Government minister Jeremy Hunt wrote an open letter of 16 May 2011 on 'A Communications Review for the Digital Age'. This included the question:
Q13. Where has self- and co-regulation worked successfully and what can be learnt from specific approaches? Where specific approaches haven't worked, how can the framework of content regulation be made sufficiently coherent
and not create barriers to growth, but at the same time protect citizens and enable consumer confidence?
Ruth Evans replied as chair of ATVOD:
As you would expect, the answer we are in a particularly good position to answer concerns models of self and co-regulation in the content arena:
Co- and self-regulation are particularly appropriate in rapidly developing sectors where the nature of services and the scope of potential consumer protection is subject to frequent change. Our experience is that
co-regulation of video on demand services has proved capable of yielding nimble, economical solutions and the promise of establishing a broad consensus around light touch regulation. In our short life we have worked through some complex issues
with the industry (e.g. the scope of the Regulations and determining where to draw the line on the protection of children from harmful content) in an efficient manner and have delivered more equitable funding arrangements for our second year,
with concessionary rates for small scale providers and new market entrants.
We have taken a definitive stance on what video material might seriously harm children (and therefore an ODPS must make provisions so that children cannot access the material) and we suggest that in the area of child protection online some rules
might benefit from greater clarity and certainty, building on the guidance we have determined.
The UK must not lose sight of the fact that the global nature of services accessible via the internet presents special challenges in respect of editorial regulation of VOD services. We are unable to regulate services sitting outside the UK which
are accessible to UK internet users. We suggest that a combination of action in respect of services which are subject to ATVOD regulation and action by other internet intermediaries in support of parents will be necessary going forward. Action
such as promoting use of filtering tools and greater awareness of the risks and protections that exist online will be important and complimentary to pure regulatory activity. Consideration should also be given by Government to what can done to
harmonise actions on an international level in this regard.
What ATVOD really means is that it has invented a very expensive censorial regime for practically every website with video based in the UK, and for no benefit to them whatsoever. ATVOD has also imposed an almost impenetrable barrier to trade on
all British adult sites that include hardcore video.
Repressive controls to prevent children from accessing hard-core pornographic material through video-on-demand (VoD) services will be secured as part of the comprehensive review of communications legislation currently being undertaken,
Communications Minister Ed Vaizey has announced.
Rules are already in place which mean that video which the BBFC would classify as R18, pornography which is explicit and sold in licensed sex shops, but not illegal, can be made available through VoD services only if excessively restrictive
controls are in place to prevent children from accessing it.
The Authority for Television On Demand (ATVOD) is the internet censor for VoD services and enforces rukles which ensure that any material which 'may' seriously impair children's physical, mental or moral development, but probably doesn't must not
be freely available. Access controls such as pin protection must be put in place if R18-type content is to be made available on anytime television services or internet websites that include video.
But, in the light of an Ofcom report which recommended a precautionary approach to protecting children and new legislation, the Government has committed to securing the present controls and looking at whether the legal position should be
bolstered further by future-proofing legislation as part of the current review of communications policy.
The Government is clear that children must be protected from harmful content, on television or online. We have made it a priority to address the concerns of parents that their kids are being exposed to material that's not
appropriate for them to see.
Without a doubt we want to make sure that video-on-demand services carrying adult material cannot be seen by children and it's already a legal requirement that any such content has access controls.
But the communications review gives us an opportunity to consider whether there's more we should do to ensure children remain protected and to limit access to potentially harmful material, such as introducing unclassified
material into the statutory framework.
The review will look at the availability of both R18-type material, and video content which is stronger than that classified as R18 by the British Board of Film Classification (BBFC) but still might be made available to adults.
Ensuring the effectiveness of restrictive controls on VoD services will also complement the recommendations made by Reg Bailey in his independent review of the commercialisation and sexualisation of childhood, Letting Children Be Children.
Ed Vaizey wrote to Ed Richards of Ofcom on the subject of restricting hardcore Video on Demand:
SEXUALLY EXPLICIT MATERIAL AND VIDEO ON DEMAND SERVICES
Ofcom produced a report on this last autumn and our officials have subsequently discussed the best way forward in the light of the recommendations of the Ofcom report, the policy position taken by ATVOD to require access
controls to any such material and Government policy generally on access to potentially harmful material, including work in UKCCIS and the current Communications Review.
