Patrick Mitchell and Alasdair Muller consider two recent Ofcom decisions, both on appeal from the Authority for Television on Demand (“ATVOD”). The decisions provided clearer guidance on the criteria to be considered when assessing whether or not a service qualifies as an On Demand Programme Service (“ODPS”) as defined by section 368A of the Communications Act 2003 (“Act”). First published in the Entertainment Law Review

Background

Two internet services, “Frankie and Friends” and “The Urban Chick Supremacy Cell” (“Urban Chick”) each provided audiovisual and photographic adult content.  As it had done with various other adult websites, ATVOD launched an investigation into these services and concluded that each sitewasan ODPS (defined as an on-demand service whose principal purpose is “the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services”[1]), thereby falling within its regulatory remit. ATVOD  therefore ruled that the respective service providers were in breach of: (a) their statutory duties under s368VBA and s368(D)(3)(za) of the Act to notify ATVOD of the ODPS and to pay the accompanying fee; and (b) ATVOD Rule 11 (and consequently s368E of the Act) as neither site had in place any form of Content Access Control System or age-verification tools, meaning that persons under the age of 18 could easily access the adult content on each site.

 Both service providers contested ATVOD’s decision that their services were ODPSs; Ofcom rejected Frankie and Friends’ appeal[2], but upheld that of Urban Chick[3]. In so doing, Ofcom referred to its previous interpretations of s368A of the Act, as set out in the appeal decisions of Sun Video[4] and Viva TV Music[5]. The composite definition requires those assessing the service to consider whether:

  1. when looking at what is provided as a whole, there is anything which is a[n on demand? – I agree that this would make sense, but Ofcom do not make this distinction - see Frankie and Friends para 32(a)] service whose principal purpose is to deliver audiovisual material. Ofcom noted that a website may provide multiple services, each with its own principal purpose, or a single service with principal and ancillary purposes; and
  2. the audiovisual material that comprises the principal purpose of the service is comparable in form and content to programmes provided on linear TV.

Ofcom held that, although both websites satisfied the first of these requirements, only Frankie and Friends fulfilled the second. It followed that, although the primary purpose of each site was to provide audiovisual material, only Frankie and Friends could be classed as an ODPS.

Ofcom’s analysis of each site is examined further below.

1) Principal Purpose

Ofcom’s Sun Video decision identified a number of features which it considered to be characteristic of a service more likely to have as its principal purpose the provision of audiovisual material and, by contrast, characteristics of a service in which the provision of audiovisual material is more likely to be merely ancillary.

 Homepage

A service that provides audiovisual material is more likely to have its own dedicated homepage than a service that provides such material merely as an ancillary purpose, which will generally be accessible via a homepage that provides another service with its own independent identity.

The homepage for Frankie and Friends featured links entitled “Tour”, “Updates”, “Banners” and “Members”. The “Members” page offered three further options, headed “Members’ Photo Galleries”, “Members Video Galleries” and “Latest Updates”. Clicking on the “Members Video Galleries” link led the user to a separate page, the branding and styling of which was identical to the rest of the website. Ofcom held that the homepage was likely to have been the primary initial destination of users of the service and that its purpose was to summarise the main parts of the site (namely the Members’ section, the Tour and the update facility).

Consequently, although the video galleries were separately catalogued, they did not have a separate homepage from the rest of the site. Moreover, once a user had entered either the photographic or video galleries via the homepage, that user could then navigate freely from one to the other, effectively experiencing the two as one service.

Conversely, the main homepage for Urban Chick displayed links directing users to “Join Now”, “Enter” and “Take a Look”. Ofcom held that the purpose of the homepage was therefore to guide users to the paid content on the members’ homepage, and as such, the video content did have a separate homepage to the rest of the site. As the content on Urban Chick appeared as a chronological series of blog-style posts (although the majority did not include text), Ofcom also noted that Urban Chick’s layout and interface were not indicative of a service whose principal purpose was to provide audiovisual material.

Cataloguing and accessing

Where a significant amount of a service’s audiovisual material is catalogued and accessed via a dedicated section of the site, this typically indicates that the provision of such material is the site’s primary purpose.  Audiovisual content on Frankie and Friends was accessible only through the “Members’ Video Galleries”, appearing nowhere else on the site. This, Ofcom reasoned, indicated that the videos were not ancillary to the photographic content; instead, they had been catalogued in such a way as to allow the user to easily navigate to the video items alone, suggesting the site’s purpose was to provide an ODPS.

