Ofcom Discussion

(16-01-2013 20:07 )eccles Wrote:  Yippee, I feel safer now!

Not.

As Munch says, this has been going on for some time. Playboy has been fighting this tooth and nail. The upshot is that they have moved their headquarters to Canada, and will move as many operations there as necessary to satisfy Ofcom that they are foreign run.

Even if Playboy were closed down hardcore porn from abroad would still be widely available so this has achieved nothing. What it does mean is that less scrupulous operators get a larger share of the market.

A list of Scope Determinations by ATVOD can be seen here. Its not just porn operators who have disagreed, The Financial Times, The Guardian, BBC World, Nickelodeon, MTV, Comedy Central, Everton, even Volkswagon, challenged ATVODs right to regulate their content.

I've just received an email from Ofcom - some light at the end of the tunnel perhaps because Ofcom have upheld two appeals by the BBC against ATVOD on this very issue! I haven't read the detail of the findings yet but here's the text of the Ofcom email:

Ofcom has today upheld appeals by BBC Worldwide Limited in relation to two decisions by the Authority for Television On Demand (ATVOD) – which is responsible for regulating the editorial content of certain on-demand programmes services.

On 3 May 2011 ATVOD determined that BBC Worldwide Limited’s Top Gear and BBC Food Youtube channels were each On-Demand Programme Services and therefore subject to regulation under Part 4A of the Communications Act 2003.

BBC Worldwide Limited appealed these decisions on 12 May 2011. As the appeal body for ATVOD decisions, Ofcom assessed both cases and has found in the appellant’s favour, deciding that the services did not fall within the scope of ATVOD regulation. These decisions relate to the content on the Top Gear and BBC Food Youtube channels at the time of ATVOD’s original determinations.


I realise that Ofcom can cite adult content as a special case and therefore they can still censor it but I would think that by upholding these two appeals they are contradicting themselves, something that could be used against them in the future.

Ofcom’s full finding on Top Gear Youtube is available here

Ofcom's full finding on BBC Food Youtube is available here

(18-01-2013 11:23 )Digital Dave Wrote:  I've just received an email from Ofcom - some light at the end of the tunnel perhaps because Ofcom have upheld two appeals by the BBC against ATVOD on this very issue! I haven't read the detail of the findings yet but here's the text of the Ofcom email:

[i]Ofcom has today upheld appeals by BBC Worldwide Limited in relation to two decisions by the Authority for Television On Demand (ATVOD) – which is responsible for regulating the editorial content of certain on-demand programmes services.

I realise that Ofcom can cite adult content as a special case and therefore they can still censor it but I would think that by upholding these two appeals they are contradicting themselves, something that could be used against them in the future.

Having read the Top Gear ruling I dont think Ofcom can cite adult content as a special case.

Heres a summary of Ofcom reasons for upholding the BBC appeal:
To be in scope for ATVOD regulation a service must be "essentially the same, or sufficiently similar, and which compete for viewers and advertisers" (appeal para 4a).
BOTH criteria must be met - similar and compete otherwise section 368A(1) of the Communications Act 2003 does not apply. Thats the law.

Several differences between Top Gear broadcast shows and online clips were identified. Ofcom decided that these meant the online clips were not television like.
- clips were mostly under 10 minutes long, TV shows were generally about an hour.
- clips were tasters to encourage people to watch full shows, TV shows "includes “several segments with different subject matter” with linking elements and opening and closing credits".
- a programme consisting of clips without links "would be “a series of unrelated clips”.
- clips were not "broadcast quality as they lacked opening or
closing sequences or credits, were of low resolution, and did not contain broadcast quality editing."
- "clips started abruptly without any introduction about the nature or aim of the piece"s.
- "playlists ... did not function to link elements in the manner of a coherent longer format piece of content".
- "differences ... would lead users clearly to distinguish between this type of web content, and the linear services offered by the BBC".
- "Recital 24 of the AVMS Directive sets out that a characteristic of an on-demand service is that it competes for the same audience as television broadcast"
- and that "users would expect regulatory protection"
~ the BBC quoted Ofcoms own research on these last two points. Users do not think video on demand is like linear TV.
- "television was consumed in a passive way “in comfort” on the large screen, the short clips on the Service were designed to be shared through social media and viewed on devices (such as smart phones and tablets) which have smaller screens and lower resolution."

There are two legal tests.
Is the service one "whose principal purpose is the provision of audio visual material"?
Is the "service is one whose principal purpose is providing comparable programmes"?
The Ofcom ruling makes it quite clear that for a service to be comparable there must be something like it on broadcast television. This is exactly the point Playboy made in their appeal - hardcore porn is not available. That appeal was rejected.

Here is what Ofcom quote from the EU Directive: "Recital 24 of the Directive which states that:
“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.”"

ATVOD implements the Audiovisual Media Services Regulations 2009, an amendement to the Communications Act 2003 by inserting paras 368a to 368r. (hint: dont google the Act, the published wording has not been updated - see link below). This Act is UK law, not what Ofcom or ATVOD think.

The Act implements the EU Audio Visual Media Services Directive (link below). That is NOT UK law, but UK law should be consistent with it. Article 1(1)(g) defines an “on-demand audiovisual media service” in looser terms than the UK Act.