Like you, we are quite clear that children should not have access to hard-core pornography on ATVOD-regulated video-on-demand services. The current rules put in place by ATVOD requiring access controls on such material
should remain in place.
As ATVOD regulates only a comparatively small number of services available over the Internet, our wider approach to protecting children from potentially harmful material is being taken forward by the UK Council for Child
Internet Safety (UKCCIS), building on the commitments made in our industry round-tables. We are committed to making progress in this area, preferably through industry action, but if necessary through legislation. Any necessary legislation is best
taken forward in the forthcoming Communications Bill.
Your report examined the current UK regulations, transposing the requirement in the Audiovisual Media Services Directive that VOD material which might seriously impair the physical, mental or moral development of minors
[is] only made available in such a way that ensures that minors will not normally hear or see [it] (which means in effect that this content must generally be encrypted). Department for Culture, Media and Sport
What concerned us was whether that requirement would provide sufficient safeguards to protect children from material equivalent to that classified by the BBFC at R18 and suitable for sale on DVD only in licensed sex shops.
Our policy aim was that such material should not be made available in ways accessible to children on those UK-based VOD services which fell to be regulated under the Audiovisual Media Services Directive.
The Ofcom report concluded that this was an area in which it was probably impossible to get conclusive evidence of harm and that it was Ofcom's view that, in the absence of such evidence, there was a case for taking a
precautionary approach and indeed seeking a legislative opportunity to provide a more certain legal basis for requiring access controls to protect children.
In the meantime, of course, ATVOD's rules have continued to require access controls to prevent children's access to R18 material on regulated sites – as we understand it, this generally at present takes the form of short
video sequences promoting hard- core pornography sites which can be accessed in full only after supplying credit card details.
The Ofcom review considered two main areas of content. The principal one, and the one on which the Department had sought your advice in particular, was the availability of hard-core pornography with content equivalent to
that which would be classified by the BBFC as suitable to the R18 category in DVD format. However, the report noted that there may also be material for which the BBFC would refuse a classification but which would not necessarily be illegal to
distribute to adults.
All such material is prohibited by Ofcom on licensed broadcasting services and is allowed on VOD services regulated by ATVOD only when access controls are in place to prevent access by children. Outside the small number of
regulated services, such material is known to be widely available on the Internet and that is why Ministers have given priority to working with ISPs to allow parents to make an active choice as to whether they want such material to be available
to their household. The wider application of this policy by ISPs, and the use of effective parental controls by parents, would do much to minimise the accessibility of hard-core pornography, and worse, by children on all on-demand services.
The questions addressed by the Ofcom report were therefore whether, on the small number of on-demand services regulated by ATVOD, where additional controls could be put in place under the AVMS Directive, the Regulations
provided an adequate level of protection for children from material equivalent to R18 by offering a secure legal basis on which to require access controls. Department for Culture, Media and Sport
We remain of the view - like you - that there is a good case that the Regulations require a precautionary approach in that the test is whether material might be seriously harmful rather than that it necessarily is
demonstrably harmful. However we accept that, in the light of Ofcom's recommendation, it would be preferable to provide legal certainty to ensure that the ATVOD rules are robust, in case of future legal challenge, and the protection for children
In these circumstances, and given the wider policy context, it seems to us that these issues would be best addressed comprehensively in the Communications Review. We would appreciate it if Ofcom, with ATVOD, would take any
steps necessary in the interim period to ensure that children remained adequately protected under the ATVOD rules, in the knowledge that we could bring forward Regulations in the short term if it proved necessary to support this position.
This report concerns the protection of children from hard core pornography on UK- based video on demand services1 . The government is concerned that under the current UK legislation these protections may not be adequate.
On 1 April 2010, DCMS wrote to Ofcom about the new legislation for UK-based video on demand services (implementing European law), which for the first time impose certain minimum requirements on regulated UK-based video on demand services
In particular, the legislation introduces minimum requirements on the provision of potentially harmful material in VOD services. The relevant section of the Communications Act (368E(2)) states 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 .
DCMS raised concerns as to whether this provision would in practice provide sufficient safeguards to protect children from sexually explicit material, or whether greater safeguards might be appropriate for such material which is made available
over VOD Services.