Urban Chick, however, featured a far more rudimentary interface, presenting unsorted video and photographic materials in chronological order. Ofcom noted that although users were able to select either “Members’ Videos” or “Members’ Galleries” in order to present either just the video material or just the photographic material, there was no robust cataloguing feature and it was not possible for the user to filter content in order to find a particular video. The inference was that the provision of audiovisual material was not the primary purpose of the site.

Presentation and Styling

Although names and labels are not determinative, material is more likely to have the required principal purpose where it is presented, styled or marketed in a similar way to a linear TV channel.

The way in which each website was presented indicated that its primary purpose was to provide audiovisual content. Whilst Urban Chick did not market its videos as a “TV” service, it advertised the paid-for content as “over 10 hours of relentless, no mercy Hard Edge, high resolution Femdom videos”. Access to the videos was therefore a clear benefit of purchasing membership to the Urban Chick service. Meanwhile, although Frankie and Friends featured no such promotional claims, Ofcom held that the layout of the website meant that the video and photo galleries were given equal prominence. The headings identifying each gallery all appeared in the same font, colour and size, meaning that the video content could not be claimed to constitute a less significant part of the service than the photographs. 

Duration, completeness and independence of material

Sites whose primary purpose is to provide audiovisual material are likely to feature longer videos and complete programmes rather than clips or extracts from longer programmes. The videos are also more likely to be independent, meaning they can be fully understood on their own without relying on any accompanying written material.

Both websites featured videos whose average length was relatively short – in a statement submitted to Ofcom, the owner of Frankie and Friends attested that 62% of the site’s videos were less than 5 minutes long, and 92% were less than 10 minutes long.

Similarly, although the length of videos on Urban Chick varied from two to eighteen minutes, the average duration of a video was seven minutes. Despite this, Ofcom maintained that the videos were of sufficient length to indicate a “significant offering”[6] and that the primary purpose of each site was to supply audiovisual content. However, whereas the videos on Frankie and Friends were all self-contained, requiring no additional material to be fully understood, the videos on Urban Chick were, by contrast, neither self-contained, nor episodes from a wider series. Instead, Ofcom judged them to depict individual acts which had been edited from longer footage, hence reducing the impression that primary purpose of Urban Chick was to act as an ODPS.

Links

Where the principal purpose of a site is to provide audiovisual material, there are generally fewer access or content links than on sites where the audiovisual material is an ancillary purpose.

Frankie and Friends and Urban Chick each provided users with a standalone viewing experience; whilst some videos were accompanied by a small amount of text, this was not required for the material to convey its content and be understood. In addition, although in each case there were strong thematic connections between the audiovisual material and the photographic content, there were no navigational links between the two. Ofcom considered that each of these factors pointed towards the principal purpose of each service being to provide audiovisual material. Ofcom also noted that, as a user did not have to return to the homepage of either service to alternate between video and photographic content, it was more likely to consider the different types of content as part of the same service rather than as two separate ones.

Balance of material

If a site contains content other than audiovisual material (unless the other content is the most prominent feature, has significant length and depth, goes beyond introducing or summarising the audiovisual material and is the primary means of conveying information) then it is likely to be considered ancillary to the audiovisual material.

On each site, the volume of photographic material far outweighed the number of videos – Frankie and Friends featured around 12,000 photographs compared to only 79 videos, whilst Urban Chick offered 107 photo galleries and 91 videos. However, Ofcom stressed that when considering the balance of the material, they did not consider issues of volume alone. The videos provided by each service were “a means of conveying to users the information that is sought to be conveyed[7] and were clearly one of the primary means by which each website offered a service to users.

Overall impression

Consequently it was held that, although some aspects of each service indicated a purpose other than the supply of video content, on balance the principal purpose of Frankie and Friends and Urban Chick was the provision of audiovisual material.

2) Comparability

Having concluded that the primary purpose of each website was to provide audiovisual material, Ofcom proceeded to compare the form and content of the videos to those typically shown on linear TV channels. As in previous appeals (particularly Playboy TV in relation to the service Demandadult.co.uk[8], and Channel Flip in relation to the service channelflip.com[9]) Ofcom considered a number of features of the videos hosted by each site which were of particular relevance. These are summarised below.

Subject matter

Ofcom first considered the nature of the videos available on each site. With regard to Frankie and Friends, the content was held to be generally comparable to the type of adult material permitted to be included in UK linear TV services – in particular, material which is broadcast for the primary purpose of sexual arousal or stimulation which, under Rule 1.18 of the Ofcom Broadcast Code, may be shown on “premium subscription services and pay per view/night services”.

