A challenge to Atvod.

[Fordcortina]

I recently posted on another thread about Atvod and Government internet censorship initiatives. I've done a bit more thinking and reading and I think I can show those who have or experienced the Atvod jackboot how to fight back.

Atvod has authority to regulate 'television-like' 'video on demand' services and nothing else. It has no authority to regulate websites or the adult industry per se. Only if a website is providing 'television-like' services does it have any power. That is the clear legal position. Atvod is a corporate body (a company), funded by the fees it collects, that Ofcom has given power to act on its behalf. It only has power because Ofcom has delegated its powers to it. Ofcom's power derive from statute.

Ofcom commissioned research into how people interact with the proliferation of new ways of consuming audio-visual material that has become available with digital technology. Their purpose was to define what was 'television-like'. Discovering what was 'television-like' would assist them to know what 'video on demand' services they should be regulating, and what services were outside of their remit. They are required to regulate audio-visual services that are television-like and nothing else. The research was carried out by a company called Essential Research in 2009
and again in 2012.

The question of whether adult websites were 'television-like' did not arise at all in the research. In an appendix to the 2009 report I found an indication that the word "porn" was initially put up for inclusion to the research groups but nothing else. Presumably it didn't figure because unsurprisingly no one thought that adult websites were at all 'television-like'. And the findings of what constitute 'tv-like' cl;early excludes most adult website offerings. This research into what criteria might make an audio-visual service 'tv-like', and the stark omission of adult content from the research is compelling evidence that no reasonable member of the public would anticipate that visiting an adult website was akin to watching normal television services. And therefore Atvod has no lawful remit to regulate adult websites. In any matter of law, the facts and evidence are vitally important. This is the smoking gun.

The test defined by Ofcom in the appeal it upheld for the Sun newspaper against Atvod's determination that its online videos were notifiable is quoted below.


a. would a user wanting to watch programmes normally included in
television programme services have considered, or consider, audio
visual material on The Sun?s website as amongst his competing
options;

b. when viewing such material, would the user have considered, or
consider, himself to be watching a programme service competing with
linear television programme services; and

c. when doing so, would that user have expected, or expect, what he is
viewing to be regulated as television programmes, in the ways
provided for under the Directive?

Ask yourselves the same questions with relation to any of the sites Atvod has recently acted against, or those who are presently on its list of regulated sites. How many would pass this test? Anyone who voluntarily registers their website with Atvod ought to think very carefully whether this is necessary or advisable.

For the websites that were recently acted against by Atvod, there were 20 days to make an appeal to Ofcom from the Atvod determination. It might be possible to ask for an appeal out of time considering that this is an important issue. Equally any website already notified to Atvod could inform Atvod that they aren't after all providing a notifiable service and await Atvod's answer before appealing it to Ofcom. On the basis of the evidence and the law as clarified by Ofcom's own decisions Atvod has no lawful remit to regulate most online adult websites. If Atvod was challenged, it's dollars to doughnuts Atvod would loose. What's more, there is no downside to challenging Atvod through Ofcom. No legal costs. The worst that could happen is that the challenge fails and the status quo remains.

Atvod is establishing itself as the online porn regulator because what is referred to as the adult industry is a merely a cottage industry. It is weak and disorganised and has acquiesced. Something should be done.

This is important. Even more important than the size of J Lo's new boobs. (And that's saying something because they are magnificent.) But this is really important because it's about freedom of speech. Once the State starts to say that you cannot publish something on the internet without a Government licence and permission, we are all not just on the slippery slope, we're actually in the brown stuff.

I am not a lawyer, but if anyone is aggrieved by the actions of Atvod or wishes to challenge them I'd be happy to look at the matter and help file an appeal if on the circumstances of any individual case it is possible. What's more, I bet there are many much smarter and knowledgeable people in civil liberty legal circles who would assist pro bono if the matter was framed as an issue of freedom of speech, which is what it is.

[one eyed jack]

Thanks for taking the time to type all that FordCortina

With due respect Im not sure if youve seen this video doing the rounds from XBiz EU a couple weeks ago but the debate over television like is neither her nor there in an argument to the adult indstrys defence.