DCMS considered in its letter to Ofcom that a precautionary approach would be justified. This was because such an approach:
would be generally supported by the public, given the nature of the material in question and the need to protect minors
would be consistent with the tough constraints which Parliament has already placed on the distribution of sexually explicit material in hard copy form as a film or a DVD (i.e. material classified as R18 by the British Board of Film
would also be consistent with the approach Ofcom has taken on the provision of this material on television under its Broadcasting Code.
In DCMS's view, there is plainly an argument for concluding that on-demand programme services, which are capable of being accessed by children and young people at home round the clock, require sufficient safeguards.
Evidence relating to harm
In light of the Government's clearly stated intentions, we commissioned research to inform our response to DCMS.
A review was commissioned from Dr Guy Cumberbatch, an independent expert in the effects of media, especially on young people.This looked at the available evidence on the risk of harm from R18 material. The review updates the review of the
research literature in this area conducted for Ofcom by Dr Ellen Helsper of the London School of Economics ( LSE ) in 2005.
Guy Cumberbatch's main conclusions are consistent with the conclusions of the 2005 review. Firstly, that the research does not provide conclusive evidence that R18 material might seriously impair minors' development. Secondly, the research
does not provide clear, conclusive evidence of a lesser degree of harm. It is acknowledged that the research is by its nature limited given there are significant ethical constraints about conducting experiments which expose children to this type
of material and monitor their development for signs of potential harm.
However, some experts believe that there is evidence that exposure of minors to R18 material can have adverse effects. In short, this area remains highly controversial and in light of these considerations, it cannot be confidently concluded that
sexually explicit material carries no risk of harm to the development of minors.
Guy Cumberbatch's report has been peer reviewed by Dr Sonia Livingstone of the LSE's Department of Media and Communications.
Conclusions and recommendations
In reaching a view in response to DCMS's request as to whether greater safeguards might be appropriate for the protection of children in this important and controversial area, Ofcom considered both R18 material and also material stronger than
R18. It took account of the following important considerations.
In relation to R18 material, these considerations are:
that the evidence for children being caused harm by exposure to R18 material is inconclusive and the research is necessarily limited by the ethical constraints of exposing children and young people to sexually explicit material
Ofcom has a statutory duty under Section 3 of the Communications Act 2003 to further the interests of citizens and consumers and in doing so, to have regard to the vulnerability of children (and others whose circumstances appear to Ofcom to put
them in need of special protection)
that the public (including parents) consider that whilst those who wish to should have access to pornography, access to this material should be restricted in such a way that children cannot see it
the range of approaches in Europe as regards implementing the might seriously impair obligation in the Directive, and the number of countries that have relied on other legislation (existing or new) to restrict access to sexually explicit
material on VOD
the lack of any test case under current UK law establishing whether R18 promotional material supplied over the internet is obscene (i.e. has a tendency to deprave and corrupt its likely audience), but noting also that according to
the Crown Prosecution Service ( CPS ) (Legal Guidance to prosecutors) , it is possible that the publication of such material, provided it is sufficiently explicit and is freely accessible, is capable of being prosecuted as obscene
and therefore a criminal offence under the Obscene Publications Act [Although it is noted later in the report that no such prosecution has ever actually been attempted].
the desirability in the public interest of giving children appropriate protection from highly unsuitable material
the absence in the current regulations of a clear standard requiring sexually explicit material of R18 standard (or its equivalent) to be prohibited, in VOD services, unless it is made subject to restrictions;
the Government's clear intention to ensure protection of children from sexually explicit material on UK-based VOD services
the value of adopting a precautionary approach to protecting minors from the risk of harm from accessing R18 material (and material stronger than R18) on UK- based VOD services. There is clear evidence that the public (and in particular
parents) support a precautionary approach.
In relation to material stronger than R18 we had regard to the following considerations:
content stronger than R18 material encompasses a wide variety of unclassified material which cannot legally be supplied in the UK in licensed sex shops and includes abusive and/or violent pornography, examples of which have been held to be
obscene and a criminal offence to provide, if accessible by children
this material is acknowledged to be potentially harmful or very harmful to adults, particularly those who are vulnerable
yet the current legislation does not clearly prohibit it from VOD Services.
In summary, Ofcom's opinion is that taking into account:
all the considerations set out in this report, including the evidence relating to harm
DCMS's clearly stated intention to ensure the protection of children
the desire for certainty in this important and controversial area
the legislative protections currently in place are not sufficiently clear to provide that certainty. Greater safeguards should therefore be put in place.
