ATVOD, the UK Video on Demand censor, has published the result of an appeal to Ofcom which resulted in the confirmation that the Daisy Rock UK website is subject to suffocating censorship by ATVOD.An appeal by the service operator against an ATVOD determination in November 2014 that the website was an on-demand programme service and therefore subject to regulation by ATVOD was rejected by Ofcom.
The ruling means that the Daisy Rock UK website — which provided access to a range of explicit sex videos – must comply with an ATVOD Rule which requires services to keep explicit sex videos behind onerous and unviable access controls which ensure that children do not normally see them. The website operator had been found in breach of that rule in November 2014 and had brought the service into compliance pending the outcome of the appeal.
In order to fall within the scope of the regulations overseen by ATVOD, a service must satisfy a number of statutory criteria, as set out in section 368A of the Communications Act 2003. One of these is that the principal purpose of the service is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services. The provider of the Daisy Rock UK service had argued that the principal purpose of the website was to operate as a fan club for an adult porn performer and that the video content was not comparable to TV programmes. The Ofcom decision supported ATVOD’s original ruling that the principal purpose of the website was to provide TV-like programmes, noting that the provision of audiovisual material was the main offering of the service and that the videos themselves were comparable to the type of adult sex material included in certain premium subscription and pay per view television channels — even though the content was stronger than that allowed on UK TV.
The UK rules overseen by ATVOD implement an EU Directive which makes clear that the rules are intended to apply to services which are mass media and which compete with television broadcasts services. The provider of the Daisy Rock UK service had also argued that the low turnover of the service meant it was neither mass-media nor in competition with television services and therefore placed it outside the scope of the Directive. In upholding the original ATVOD decision, Ofcom also rejected this argument.
ATVOD Chief Executive Pete Johnson commented:
The decision to uphold the ATVOD ruling makes clear once again that hardcore porn videos on adult websites may be subject to the ATVOD rules even if they are too explicit to be broadcast on UK television channels. It also makes clear that services with low turnover fall may within our remit.