Dominatrix Beats Regulator into Submission…Ofcom upholds appeal that BDSM website is not TV-like and so is not liable to censorship by ATVOD

Posted: 17 August, 2014 in ATVOD VOD Censor, Ofcom Internet Censor, Ofcom TV Censor
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Read more ATVOD Watch at MelonFarmers.co.uk

the urban chick supremacy cell Urban Chick Supremacy Cell (UCSC) is aBDSM themed website structured as a WordPress blog. It features blog articles many with either short hardcore videos and/or photosets. The videos are generally short averaging about 7 minutes. The site is commercial but at a low scale.Ofcom notes that UCSC has only 58 customers and generated a total revenue of $2,193 since mid-2011.The Appeal

In January this year ATVOD claimed that the website was a Video on Demand website subject to its expensive and onerous censorship regime. But UCSC took advice from the campaign group Backlash and their friendly specialist lawyer and decided to appeal against the ATVOD determination.

TV censor Ofcom heard the appeal and decided that indeed UCSC did not fit the legal definition of service liable to ATVOD censorship and so overturned ATVOD’s determination.

The determination of whether a website is liable to ATVOD censorship is based on vague and poorly worded European legislation which basically requires basic TV censorship rules to be applied to websites that compete with traditional highly censored linear TV.

The determination is both complex and vague but the key points in Ofcom’s decision seem to be as follows.

Legals

Old Bailey The AVMS Directive is a European Directive amongst the purposes of which is to provide a measure of fair competition across Member States between those providing:

a. traditional (linear) television broadcasting services; and

b. on-demand services that are essentially the same, or sufficiently similar, and which compete for viewers and advertisers.

The key phrases from law is that a service is an on-demand programme service (ODPS) which is then liable to ATVOD censorship if:

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.

Ofcom also note explanatory notes in the European directive named recitals. Recital 24 of the Directive which states that:

It is characteristic of on-demand audiovisual media services that they are ‘television-like’, i.e. 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.

Ofcom also noted references to competition in Recitals 21 and 24 and in particular, that regulation should not cover services:

Which are primarily non-economic and are not in competition with television broadcasting, such as… services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest. And that, It is characteristic of on-demand audiovisual media services that they… compete for the same audience as television broadcasts.

USCS Case

UCSC appealed that the content provided by the service was not comparable to the form and content of programmes normally included in television content. In support of this the Appellant said that the average duration of the 91 videos available on the site was seven minutes and 53 seconds.

The Appellant also referred to factors proposed in Ofcom’s 2012 Essential Research Report for indicating whether an on-demand service is considered by its audience to be a reasonable substitute for linear TV. The Appellant gave the example of six factors (duration of content, look and feel of the service, who controls what is watched, effort expended to access the service, perceived quality of content and where the content originated) which it said indicated that UCSC was not a reasonable substitute for linear TV.

The Appellant also argued that, due to UCSC’s limited customer base and turnover (58 paid customers and a turnover of $2,193 in approximately two years), the website could not be considered to be in competition with linear TV.

Ofcom decision

Ofcom logo Ofcom agreed with ATVOD in that many aspects of the website did in fact fit the definition of an ODPS service liable to ATVOD censorship but also found a few aspects that did not fit the definition, and overall decided that the website did not fully meet the definition of an ODPS.

The issues in favour of UCSC not being an ODPS were:

That videos on the website were not of professional production values and many were presented just as clips:

There were no production credits of the type that were on the Playboy service (i.e. listing key production talent). Whilst not determinative, this can be a feature of material more likely to be viewed as comparable to programmes available on linear services.

The majority of the videos were not self-contained, nor episodes from wider series, but took the form of individual acts edited from longer single fetish sessions.

Ofcom noted various elements of the videos which were indicative that they had been made with a limited production budget. For example, the majority of videos available on the UCSC service were filmed in one location and many appeared unscripted and lacked any narrative conceit. In addition, audio had not been recorded using professional equipment, there was no music to accompany the scenes, the videos did not appear professionally lit and the content appeared to have been filmed using basic, consumer-grade cameras. The production values of the material presented on the UCSC Service were accordingly not closely comparable to professional content broadcast on linear services.

Ofcom also noted that the website was laid out as blog of posts in chronological order. There was no particular website navigation to pick out particular videos of interest:

Ofcom noted that the Service had been constructed using a blogging template and therefore could only be navigated in a traditional web-like manner. This rudimentary, non-TV like navigation was demonstrated by the members’ homepage, which consisted of 20 chronologically presented posts, each with an attached photo gallery or individually embedded video. Consequently, Ofcom considered that a user viewing material on the UCSC Service would be unlikely to consider themselves to be watching a programme service competing with linear television programme services.

Ofcom concluded that UCSC was not an ODPS:

Ofcom considers that the form and content of audiovisual media material on the Service, provision of which is its principal purpose, is not comparable to the form and content of linear television programme services. The Service was not, therefore, an ODPS within the meaning if the Act.

The moral of the story seems to be that low production value videos, without a particular narrative structure, presented in a blog are not likely to be TV-like and be considered a competing option to traditional linear TV.

ATVOD Response

ATVOD responded to the Ofcom decision in a press release (along with a second case that went in ATVOD’s favour)

ATVOD logo 2011 Assessment of how tv-like an on-line adult services is lies at the heart of a second ruling published by Ofcom. Ofcom upheld an appeal by the provider of the website Urban Chick Supremacy Cell – which included audiovisual content featuring bondage, domination and sado-masochism – against an ATVOD determination in January 2014 that it was an on-demand programme service and therefore subject to regulation by ATVOD.

Ofcom concluded that the form and content of audiovisual media material on the Urban Chick Supremacy Cell site was not comparable to the form and content of linear television programme services. Therefore, the website did not meet the statutory definition of an On-Demand programme service and was outside of the remit of the statutory rules.

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

The two appeal decisions demonstrate that there is sometimes a fine line separating adult services which are subject to the statutory rules from those which are not. UK services which feature the most extreme material are not subject to the video on demand regulations — which protect children from material which might cause them serious harm – unless they are considered ‘tv-like’. Websites operated from outside the UK are also not subject to the ATVOD Rules.

ATVOD will continue to discuss with policy makers further options for reducing the exposure of children to pornography and other potentially harmful VOD material on websites based both inside and outside the UK. We strongly support initiatives designed to improve the take up of parental control software and have worked with the Department for Culture Media and Sport on the drafting of legislation which will prohibit on UK based, tv-like VOD services any material which would not be classified for sale on a DVD.

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