LONDON — Ofcom, the U.K.'s chief communications regulator, has ruled on two appeals made by website operators challenging statutory rules that force them to register their sites with video-on-demand programming regulator ATVOD.
In one appeal, Ofcom decided that ATVOD's ruling over femdom BDSM site Urban Chick Supremacy Cell (UC-SC-Femdom.com) was outside its scope of regulation because its service was not "TV-like," even though it offers external links to video content.
In another appeal, Ofcom sided with ATVOD in its case against adult website FrankieAndFriends.net, ruling that the site didn't comply with Section 368A of the Communications Act 2003 by not registering its site. Ofcom said that it found the website to be TV-like.
In the Urban Chick case, Ofcom said in its decision that the appellant did not meet the definition of an ODPS, or on-demand programming service, as defined in the Communications Act and wasn't in breach of notifying ATVOD or paying its fees.
Urban Chick's website — with its femdom look and home page where a topless woman wears a balaclava, torn tights, army boots and is pointing a gun — provides links to other websites.
Ofcom said that the evidence showed that the site’s main homepage was primarily used to guide users to the paid content available on the members home page.
"This paid content was promoted as 'over 10 hours of relentless, no mercy hard-edge, high-resolution femdom clips,'” Ofcom noted. The "interface was not indicative of a service whose principal purpose was the provision of audiovisual material because video and photographic material appeared as a series of blog-style posts (although the majority did not include text) out in chronological order."
Ofcom relied on a previous decision involving News Group Newspapers' Sun Video division to make its ruling over alleged violations of Section 368A.
In the Sun Video decision, Ofcom created a three-prong test over whether a website is TV-like. The test asks: Would users consider the audiovisual content on the site as an option that competes with TV? Would viewers consider they are watching a TV-like program? And would the user have expected what he is viewing to be regulated as a TV program in the ways provided under the directive?
In the Urban Chick decision, Ofcom ruled for the BDSM site on all three points.
"Ofcom did not consider that the [Urban Chick] service was a competitive option for a user wanting to watch programs normally included in linear TV program services," Ofcom said in its ruling.
Ofcom noted that the BDSM site had been constructed using a blogging template "and therefore could only be navigated in a traditional web-like manner."
"This rudimentary, non-TV like navigation was demonstrated by the members’ homepage, which consisted of 20 chronologically presented posts, each with an attached photo gallery or individually embedded video," Ofcom ruled. "Consequently, Ofcom considered that a user viewing material on the [Urban Chick] service would be unlikely to consider themselves to be watching a program service competing with linear TV program services.
"Ofcom considered that the content available on the [Urban Chick] service was of particularly niche appeal, made for and consumed by a very limited audience," Ofcom ruled. "This, together with the small user base and turnover made it less likely, in Ofcom’s view, to be a service that was in competition with linear TV program services, and users were unlikely to have regarded the audiovisual material in the service to be regulated as TV under the directive."
Ofcom noted in the Urban Chick case that the ATVOD determination also referred to a service made available by Clips4Sale.com.
"As the audiovisual material available on that service appeared to be shared with the service which is the subject of this decision, Ofcom considered that the material was not suitably TV-like to satisfy the relevant requirement in the directive and meet the definition of an ODPS," Ofcom ruled.
Ofcom noted various elements of the videos offered on the site that were indicative that they had been made with a limited production budget and wouldn't be necessarily be viewed as a TV-like program. According to its operators, the website had a limited customer base — 58 paid customers and revenue of $2,193 in about two years.
"[T]he majority of videos available on the [Urban Chick] service were filmed in one location and many appeared unscripted and lacked any narrative conceit," Ofcom said in the ruling. "In addition, audio had not been recorded using professional equipment, there was no music to accompany the scenes, the videos did not appear professionally lit and the content appeared to have been filmed using basic, consumer-grade cameras.
"The production values of the material presented on the [Urban Chick] service were accordingly not closely comparable to professional content broadcast on linear services."
In the FrankieAndFriends case, Ofcom upheld ATVOD's ruling over complying with statutory rules that force VOD operators to register their sites. In its ruling, it concluded that FrankieAndFriends was indeed an ODPS.
"The provider of the FrankieAndFriends service had argued that the principal purpose of the website was to provide access to still images and that the videos on the service were ancillary to that purpose," ATVOD said in a statement.
Neither of the Urban Chick and FrankieAndFriends decisions involve Rule 11, the U.K. statute that requires website operators make sure those under 18 can't access hardcore porn, but instead focused on registration of the sites and paying fees under Rules 1 and 4.
Commenting on the decisions, ATVOD CEO Pete Johnson said, "the two appeal decisions demonstrate that there is sometimes a fine line separating adult services which are subject to the statutory rules from those which are not. U.K. services which feature the most extreme material are not subject to the video on demand regulations — which protect children from material which might cause them serious harm — unless they are considered TV-like."
Johnson noted that websites operated from outside the U.K. are not subject to the ATVOD rules but that the group continues to discuss with policymakers further options in an effort "for reducing the exposure of children to pornography and other potentially harmful VOD material on websites based both inside and outside the U.K."
He also noted that ATVOD is working with the Department for Culture Media and Sport on drafting legislation that would prohibit VOD services any material which would not be classified for sale on a DVD.
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