In relation to the niche material on Urban Chick, although both ATVOD and Ofcom acknowledged that “broadcast sadomasochistic/fetish material tends to include only mild fetish material[10], they both agreed that the difference was one of degree rather than type. Ofcom referred to its decision in the appeal by Playboy TV relating to the service “Climax 3 Uncut”[11], which held that “the fact that the content of programmes included in [Climax 3 Uncut] may be stronger and more explicit… than that which can currently be shown on UK television is a matter of degree. It does not, however, lead to the conclusion that those adult programmes are not still substantially comparable in content within the meaning of s368A(1)(a)[12]. Consequently, the content of each website was held to be comparable to the type of adult material permitted on linear TV services.

Duration

As stated above, the average length of the videos on each site was relatively short. Ofcom acknowledged that whilst shorter videos could be indicative (but not determinative) of less TV-like material, shorter material can be considered as TV-like in some genres – and specifically, per Ofcom’s previous ruling in Channel Flip – “adult content programming”[13]. Ofcom therefore concluded that the duration of videos found on each website was broadly consistent with that of adult content programming found on linear TV services.

Titles and Credits

Neither service featured videos with TV-like titles or production credits (i.e. listing key production talent, as on the Playboy service), although many of the videos on Urban Chick began with the title displayed in a simple red font and concluded with the image of an Urban Chick logo. Ofcom held that, whilst not determinative, this feature of the videos featured on Urban Chick indicated that this could be seen as an indication that the material would be more likely to be viewed as comparable to programmes on linear services.

Content and Narrative Structure

Videos on Frankie and Friends were held to depict simple fictional narratives, enhanced by the use of staging and costume. This allowed for easy comparisons with programmes shown on linear TV channels. In contrast, the videos hosted by Urban Chick lacked a cohesive narrative structure as the majority seemed to have been edited from longer single fetish sessions. When a narrative was discernible, it was often atypical of programmes displayed on linear television – for example, one video consisted of a woman showing a fake hypnosis video on a laptop, which contained sequences of rapidly flashing images and text. Ofcom decided that the experimental nature of this, and other similar videos, provided further evidence that Urban Chick’s content was not comparable to programmes broadcast on adult linear services, or even on linear services more generally.

Production Values

The services differed further in terms of the production values of the videos they provided. Values on Frankie and Friends were obviously high – professional cameras and lighting equipment had been used, resulting in an enhanced viewer experience and a more TV-like product. Conversely the videos hosted by Urban Chick were clearly made with a limited budget, using consumer-grade cameras. They were not professionally lit and had no accompanying music. The production values of the material presented on Urban Chick were accordingly not closely comparable to professional content broadcast on linear systems.

Competition for audience and expectation of regulation

The Audiovisual Media Services Directive (“Directive”) states that an on-demand audiovisual service will be “TV-like” if it competes “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[14].

Ofcom determined that Urban Chick’s “rudimentary”, non-TV-like navigation system, the low production values of its videos and their niche appeal (resulting in a small user base and turnover) combined to create an impression that the site was not a competitive option for a user wanting to watch content standardly associated with linear TV. By the same logic, as a result of its superior archiving system, higher production values and wider target audience, the material on Frankie and Friends was held to be likely to compete for the type of audience who likes to watch (and are prepared to pay for) such material via linear TV services.

In the case of Urban Chick, Ofcom noted that the Recitals to the Directive make it clear that regulation should not cover services which are “primarily non-economic and are not in competition with television broadcasting[15]. Consequently, there was no reasonable expectation that Urban Chick would be subject to regulation. The same was not true of Frankie and Friends, which, as a service likely to compete for the same audience as linear TV services, could reasonably be expected to fall within the scope of video-on-demand regulation.

Overall impression

The result of Ofcom’s analysis was therefore clear: although the primary purpose of each service was to provide audiovisual material, only Frankie and Friends could be considered an ODPS, as of the two services, only Frankie and Friends contained content which was comparable to programmes transmitted on linear TV.

Comment

Ofcom’s decisions in Frankie and Friends and Urban Chick pull together a number of previous appeal cases – including Sun Video, Viva TV Music, Playboy and Channel Flip – to provide clearer guidance on the criteria to be considered when assessing whether a service is an ODPS. Whilst the conclusion will always depend on the factual matrix surrounding the particular service in question, the key element in making an assessment is to look at the service as a whole; it is clearly also important to note that a website as a whole may feature more than one service, each with its own principal purpose, or there may be a single service having principal and ancillary services.

 The differences between the two appeal decisions demonstrate that there can sometimes be a fine line separating those services which are subject to statutory regulation from those which are not. Although one of the purposes of regulating on-demand content is to protect children from material which might seriously impair their development, as in the case of Urban Chick, even services which feature the most extreme content will not be subject to regulation unless they are considered to be “TV-like” – the moment that a service is not, it falls outside ATVOD’s remit.