In a court of law, if it was shot on a camera and edited could be defined as television like

The one thing thats for sure is ATVOD is here to stay and whil eit waves its trump card or regulating the internet to protect minors there snt much anyone can do to say otherwise.

Even at XBiz there were murmurs of the industry acting more responsible by playing ball which ATVOD sided with by saying they want to have dialogue with the adult industry but any outcome to that will be heavily biased in their favour a blowing out any suggestion of doing it any other way than their way

The endgame of all this is not even porn. Its control of the internet.

The media used the freedom of the press card against ATVOD regulating them and backed down accordingly. Its already got the mainstream broadast industry in its back pocket so it has more leverage to bring the adult industry among others it deems necessary to heel

[one eyed jack]

Heres the link to that video

ATVOD have a seminar on October 16th if you want to attend you need to book your place.

After watching that video I'm not sure what anyone would need to go for. If you run a porn site in the UK or even abroad and are based in the UK if you dont have your payment processor through age verification then you are in vioation of their rule 11

The next step is they are meeting with the banks on October 10th to discuss blocking payments to sites from abroad and UK that contravene their rules

[Fordcortina]

one eyed jack wrote:

> The next step is they are meeting with the banks on October
> 10th to discuss blocking payments to sites from abroad and UK
> that contravene their rules

Clearly they've let their success at stamping on UK porn producers go to their heads. Inviting the bankers of all people to be our moral guardians. Unbelievable! What on earth does that have to do with regulating tv? Besides what possible effect would the bankers blocking payments to a blacklist of people have on, for example, the tube sites.

Congratulations on organising the Xbiz debate. It really helped to shed a lot of light on what's going on. I did watch the thing all the way through. However, with the greatest respect, the only thing that will change things is a challenge based on a legal argument. Nothing else. That means you read the Directive, you read the statutory instruments. You read any relevant case law. You read the previous decisions of Ofcom on the law. You marshal the facts and the evidence and an argument constructed from the law as it applies to the facts. That is the only argument in town. The rest is protest and whinging.

The Sun newspaper challenged Atvod on their website videos. They won on the basis of a legal argument that they were not an ODPS. Atvod backed off going for the newspapers


Everton Football Club challenged Atvod on their website videos. They won on a legal argument that they were not an ODPS.


A website called Channel Flip that showed humorous video content won against Atvod on a legal argument that they were not an ODPS.


Even the BBC's youtube channels for the Food Programme and Top Gear both won appealing to Ofcom that they were not an ODPs despite their obvious provenance as well established TV programmes.

Many adult websites have been targeted but there has been no appeal to Ofcom on the ODPS question. Mostly the response has been capitulation, site closure, mitigation pleas more suited to the magistrates court, or responses of the calibre of, "We've moved to the Seychelles so two fingers to you."

Protests and public meetings have their place and can be effective in gaining publicity and a groundswell of support, but you can only change things by fighting it on its own terms. Its argument against you is on the law. Only a legal argument is a defence. In my opinion, many of those already censured by Atvod would have prevailed if they had made an effective appeal. They would have lost nothing even if their appeal had failed.

[one eyed jack]

"the only thing that will change things is a challenge based on a legal argument. Nothing else. That means you read the Directive, you read the statutory instruments. You read any relevant case law. You read the previous decisions of Ofcom on the law. You marshal the facts and the evidence and an argument constructed from the law as it applies to the facts. That is the only argument in town. The rest is protest and whinging"

You are absolutely right. This can be challenged but I fear the losing part will be down to the apathy of the adult business thinking that the Sex & Censorship Campaign is going to be the one to doit

Wthout support I feel the ATVOD issue will be pushed through as a deal to keep the ISP filters off the table. That side has more support from various pressure groups.

ATVOD playing the "damages the minds of minors" card is winning support from a reluctant part of the business that is trying t do right but not think of the consequences of what it ultimately means to an organisation that doesnt give a hoot about protecting minors. If it did then why hasnt it levelled action against tube sites and file sharing. Citing it is out of their jurisdiction for being overseas doesnt wash when theyre tryiing to block payments of those in the UK trying to run sites offshore

Arguing that making porn illegal could open up a whole new can of worms means nothing to these people which adds weight to my claims. The thing about the legal recourse option is that it will cost.

