ATVOD

The Authority for Television On Demand (ATVOD), formerly the Association for Television On-Demand,^[1] is a quango, regulatory agency designated by Ofcom as the "co-regulator" of television on demand (VOD) in the UK.^[2] ATVOD was founded in 2010 following a European Union directive on the regulation of audiovisual media. It is responsible for regulating on-demand services such as ITV Player and Channel 4’s All 4, as well as paid-for content on websites which are deemed to be "tv-like".^[3]

Origins

The Audiovisual Media Services Directive 2007 (2007/65/EU) of the European Union was implemented into UK law through Part 4A of the Communications Act 2003.^[4] The Directive updated the Television Without Frontiers Directive 1989 (89/552/EEC) to cover the extension of traditional television regulation to TV-like VOD.^[5] This directive was implemented in the UK on 19 December 2009 with regulations amending the Communications Act 2003.^[6][7][8] As a result Ofcom consulted with the Department for Culture, Media and Sport about proposals for the creation of a regulator for UK-based VOD.^[4] The Audiovisual Media Services Regulations 2010 came into force on 18 March 2010, making ATVOD Ofcom's co-regulator in editorial matters and the Advertising Standards Authority Ofcom's co-regulator in advertising matters.^[4][7] The Communications Act 2003 was further revised giving ATVOD greater enforcement powers in relation to VOD services.^[9][10] Minimum editorial and advertising standards were drawn up and published.

Regulation

Legislation enables ATVOD to regulate "On-Demand Programme Services" (ODPS) as the body designated by Ofcom. A service is an ODPS if it meets the following criteria:

• The principal purpose of the service is the provision of programmes, and
• the form and content of such programmes are comparable to those normally included in television programme services.
• The programmes are offered by the service "on-demand". That is, they may be selected by a user, and viewed at a time chosen by the user.
• The programmes are received by the user through an electronic communications network (including terrestrial broadcast, satellite broadcast, cable network or via Internet Protocol).
• There is a person who exercises editorial responsibility in selecting and organising the programmes, and
• that person makes the service available for use by the public generally, and
• that person is under the jurisdiction of the United Kingdom as defined by the AVMSD.^[11]

Any person who intends to provide an ODPS :

• must give advance notification to ATVOD;
• must pay a fee to ATVOD;
• must retain a copy of all content for 42 days from the date it was last made publicly available;
• must not provide material which incites hatred based on race, sex, religion or nationality, nor provide material which might seriously impair the physical, mental or moral development of under eighteens;
• and must abide by rules on advertising, sponsorship, and product placement, but which Ofcom decided shall be the regulated by the Advertising Standards Authority rather than ATVOD.^[2]

The question as to which services fall under ATVOD's regulation is being tested on an ongoing basis. Appeals against ATVOD's decisions are referred to Ofcom.^[12] Ofcom have ruled that YouTube content does not fall under ATVOD’s remit.^[13] However, in February 2014 ATVOD determined that the feature film streaming and downloading service provided by Sainsbury's Entertainment does fall under its remit.^[10] In contrast, an Ofcom decision in August 2014 determined that The Urban Chick Supremacy Cell, a small-time website providing paid-for bondage and sadomasochistic content, did not constitute TV on-demand.^[3]

Sanctions against those who fail to comply with these regulations include fines of up to £250,000, suspension of service and criminal prosecution.^[7][14]

Adult websites

In practice the majority of ATVOD's work consists of regulating UK websites that host videos to ensure that services containing adult content cannot be accessed by users under 18. In September 2013 it ran a seminar for small businesses to explain VOD regulations.^[15] Its Chief Executive Peter Johnson said: “Asking visitors to a website to click an ‘I am 18’ button or enter a date of birth or use a debit card is not sufficient – if they are going to offer explicit sex material they must know that their customers are 18, just as they would in the ‘offline’ world.”^[16] ATVOD believes that websites should require the user to supply valid credit card details or other personal information that can be cross-referenced with the electoral roll or another ID database, thus establishing the user's identity.^[17] Failure by commercial websites to obtain proof that the user is over 18 before allowing access to adult content is considered by ATVOD to be a breach of the Obscene Publications Act 1959.^[18] Johnson considers it possible that the act restricts the activities of adult websites based outside the UK if their content is downloaded within the UK.^[19] Johnson has also confirmed that in the case of non-pay sites containing user-uploaded material it is the uploader that is legally responsible rather than the service provider.^[20]

