably to expect
basic “regulatory protection” under the AVMS Directive … Accordingly, whilst it may
be the case (as Playboy asserted) that the internet generally “contains a wealth of
unregulated content”, Ofcom is not persuaded that users of the Service would therefore
not expect any degree of regulatory protection at all within the proper scope of the
AVMS Directive and the basic requirements for which it provides. (11)
It is indeed hard to read this judgement without coming to the conclusion that
Playboy TV’s chances of winning the appeal were slim in the extreme, and that
Ofcom seemed determined to interpret the relevant provisions of the AVMS Directive
in the strictest and most limiting way possible. It might also be added that, in cases
involving non-pornographic material, Ofcom has behaved very differently, and
interpreted “television-like” in a much narrower fashion. (See, for example,
http://stakeholders.ofcom.org.uk/binaries/enforcement/vod-services/Everton-TV.pdf,
and http://www.olswang.com/media/37671139/eclr_volume_13_issue_5_pg_1415.pdf ). In particular, the last two quotations above appear to be based on the surely
quite bizarre premise that users of “adult” on-demand services are concerned in any
way about “regulatory protection”. What users of such services are concerned about,
above all, is seeking out sexual stimulation, and one is surely pretty safe in assuming
39
that, from their point of view, what they most want to be protected from are attempts
by the state to limit their choice of viewing to what its officials deems acceptable.
A disproportionate, blanket ban
But what this judgement so very clearly illustrates is that one of the main
justifications for the manner in which ATVOD and Ofcom interpret the AVMS
Directive in respect of its stipulations about on-demand material which might
seriously impair minors lies in the fact that Ofcom will not allow linear broadcast
services to show R18 material even on encrypted and/or PIN-protected channels. In
this respect the UK stands alone with the Republic of Ireland in the EU. One strongly
suspects that the British government, having at the turn of the millennium decisively
lost the battle to stop the BBFC liberalising its guidelines so as to allow licensed sex
shops to sell a limited range of hard-core videos [deletion], is absolutely determined
not to allow any such material to be shown on any services licensed by Ofcom. (For a
detailed account of the BBFC debacle see Petley 2011b). Since R18 material is also
available on pay-per-view in many hotel rooms in the UK, Ofcom’s ban is clearly not
only inconsistent and illogical but also ripe for challenge in the courts under Article
10 of the European Convention on Human Rights. As I have explained elsewhere
(2011a), Ofcom justifies its ban on the grounds that, in its view, PINs are ineffective
in preventing children from watching “adult” material, but as Geoffrey Robertson and
Andrew Nicol argue:
It is absurd for Ofcom to imagine that its role is to stop teenagers from getting their
hands on pornography – that is impossible. Its role is to make the exercise difficult, in
relation to television, and to impress the unsuitability of such films for the young whilst
permitting some access – if only in the early hours of the morning – for adults. Using
40
teenage familiarity with PIN systems as an excuse for a blanket ban is disproportionate.
(2008: 894-5)
One could also point out that since ATVOD argues that the access controls
which it requires for on-demand material are effective, then linear broadcasters are
surely entitled to argue that if they put the same controls in place, then they too should
be allowed to broadcast R18 material. At which point, if Ofcom and the government
were really determined to uphold the ban on such material on linear services, they
would have to try to make the case that it really does meet the “might seriously
impair” standard laid down in Article 27 of the AVMS Directive which, as we saw at
the start of this article, justifies an absolute ban in the case of broadcast television. But
as is clear from Sexually Explicit Material and Video on Demand Services, Ofcom has
been advised that R18 material does not meet the higher standard.
