egafd.com

one eyed jack wrote:

> Except the definition of "television like" Seems anything
> filmed except short clips of under 2 minutes can be defined as
> such
>
> It seems OFCOM are not always in concert with ATVOD

Yes OEJ the definition of "television like" is being interpreted very widely and that is the principal issue because Ofcom has the power to regulate television providers, it has no power to regulate website owners unless it categorises them as "television like."

Parliament has not debated nor passed any law which requires that you may not publish or access anything on the internet without applying to the Government Censor. But look at the the regulations here. http://www.legislation.gov.uk/uksi/2010 ... e/data.pdf
Substitute the word "website" for the words "on-demand programme service" and you will see just how draconian these provisions are.

" A person must not build a website unless, before beginning, that person has given a notification to the appropriate regulatory authority of the person?s intention to build a website."

Don't either be confused by the apparent separation between Atvod and Ofcom. Atvod only exists as a part of Ofcom. Ofcom's determinations of so called appeals from Atvod are all very interesting, but they do not amount to anything but a regulator's determination themselves. Ofcom has disagreed with Atvod several times but Ofcom is not an impartial tribunal. Atvod treats these decisions like they amounted to judicial case law, but they are nothing of the sort.

The solution if you aren't a television company and are being harassed by Atvod is to seek Judicial Revue. I would look carefully at the Audiovisual Media Services Directive of the EU which is the prompt for these regulations.
http://eur-lex.europa.eu/LexUriServ/Lex ... 045:EN:PDF
The Directive was aimed at providing common regulation of television across borders within the EU. It's aim was not regulation of on-line porn on the internet.

Here are recitals 16 and 17 of the Directive if they don't apply to you you ought not to be subject to Ofcom/Atvod regulation. For instance, would a casual user of the internet that stumbled across your site have a reasonable expectation of regulatory protection?

(16) For the purposes of this Directive, the definition of an
audiovisual media service should cover only audiovisual
media services, whether television broadcasting or on-
demand, which are mass media, that is, which are
intended for reception by, and which could have a
clear impact on, a significant proportion of the general
public. Its scope should be limited to services as defined
by the Treaty and therefore should cover any form of
economic activity, including that of public service enter-
prises, but should not cover activities which are primarily
non-economic and which are not in competition with
television broadcasting, such as private websites and
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.
(17) 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. In the
light of this and in order to prevent disparities as
regards free movement and competition, the notion of
?programme? should be interpreted in a dynamic way
taking into account developments in television broad-
casting.

I actually have it in writing from ATVOD that users of AW and Clips4Sale are considered producers and must notify.

They acknowledge in their statement to me that enforcement of their guidelines causes issues with C4S and AW distribution because of the lack of control over the payment mechanism ATVOD say in order to comply with Rule 11 a producer shouldn't use a system where they cannot control the payment methods and/or content access directly.

Editorial responsibility to ATVOD is defined as 'the selection and organisation of content in a range' as a user of AW and C4S you have that editorial control despite any restrictions or approvals AW and C4S may take.

At XBIZEU there were stories from various models who had been contacted by ATVOD for distributing content through AW and C4S but who were not notified.

People for some reason get all defensive and arsey when I point the above out. I don't believe its right, but nonetheless it is the current way of it in relation to ATVOD.

Accept it and then challenge it!

ATVOD's editorial responsibility definition is not as clear cut as just one phrase - as Pete Johnson himself said "it depends".

If ATVOD make a statement, it is only their interpretation of the rules. They have been wrong before - early on when they tried to get newspaper websites to register - they can be wrong again.

Pete Johnson is always going to present his own interpretation if he is asked for guidance on notification. He knows that small producers don't have the means to test it with Ofcom or the courts.

I get that RGB however it seems like the only part of ATVOD's guidance that is applied consistantly with the same terminology is that definition of editorial responsibility.

The whole TV-like comparisons have always varied. But reading through every scope determination and guidance documents as well as meeting with ATVOD. Not Pete Johnson, the actual people that apply the guidelines to producers and sites. The editorial responsibility definition, it would seem, has always been applied in the same way - if you select and organise your scenes/clips you have the majority of editorial responsibility in the eyes of ATVOD.

http://www.atvod.co.uk/uploads/files/Gu ... y_2013.pdf

Section 4.5 of this includes the concept of "final say". Adultwork as the "platform provider" have the final say over content.

This was a key argument in the Nickelodeon appeal that ATVOD lost.

http://stakeholders.ofcom.org.uk/binari ... appeal.pdf

The trouble with these appeals is that they are not appeals to an appeals tribunal they are merely asking the regulator to review the decision of it's subcontractor. It is good news that Ofcom manages to make decisions independently, but as a legal process it's irrelevant. Atvod is Ofcom, and only has powers because it is Ofcom by another name. Any decision of Atvod might be subject to an internal review through Ofcom. As a matter of course everyone who Atvod attempts to regulate should refer it to Ofcom. But if Ofcom/Atvod don't back down and attempt to penalise you unreasonably, you have a remedy in Judicial Review.

At the Atvod Q&A the first questioner was Myles Jackman who questioned whether Atvods activities weren't ultra vires (that is outside of its legal powers). He didn't return to this or elaborate, and I'm not sure precisely what he meant, but the point I would make is that Ofcom/Atvod has no power to regulate websites at all except where the website is broadcasting television or offering access to television on demand. It might lawfully regulate Channel 4 or even Playboy TV on the internet if they are using the medium to broadcast TV. Anyone who has used the internet knows what a website is, and isn't confused that it is television nor "has a reasonable expectation that it will be regulated" unless it is a website showing television.