A lot.

So who is going to pay?

[Fordcortina]

one eyed jack wrote:

> The thing about the legal recourse option is that it
> will cost.
>
> A lot.
>
> So who is going to pay?
>

Appealing an Atvod determination to Ofcom costs nothing.

I offered my assistance to prepare an appeal submission. For nothing.

Even if it failed miserably it would cost nothing. No awards of costs.

I am not a lawyer but Ofcom appeals are not to a court. They have a quasi judicial character, but no issue such as rights of audience arise. In any case, afaik they are conducted on paper. I'm sure that the BBC, News International, and Everton FC employed top media lawyers and their submissions were prepared by top QCs. I have no doubt they paid handsomely. But they have already done the hard work. They have appealed and won. You know what arguments prevail because the decisions of Ofcom are published. If the same argument applies to the facts in another case, and it is not possible to distinguish them on the facts then the argument will prevail again. That is how it works.

I am fairly sure that it would be possible to garner support and advice without cost from sharper better qualified people than me if approached in the right way.

What could be the downside?

[Fordcortina]

RE: JESSICA PRESLEY.COM

Also there is a matter of some concern that I found by delving into the Atvod website.

Jessica Pressley, who is a model well known to members of this site is about to be hammered by Atvod/Ofcom. Her website was the subject of 2 determinations this year. She has not responded and the website continued to be updated which Atvod would consider to be a flagrant disregard for their authority. They have passed the matter to Ofcom to levy a penalty. This could be a very large amount of money.

I am slightly concerned that she might have moved address and be pursuing family life. Didn't she recently have a baby? She might be completely unaware of the problem.

IF ANYONE KNOWS HOW TO CONTACT HER, THEY MIGHT MAKE SURE THAT SHE AT LEAST KNOWS ABOUT THIS.

Depending on the circumstances she might even be able to submit a late appeal. In many respects her website would make an interesting one to defend. To borrow a famous newspaper headline, "Who breaks a butterfly on the wheel."

(Excuse the capitals, I cannot see how to do emphasis on this forum.)

[Paul Taylor]

Fordcortina, I like you lol.

Your way of thinking is what a lot of the industry could be doing to help each other, such as the UKAP open meeting day, a lot of interesting points were made, the the rally at Xbiz, theres double the proof that you have more of a voice when you are in numbers, its the numbers that need to go up if its to fight the greater numbers who side with ATVOD on the protecting bollocks while allowing tube sites to run which i where Minors are really seeing the porn. But they aren't going to go after them, it will cost more money of what they make to catch these people, look at ********** its never fully gone, no matter how many court cases there is, because they just move, thats what the tubes and torrents sites will do, so its much easier to go after official industry folk with sites they don't have to chase, the profit/turner over that ATVOD make would have to be spent chasing the pirated content that Minors watch.

But I do think a test case would be interesting, is there not someone who has had a letter that wants to appeal that wants Fordcortina's offer of help?

[one eyed jack]

Bill, you have email !happy!

[mybeautifultease]

I've said more than enough regarding ATVOD of late. I will try not to repeat myself and keep this post relatively short.

Appeals can and have been successful against ATVOD's OFCOM referrals, Playboy being the most recent. Playboy still have to pay some of the penalty though.

In relation enforcement, ATVOD's guidance states the following;

ATVOD may also refer contraventions of the Rules, and hence of the corresponding statutory requirements, to Ofcom for consideration of more serious sanctions, including financial penalties or suspension of the service, and giving directions under the Act. The amount of a financial penalty imposed on a provider will not exceed 5% of the provider?s applicable qualifying revenue or ?250,000, whichever is the greater amount.

I clearly don't have details regarding JessicaPressley.com's turnover but there seems to be a safeguard in ATVOD's rules that aim to prevent 'silly' penalties, especially for smaller providers.