We recommend the Government introduce new legislation which would specifically:
prohibit R18 material from being included in UK-based VOD services unless appropriate mandatory restrictions are in place
prohibit altogether from UK-based VOD services material whose content the BBFC would refuse to classify i.e. material stronger than R18.
Jerry Barnett, Chairman of AITA, and MD of Strictly Broadband, was invited to speak at the ATVOD Industry Forum on the 23rd May. He had also been invited to speak at the board meeting that same day to present issues facing the adult industry.
Without prior warning that invitation was postponed until July.
On 1st June he received notification from ATVOD that he was in breach of Rule 11 and given 10 working days to respond.
From ATVOD. Rule 11: Harmful Material: Protection of Under-18s
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.
Technical tools which may be acceptable for age verification purposes include:
Confirmation of credit card (debit card not acceptable) ownership or other form of payment where mandato proof that the holder is 18 or over is required prior to issue.
A reputable personal digital identity management service which uses checks on independent and reliable database, such as the electoral roll.
Other comparable proof of account ownership which effectively verifies age.
This is Barnett's response to ATVOD which he has decided to make public for the benefit of the industry.
7 June 2012. To: Pete Johnson, ATVOD
I'm writing further to my letter (sent on behalf of AITA) of 30th March, and also in response to your letter dated 31st May, declaring my company in breach of Rule 11.
Following my March letter, which was an open letter to the ATVOD board, I was invited to present my concerns at the 23rd May Industry Forum meeting, and also attend the board meeting that afternoon to present issues facing the adult industry. I
was also told that you would be sending a detailed response following the 23rd May meeting. I did indeed present my concerns at the industry forum, but was told that I was not in fact invited to attend that afternoon's board meeting (I'd received
no notification that this invitation had been rescinded). I was told that I would be instead invited to the July board meeting (this hasn't yet been officially confirmed).
I have not yet received your promised response to my letter -- instead, last Friday, I received official notice that my services are considered in breach of Rule 11, and given ten working days to respond. This letter comprises my response to that
notice. Please note and respond to the following points:
I made clear in my last letter and at the Industry Forum meeting that I would not be able to operate my VoD business within the UK if Rule 11 is imposed as you have designed and interpreted it. I consider Rule 11 to be punitive; it effectively
makes it impossible to run a adult web site in the UK, even though it breaks no UK law. This raises legal implications, which will require further exploration (I'm informed that a measure similar to Rule 11 was struck down by the US Supreme Court
on grounds of free speech). Given that the issues raised in my last letter are still (in theory) under discussion, and I've been (I'm told verbally) invited to present these issues to the July board meeting, this raises an issue of timing: how
can my VoD business be forced offshore in June while this discussion is ongoing? I therefore request that you postpone enforcement of the notice until at least after the ATVOD board meeting in July. Please be notified that I intend to move the
editorial side of the VoD business out of the UK, probably to another EU country, by the end of this month. As I've said previously, our VoD business is in decline, and the future focus of my operation will be on adult phone chat, webcam and
other social-media services. My currently employed Content Manager is leaving my employment on 12th June. Although my company will no longer be an ATVOD-notified ODPS, I plan to continue representing the UK adult industry at ATVOD industry forum
meetings on behalf of AITA.
I would like to further ask the following questions:
You have been informed by multiple businesses within the UK adult industry that Rule 11 is punitive, and cannot be implemented without seriously damaging or destroying existing, legal businesses. Have you sought an opinion on whether it is in
fact legal to knowingly drive our industry out of business or offshore? If so, please share this with ourselves and the Industry Forum. The ATVOD definition of TV-like appears to be very different from the definition chosen by other EU
member states, which have not included adult web sites within the remit. Are you aware of any other EU countries that have followed the same path as the UK regulator in this regard? You have come to the decision that legal adult content may
seriously impair under-18s. I request that you publish all expert opinion and academic research that was utilised in reaching this decision.
Three of the biggest payment handling companies have backed calls to cut off funds to hard-core pornographic websites that allow children access.
Visa, MasterCard and PayPal have agreed to help to lobby the Government for laws that would allow them to refuse to process card payments to websites that do not have age restrictions, Peter Johnson, chief executive of the Authority for
Television on Demand , said last night.
