egafd.com

I did some wider reading of European Media Law last night. And whereas I think that the definition of "television like" is well worth challenging I also think it would not be easy. Though as it happens Ofcom accepted that a prominent BBC programme about motorcars was 'television like' on the television but wasn't 'television like' when more or less the same product was on Youtube.

However another thought concerns universal ISP filtering of the internet by default. The point raised initially by Benson Media. Here's an article in the technical press.


If all UK internet access is filtered by default, as the Government plans, and if the filter can only be turned of by the positive action of a person who has established to his ISP that she/he is an adult. Then, no under 18 can NORMALLY view adult material which would be caught by the filter. Therefore no restrictions would be warranted.

I bet it would be overturned by OFCOM as well for a very simple fact that anyone with an AW account wouldnt or shouldnt be expected to pay thse whoppng fines they dish out to big companies

AW is pretty secure in that it is behind a warning splash page and you have to pay for the content.

The fact you cant control the payment mechanism is no different to uploading a clip to YouTube and they have made it clear they're not going for Tube and file sharing sites.

I reckon it would make a good test case

Who has been fined apart from Strictly Broadband?

Atvod might like to have a go at A/W. And they are probably trying to intimidate users, but they have many difficulties. First A/W is located outside the jurisdiction. Users/uploaders are primarily located in the uk but
"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"
are specifically excluded by the Directive. They would also need to show that the principle purpose of the user was to provide "television like" programmes. And in the case of girls providing a range of services it would be difficult to argue that their clips were not merely ancillary. They might have a go at anyone with a conventional website who also has a presence on A/W or C4S. If you have already registered with Atvod you might be particularly exposed.

The thing with an Atvod determination is that you only have 10 days to respond. That is quite unrealistic. Anyone subject to a determination with which they don't agree should say so from the outset and request that any determination be referred to Ofcom. I don't know what the rules are for Ofcom reviews but I understand that they take about 9 months from start to finish. Make a full submission to Ofcom. You will need to take particular care to marshal the evidence and prepare a defence on the relevant European and Domestic law. If Ofcom endorses Atvod's decision there would be the possibility of applying to the Court for Judicial Review. And that would create a test case. If you get that far, both Ofcom and (hopefully) you will have had a chance to have fully considered the issues. So far no one has applied for JR , and Ofcom has repeatedly failed to back Atvod because that threat is implicit and they will only back Atvod if they believe that they would have a better than even chance of prevailing in the Court.