Conclusion
The principal conclusion that can be drawn from this admittedly complex narrative is
that it is extremely difficult to play the old-fashioned censor in a globalized online
environment. As the examples of countries such as China, Saudi Arabia and North
Korea all too clearly illustrate, it is not, of course, impossible, but democracies do not
like to be seen to be doing so (which is why British governments traditionally operate
at one remove or at arm’s length via bodies such as Ofcom and the BBFC [deletion],
although it should be noted that there are also good administrative reasons for such
arrangements). But even if such action is possible, many will surely think it
undesirable, and the government’s actions run the risk of reinforcing all sorts of
41
unfortunate stereotypes about censorious but smut-obsessed Brits. Of course children
should be protected, as far as is possible and reasonable, from material which is not
meant for their eyes, but the consequences for “adult” video-on-demand content of the
government’s determination to ban all R18 material on linear channels threaten to
render the UK an anomaly in the regulation of the non-linear area too. Perhaps the
government believes that there is electoral advantage in being seen to stand alone
against the floods of alien porn, but, if so, it should have the courage to legislate along
the lines suggested by Ofcom in Sexually Explicit Material and Video on Demand
Services. This would at least have the merit of flushing these hitherto obscure matters
out into the open and of bringing a degree of legal clarity to the situation. But even
without new legislation, Ofcom’s prohibition of R18 material on linear services is
open to legal challenge under Article 10. Given the prohibition’s serious implications
for on-demand material, not to mention for the rights of adults to watch material
which is legal on properly protected linear services virtually everywhere else in the
EU, this challenge needs to be made with some urgency.
Acknowledgments
I’d like to thank Pete Johnson, Jerry Barnett, Myles Jackman and Dr Daithí Mac
Sitígh for their considerable help whilst I was researching this article.
References
42
Collins, Richard. 1994. Broadcasting and Audio-visual Policy in the European Single
Market. London: John Libbey & Company Ltd.
Hardy, Jonathan. 2008. Western Media Systems. Abingdon: Routledge.
Petley, Julian. 2011a. “Doublethink: ‘Deregulation’, Censure and ‘Adult-Sex’ on
Television.” In The New Politics of Leisure and Pleasure, edited by Peter Bramham
and Steven Wagg, 245-67. Basingstoke: Palgrave.
Petley, Julian. 2011b. Film and Video Censorship in Modern Britain. Edinburgh:
Edinburgh University Press.
Petley, Julian. 2013. “‘The Following Content is not Acceptable.’” In Controversial
Images: Media Representations at the Edge, edited by Feona Attwood, Vincent
Campbell, I.Q. Hunter, and Sharon Lockyer, 131-53. Basingstoke: Palgrave.
Robertson, Geoffrey, and Andrew Nicol. 2008 (fifth edition), Media Law. London:
Penguin.
Smith, Clarissa, and Feona Attwood. 2011. “Lamenting Sexualization: Research,
Rhetoric and the Story of Young People’s ‘Sexualization’ in the UK Home Office
Review.” Sex Education (11: 3): 327-37. doi: 10.1080/14681811.2011.590314.
Williams, Granville. 2007. “From Isolation to Consensus: The UK’s Role in the
Revision Process of the Television Without Frontiers Directive.” Westminster Papers
in Communication and Culture (4: 3): 26-45, available at
http://www.westminster.ac.uk/__data/assets/pdf_file/0012/20073/003WPCCVolFour-NoThree-Granville-Williams.pdf.
Such material may be sold only in licenced sex shops, to which no-one under eighteen may be
admitted. However, the BBFC has very strict rules about what may and may not be classified at
R18 (for a discussion of the limits of the possible at this level see Petley (2013)).
ii I’m very grateful to Dr Daithí Mac Sítigh of Edinburgh University for providing me with a copy
of this letter, which he obtained from the DCMS as a result of an application under the Freedom
of Information Act before the publication of Sexually Explicit Material and Video on Demand
Services. However, the letter was heavily “redacted” (in other words, censored); indeed, one of
its three pages is entirely blank.
iii Somewhat oddly, given Dr Cumberbatch’s eminence in this particular field, the review was
appended by a brief “peer review commentary” by Professor Sonia Livingstone.
iv Ofcom’s views on what parents think about the regulation of sexual material appear to be based
on research carried out for it by Opinion Leader in 2009 and published as Attitudes Towards
Sexual Material on Television
(http://stakeholders.ofcom.org.uk/binaries/consultations/bcode09/annexes/sextv.pdf),
although, as the title suggests, the research was concerned primarily with attitudes to sexual
i
43
material broadcast by conventional means. This and other audience research by Ofcom is
discussed in Petley (2011a).
v It should be pointed out here that there is by no means universal agreement that such material
is “harmful”, even to the “vulnerable”.
vi Again, I’m very grateful to Dr Daithí Mac Sítigh for providing me with a copy of this letter
(which, on this occasion, was not “redacted”), obtained from the DCMS as a result of an
application under the Freedom of Information Act.
vii E-mail communication with the author, 21 November 2013.
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