The VOD censor, ATVOD, has been arguing that the law would be a significant step in stopping children being able freely to access porn. However with the amount of porn already sloshing around the world then this seems an unlikely outcome. However
it will crucify smaller companies to try make a living in an industry trying to compete with a free product.
Update: Pete Johnson speaks of legislation required to ban payments to websites
At the event: For Adults Only? -- protecting children from online porn conference, organised by ATVOD, there was much discussion of ways to censor the internet in the name of child protection. In particular there were further comments
about blocking payment services to adult websites. Pete Johnson, ATVOD Chief Executive, said:
The overarching message of the conference was that we all need to continue finding ways to better protect children online. That is why ATVOD is working with Visa Europe, MasterCard, PayPal and others in the UK payments industry to design a
process which would prevent payments being made to foreign websites which allow children in the UK to view hardcore pornography. The initiative requires statutory underpinning and we are therefore discussing with Government the options for
bringing this about. In the meantime, ATVOD will continue to take robust action to ensure that UK websites keep hardcore porn out of reach of children.
UK Video on Demand censor ATVOD has called for the law to be changed to require pornography sites to carry out age checks before granting access.
It said credit and debit card operators would be forbidden from processing payments from British customers to sites that did not comply. It claimed that the matter was so urgent that it was critical the legislation is enacted during this
To back up its demand, the body commissioned market research firm Nielsen Netview to install equipment that monitored the online habits of 45,000 desktop PC and laptop users over the course of a month. The survey indicated that over the period:
6% of children aged 15 years or younger had accessed an adult website
5% of visitors to such sites had been under-18
One website alone - Pornhub - had been visited by 112,000 boys in the UK aged between 12 and 17-years-old Of the wider population,
23% of those who had used the net over the month had visited an adult site Visitors to adult sites spent an average of 15 minutes looking at them during each visit and typically clocked up two-and-a-half hours of time in total over the month
Atvod added that the survey probably underestimated the scale of the issue since smartphone and tablet use was not included in the figures.
The regulator already forces UK-based sites to carry out onerous and impractical age verification checks before explicit photographs and videos can be viewed. This can be done by requiring valid credit card details (sorry debit card holders,
these simply wont do) or other personal information that can be cross-referenced with the electoral roll or another ID database. (or used for phishing or identity theft)
Sex and Censorship, a free speech campaign group, - said the move would prove ineffective.
It won't make any difference to the sites that give all their videos away for free and sell advertising because they don't need credit card processing, said Jerry Barnett.
And some sites are already accepting bitcoin and other anonymous online payment systems. A clampdown on card payments would just accelerate this trend.
Even if implemented, this measure would have no effect on the range of content available to British consumers.
It seems strange that ATVOD aren't considering the far more practical solution of a central verification authority that is a bit more trustworthy (but not much with NSA and GCHQ snoopers) than a foreign porn site. Then for adult websites to
enforce this external age verification without being able to monitor people's personal details.
Perhaps ATVOD are happier to see websites suffocated by their impractical and dangerous rules than be allowed to thrive under a more efficient age verification scheme.
In the ATVOD press release ATVOD chair and censorship advocate Ruth Evans claimed:
We do not advocate censorship.There is nothing in the ATVOD Rules which interferes with the right to provide sexually explicit material to an adult online.
[ ...UNLESS... of course that person doesn't hold a credit car. ..OR doesn't want to provide credit card details for a quick look round. ..OR... Doesn't want to risk ID theft or phishing by typing in dangerous ID details...]
Update: As if this measure would really prevent young men from gaining access to porn
31st March 2013. Thanks to Alan
Where does ATVOD recruit idiots to work for it?
This idiocy about protecting children really pisses me off. When I was a hormonal post-pubertal lad, more than half a century ago, I had no problem finding back-street newsagents with no qualms about selling me a mucky magazine. Are
today's media-savvy young men and women going to be prevented from gaining access to porn, whatever ATVOD or control-freak parents say?
In any case, how would ATVOD ban payments? I've never yet encountered a porn site which asks you to pay directly to Filthy Films Inc. Payments are through processors like CC Bill, which guarantee discretion, so that if your vanilla other half
happens upon your Barclaycard bill he/she doesn't know that you're subscribing to Burning Bums Spanking. If they do somehow ban CC Bill, Verotel, etc. it will just be a gift to pirates with no interest in prohibiting access by young people.