The purpose of the Statutory Instrument that has spawned Atvod was to comply with the EU Directive. The purpose of the Directive was to harmonise television regulation across EU borders. It was not to censor the internet.

Recital 15 of the Directive states:
"No provision of this Directive should require or encourage Member States to impose new systems of licensing or administrative authorisation on any type of audiovisual media service."
But what is the UK doing through Atvod/Ofcom?

The actions of Atvod are "oppressive" and "disproportionate" and "unnecessary in a democratic society" and are "without lawful authority".

Put in simpler looser language. They are just trying it on. If you don't stand up for yourself they will get away with it. If you believe in free speech make a stand. A reference to Ofcom costs nothing (I hope), but the trouble of a making a coherent submission. And if that doesn't prompt them to back off. Go to court. That's what the court is for.

Is this what you are going to do when they approach you about your AW profile? It needs a test case.

rgb wrote:

> Is this what you are going to do when they approach you about
> your AW profile? It needs a test case.
>
I don't imagine for a moment that they would single me out. But if they did, absolutely. Definitely I would.

You're right, it needs a case of someone not rolling over and taking it. The last four determinations of Atvod recently were met with representations that amounted to apologies and excuses or statements of closing the site or moving abroad. In each case it would not have cost any money or risked anything to challenge the basis of Advod's regulatory attempt. If Atvod did not accept such a challenge as they wouldn't, then repeating the challenge via the Ofcom appeal or review has no downside that I can see. If the challenge had merit, and was at least arguable with a prospect of success, then I think Ofcom would back down. They would get the best advice on whether any argument had merit. They would wish to avoid litigation. They might well back down. They've repeatedly backed down when met with a strong challenge before.

The point about the EU Directive is that it was aimed at television. If you watch television in the UK you expect it to be regulated. You expect the BBC to be subject to restrictions of what may be said or shown. If you watch the BBC on i-player you might reasonably expect the same standards to apply. In the case of Playboy TV they had a licensed linear TV channel broadcasting here which could only show relatively softcore material. They set up an internet website "channel" in a format mirroring their linear broadcast channel, showing the hardcore material they were prevented from showing on the proper TV. That is just the kind of practise the Directive was intended to control. It wasn't intended to regulate websites that just happen to have moving pictures. There may be people in society who would like on-line porn regulated or banned. But if so Parliament will need to pass a law to do that.

I think that anyone who wanted to stand up against Atvod would find a lot of support from the civil liberties lobby. The thing to do is respond properly to Atvod. Dispute that you are an ODPS. Do not register. Do not pay a fee. And tell them why they have no authority to regulate you, assuming you are not a provider of television on demand. If you are broadcasting television, or providing it on demand then you will have to take Atvod/Ofcom into consideration.

I agree with almost all you say. I think the problem is that the distinction between what is a website and what is a TV channel is now blurred due to smart TV's that display websites and the high quality of video that you now get on-line.

RGB

Actually I've just been working my way through the Atvod determinations and I see that you were unfortunate enough to have been done over by Atvod last year. I am sorry.

One of the things that they say is that your material was TV like.
"The videos available by subscription appeared to resemble television programmes on adult linear services."
I saw a trailer for one of your videos, though not a complete video, and it did have a format consisting of a title sequence and jingle that they might say was "television like". Now, I would dispute that such format devices are determinative. And beside the test that should be applied is whether a visitor to the site might consider that they were watching television and therefore might REASONABLY EXPECT that the programme was subject to regulation. However if porn site producers spoof the formats of TV programmes they risk giving ammunition to Atvod.

There may well be some crossover between computer monitors and television receivers. I hear vaguely of such developments. As it happens I don't have a television at all and never watch it, but I see the point you are making that the technologies are converging onto single devices. I would not think however that that was material. The Directive is intended to regulate mass media: "that is, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public." (Recital 16). So the issue that Atvod might have been forced to answer in your case is, were the subscribers to pussytalk.com a significant proportion of the general public? I suggest under 1% is not a significant proportion. So did your site have more than about 700,00 unique subscribers? The internet is not the mass media. The whole point of the internet is that anyone can publish anything, just as I am publishing this, without the mediation of the mass media.

Also, in your case, if the rationale behind the action of Atvod was the protection of minors, as they say it was. (A reason as seemingly laudable as it's probably dubious.) And in pursuit of this aim they forced you to close your site and walked all over your Article 10 rights to freedom of expression. How many under 18s were saved from illicitly accessing your site? And how many are now protected from seeing similar or stronger material on the internet? And if there isn't even one under 18 who has been protected from seeing a dildo used on the internet as a result of Atvod's interference with your Article 10 rights, how possibly could their action be "proportionate" or "necessary"? And if it is neither, it is unlawful, so long as Teresa May hasn't repealed the Human Rights Act and withdrawn the UK from the EU and the ECHR.

I'm sure that standing up to them is likely to be hard and worrying and would drag on, and I don't blame anyone for seeking the quickest escape from Atvod's attentions. But the advantage of living in a democracy is not just the privilege of marking an X on a ballot paper from time to time, it is the ability for anyone affected by the unwarranted actions of the state to hold it to account.