The section on Protection of Minors states that there is different regulation for linear TV and on demand services.
There are to be no restrictions on on demand "Content which is likely to impair minors". (Linear TV must use watersheds or encryption).

For on demand TV "Content which might seriously impair minors must … only be made available in such a way that ensures that minors will not normally hear or see such on-demand audiovisual media services". (There must be a total ban on linear TV).

Even by insisting on credit cards and a separate financial transaction every time Ofcom is exceeding the Directive for content that might "seriously harm" minors. There is a huge difference between "not normally" access services and "never".
Directive

I have not found an EU definition of "minor" but Section 1 of the Ofcom Broadcasting Code ("Protecting Under 18s") states quite clearly that:

Quote:Meaning of "children":
Children are people under the age of fifteen years.

So the question is, how many children under 15 have debit cards?

ATVOD Top Gear Appeal
2009 Regulations

(19-01-2013 00:06 )eccles Wrote:  So the question is, how many children under 15 have debit cards?

I would have thought none, until I checked, and found this

Quote:For on demand TV "Content which might seriously impair minors must … only be made available in such a way that ensures that minors will not normally hear or see such on-demand audiovisual media services".

The key word here is "normally". Just as minors will not normally have access to alcohol. ATVOD are trying to ensure minors never have access.

Banks may be willing to issue debit cards, but I suspect the number issued is low. To access pay adult services customers need three things. A payment method. Internet access without parental controls. Somewhere private to watch. Young children should not have these.

Parents can hardly complain if they give their kids debit cards, unlimited internet access and don't check what they are doing.

Another bulletin, another set of unnecessary complaints against Chatgirl. Plus RLC has a mention this time around.

(22-01-2013 08:00 )oklahoma001 Wrote:  Another bulletin, another set of unnecessary complaints against Chatgirl. Plus RLC has a mention this time around.

They'll be the S66 complaints...

This ongoing campaign against Chatgirl mystifies me. I can no longer receive it as my Sky viewing card has expired, but all I remember of it is balloons and feet! Nothing more offensive than that.

Is there anything remotely envelope-pushing about it these days that would warrant these regular complaints? I bet even Ofcom are bored by them now.

eccles, the AVMS Directive re protection of minors states quite clearly that:

"The Directive takes into account that the protection of minors has always to be balanced with other important values of a democratic society, for instance freedom of expression.

In addition, protection of minors cannot work without parental responsibility".

ATVOD's 'credit card' rule is clearly over the top. It is discriminatory (in that many people on low incomes do not qualify for a credit card and/or choose not to own one for sound financial reasons) and, is totally unnecessary without proper evidence of "serious impairment" e.g. harm. It is thus clearly illegal.

Also, iirc, the definition of a minor as a person under 15 years of age is given somewhere in the AVMS Directive itself (or possibly in the TVWF). I know this definition exists *somewhere* but exactly where I read it escapes me at present.

Also note that material likely to impair (but not seriously) needs only watershed protection OR some other technical measure (e.g. PIN) NOT BOTH as OFCOM have unnecessarily insisted. And needless to say, OFCOM's 'justification' for BANNING R18-type material is NOT based on hard evidence but, indeed, on the LACK of real evidence of harm and thus falling back on a purely belief-driven assertion that a "precautionay approach" 'must' thus be adopted.

In my opinion there is no need for TV regulation at all, the only people to regulate what we can and cannot watch is us!! Ofcom are a non entity, they are a waste of time and money, i am sick of being dictated to, of what i can and cannot watch in my own home
The Government should turf Ofcom out of there offices, and put them into good use and turn them into luxury Apartments

(22-01-2013 21:28 )IanG Wrote:  ...ATVOD's 'credit card' rule is clearly over the top. It is discriminatory (in that many people on low incomes do not qualify for a credit card and/or choose not to own one for sound financial reasons) and, is totally unnecessary without proper evidence of "serious impairment" e.g. harm. It is thus clearly illegal.

Also, iirc, the definition of a minor as a person under 15 years of age is given somewhere in the AVMS Directive itself (or possibly in the TVWF). I know this definition exists *somewhere* but exactly where I read it escapes me at present.
...

Ian that is a brilliant point about credit cards being discriminatory. Wish I had thought of it. I suspect it might also fail under racial and religious discrimination as some religions will not enter into anything that has a hint of interest (ususary) or gambling - Muslims regard life insurance and other types of insurance as a type of gamble. I could be wrong but suspect there might not be Sharia compliant credit cards. Similar considerations apply to strict Christians.

Thanks for clarifying the age, I just don't have time to read the whole directive. A 16 or 17 year old might hold a debit card, as parents get them used to more financial respomsibility, but the number of 15 year olds (and under) must be smaller.

continental19 Wrote:In my opinion there is no need for TV regulation at all

There is a lot in that. The printed page has not been licensed or regulated since Tudor times. The original reason for controlling TV was that there were a very limited number of channels available, and ITV was a way of printing money so the public wanted operators to give something back in terms of unprofitable kids tv, etc.

There is no shortage of frequencies on Sky or Virgin.

Imagine if websites had to apply for permission, sign up to a code of conduct and could get fined if they published disputed information about professional bodies or scandals?

TV regulation is just outdated.