Ofcom has considered its first appeals against “scope determinations” by the video on demand (VOD) regulator, ATVOD. The two decisions are about sexually explicit audio-visual content on adult websites, both of which were run by Playboy TV. Ofcom decided that the audio-visual content on those sites was “television like”, meaning that Playboy TV was required to register both services with ATVOD, paying a separate registration fee for each.

VOD Regulation

On 18 March 2010, the Communications Act 2003 was amended to include a new Part 4A which regulates any “on-demand programme service” (ODPS). A service falls within the new Part if:  

  • its 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  
  • access to it is on-demand  
  • there is a person who has editorial responsibility for it  
  • it is made available by that person for use by members of the public.1  

All providers of an ODPS must register with ATVOD2. The regulator has the power to decide whether providers of ODPSs have complied with the notification requirement; what constitutes an ODPS; and what constitutes a programme on an ODPS. These are known as “scope determinations”, from which there is a right of appeal to Ofcom.

Registered services are required to comply with ATVOD programme standards. The ADVOD code contains relatively few restrictions for VOD services – the main ones are over material that might incite hatred, seriously impair children or include inappropriate commercial references. These are much less onerous than the standards imposed on broadcasters by Ofcom (and the BBC Trust), or even those expected of newspapers and magazines by the PCC.

The decisions

Both appeals related to online pornography sites run by Playboy TV. The sites contained a range of pornographic audio-visual material, offered either as channels or under headings such as “scenes”, “films”, “series” and “porn stars”. Users had to register to use the sites, but could then click through to watch audio-visual content.

ATVOD determined that the sites were OPDPs:

“Although the content may be more explicit than is currently permitted on linear TV services in the UK, the form and content is nevertheless comparable to adult programmes broadcast on linear UK TV services and is essentially the same as adult programmes which are frequently broadcast on linear TV channels in other EU jurisdictions.”

Playboy’s main ground of appeal was that its online services were not ODPSs because they were not “television-like”. It said that because its services contained R18 content – which is prohibited for television broadcast under the Ofcom Broadcasting Code – it was not comparable to the material found on television. It also said that its websites did not compete with television services and that users would not expect the services to be regulated.  

Ofcom dismissed the appeals. It found that the websites were ODPSs because:  

  • The statute requires the form and content to be “comparable” to television services, not “identical”. The material was “comparable”: it was arranged into self-contained items in a catalogue; much of it was episodic in nature and part of an on-going series; the items were mostly of a reasonable duration and not just short clips; and there were intro sequences and closing credits  
  • The fact that the material was stronger and more explicit than that usually broadcast on television did not mean that those adult programmes were not still substantially comparable under the statute. This was the case even though the material was “R18 or equivalent in nature” and so unsuitable for unencrypted television viewing  
  • The nature and means of access to the service would lead the user reasonably to expect regulatory protection  

It is important to bear in mind that these decisions relate to managed websites, where the owner exercised editorial control over content, not “user generated content” sites where users post their own video material directly on the site.

When deciding whether a service is “television like”, ATVOD and Ofcom have made clear – in these decisions and others – that they will look at a range of factors, including the content of the clips, how they are organised and described, clip duration and production values. It is not surprising that Ofcom rejected the R18 argument. Commenting on the decision, ATVOD Chair Ruth Evans put the point well:

“The idea that a video on demand service should escape regulation on the grounds that its content was too extreme would make a mockery of the whole purpose of regulation in this area which, in large part, is designed to protect children from exposure to video content which poses a risk of serious harm.”

These decisions mean that managed pornographic video websites will need to register with ATVOD, unless they can structure their site in a way that avoids them being classed as “TV like”. Once registered, the sites will need to need to comply with the ATVOD code, in particular the requirement that:  

“If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it.”

ATVOD has made clear that to comply with its code, sites will be expected to introduce a Content Access Control System which must include effective age verification and registration procedures.

Other cases

ATVOD has now published 35 scope determinations, and in each one it has decided that the service is caught by the Act and needs to be registered.  

Examples of other scope determinations include one against BBC Worldwide, which ATVOD has said must register its Top Gear YouTube channel under the Act, even though clips are on average just eight minutes long. Some newspaper websites with “video” sections have also been caught, with ATVOD deciding that services were TV-like because of the way they were organised on the sites and the use of TV production standards. ATVOD has, however, made clear that where audiovisual content appears as an integral part of an online version of a newspaper, for example alongside news stories, then the service will fall outside of its remit.

Eleven of ATVOD’s determinations (including the BBC Top Gear decision, and four newspaper cases) have been appealed to Ofcom. Most of these appeals appear to be motivated by an objection to the principle of registration (and the need to pay a fee) rather than a worry that sites will breach ATVOD content standards. The decisions are likely to provide useful clarity on the scope of ATVOD’s remit.