Enforcement

In 2012-13 ATVOD took action against 16 services deemed to be in contravention of the regulations. Ten of these made changes to bring them into compliance and three closed. Two of the services were run by Playboy TV and these received fines from Ofcom totalling £100,000.^[21] One website was shut down by an Ofcom order after ignoring an ATVOD enforcement notice issued against it.^[22] However, ATVOD only has the jurisdiction to take action against websites that are based in the UK. Consequently the regulator has proposed the introduction of a new licensing system. Licences would only be granted to websites that have suitable age checks in place. Unlicensed websites would have their payments from UK customers blocked.^[17] Talks between ATVOD and financial institutions including the Payments Council, the British Bankers Association and the UK Cards Association took place in October 2013. Subsequently ATVOD provided the UK Government and the European Commission with detailed briefings on policy options.^[16][23] In March 2013 ATVOD proposed that legislation should be enacted before the United Kingdom general election, 2015, to forbid credit and debit card operators from processing payments from UK customers to unlicensed websites. The opposition Labour Party expressed support for such legislation.^[17] The ASACP described ATVOD's proposed age verification measures as "overbroad" and has expressed concern that any consequent legislation may be "overly broad in its definition of adult entertainment content".^[24] In October 2014 it was reported that Ministers were drafting legislation to compel adult website companies and credit card providers to carry out age checks on users before allowing access to adult websites.^[25] The following month the Audiovisual Media Services Regulations 2014 amended the Communications Act 2003 to set out statutory and legal obligations for media distributors of on-demand content. The regulations define the content that can legally be distributed under an R18 certificate and make it a criminal offence to not adequately restrict access to such content to those aged over 18.^[26] Further proposals put forward by the Conservative Party in advance of the 2015 UK general election would give an independent regulator such as ATVOD the legal power to compel internet service providers to block sites which failed to include effective age verification.^[27]

Consultation and Research

In 2013 ATVOD conducted a survey into how easy the public think it is for under-18s to access hardcore pornography on the Internet and whether the public think that regulation to prevent such access is important. ATVOD subsequently organised a conference for representatives from the UK’s adult entertainment industry and children’s charities in conjunction with Queen Mary University of London. The conference, entitled For Adults Only? – Protecting Children From Online Porn, met to discuss measures on how to stop young people accessing pornography online.^[28] Industry representatives the Association of Sites Advocating Child Protection and the Free Speech Coalition called for a public education campaign instead of blanket censorship, such as ISP blocking, based on the findings of their own report Protecting Children in the Digital Age.^[29] Campaign group Sex & Censorship questioned the presumption of the conference, pointing out that there is no evidence that online pornography is harmful and that inappropriate regulation could be counter-productive to child safety.^[28]

In 2014 ATVOD published the results of research carried out in December 2013, tracking the actions of 45,000 UK internet users under the age of 18. Of those sampled, 10% of under-18s, 6% of under-16s, and 3% of under-12s who used the Internet during that month accessed an adult internet service at some point.^[30] The definition of an adult website in the survey was broad, including the sex toy and lingerie retailer Ann Summers.^[31] Concerns have been raised about the small sample size associated with users aged under 12. Nielsen Netview, the marketing agency that carried out the survey, commented that: "The sample size for 6-11 year-olds on the panel is very low. Figures for this age range are still reported, but they are always issued with a 'health warning' as being potentially too unstable to accurately project audience size." ATVOD confirm that: "Sample sizes for the youngest children (6 – 11) are relatively small and figures for this age group should be treated with caution as they may exhibit large changes month to month... These demographics do not meet minimum sample size standards."^[32]

Criticism

• The AVMSD was criticised by the Confederation of British Industry in 2006 for its potential to stifle the development of VOD in the UK.^[33]

• In 2011 ATVOD wrote to several UK newspapers claiming that their websites came under its regulatory ambit despite the fact that the AVMSD expressly excluded electronic versions of newspapers and magazines from its scope.^[14]

• Also in 2011 the UK VOD industry expressed concerns over the level of fees charged by ATVOD. The fees were considered to be both disproportionate to the service ATVOD provided and much greater than those charged in the rest of the European Union.^[34] As a result ATVOD consulted over the level of fees in 2013 and introduced concessionary rates for small-scale providers.^[35]

• The Open Rights Group has criticised the lack of transparency regarding the 2013 talks between ATVOD and financial institutions and consequent recommendations to government, calling for the process come under parliamentary scrutiny.^[18]

• There has been controversy over ATVOD's process of selecting websites for enforcement action. Itziar Bilbao Urrutia of The Urban Chick Supremacy Cell has said “whenever I see who has been reported to ATVOD, it is usually material that could be classified as kink – especially femdom”.^[3]

See also

• Television on demand
• Internet Censorship in the United Kingdom
• Obscene Publications Act 1959

References