Playboy claim that videos were too explicit for ATVOD regulation fails

Sexually explicit videos available on-demand on pornographic websites is 'television-like' content and is subject to UK video on demand regulations, Ofcom has ruled.

Ofcom rejected Playboy TV's claim that it was not covered by the regulation of 'television-like' services because no television station would show content as explicit as it had.

Video content in the UK is defined as being on-demand if the video content can be viewed any time by internet users; if a company has editorial control over it; if it is publicly available over the internet, and if it is being provided from the UK, according to the EU's Audio Visual Media Services Directive (AVMS Directive).

Video on demand regulator the Association for Television on Demand (ATVOD) had ruled that two of Playboy's adult websites contained video on-demand services. That ruling was appealed to media regulator Ofcom, which upheld the decision in two rulings.

"It appears to Ofcom that the provision of the sort of 'hardcore' sexual programme content as is made available by the Service is likely to appeal to, and compete for, the type of audience who likes to watch (and is similarly prepared to pay for) adult sex material broadcast on relevant licensed UK television channels, and seeks to view even more explicit pornographic material which is available on-line," one of Ofcom's rulings said (11-page / 242KB PDF).

Playboy had argued that content on its services could not be compared to 'TV-like' content because it was equivalent to material that is only rated as suitable for over 18s in a special and legally restricted category, which Ofcom bans from TV.

"In Ofcom's view, the fact that the content of programmes included in the Service 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 [the Audiovisual Media Services Regulations]," one of Ofcom's rulings said.

"Whilst [the regulations go] on to provide that the relevant comparison is with the format and content of programmes 'normally included' on television programme services, Ofcom considers that that phrase, properly construed, simply refers to the general type of broadcasting / programming normally included in the range of television programme services," one of Ofcom's rulings said.

“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,” ATVOD chair Ruth Evans said in a statement on the ATVOD website.

The UK's Audiovisual Media Services Regulations (AVMS Regulations) say that on-demand video services can be determined if the content is "comparable" but not "identical" to what TV broadcasters show.

"Ofcom considers that the particular video content on the Service would be likely to attract this same type of audience precisely because it offers more explicit content," the media regulator said.

The AVMS Regulations force companies to inform ATVOD when they operate an on-demand video service online. The company then has to pay a licence for broadcasting its material and is bound by the terms of the AVMS Regulations.

The AVMS Regulations were introduced in the UK to update the Communications Act in order to meet the requirements of the AVMS Directive. The AVMS Directive provides a European-wide standard on governing audio and visual content that is under the editorial responsibility of a media service provider.

The AVMS Directive says that countries need to ensure that they protect children from exposure to on-demand video content online.

"Member States shall take appropriate measures to ensure that on-demand audiovisual media services provided by media service providers under their jurisdiction which might seriously impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see such on-demand audiovisual media services," the AVMS Directive says.

Ofcom said that it found internet users could access on-demand porn videos on one of the sites using tabs on the homepage. It said a preview performance was available on the homepage of the second site to entice people to access premium content behind a paywall.

"Ofcom considers that the 'principal purpose' of the Service is plainly the provision of video content, and specifically adult, highly explicit pornographic video film material, made available on-line to users of the Service on a streaming basis. (The content can also be separately downloaded)," Ofcom said in one of the rulings.

ATVOD said that it was pleased with Ofcom's rulings.

“These are the first appeals heard by Ofcom under the new arrangements for the regulation of video-on-demand services in the UK and the decisions establish an important point of principle," ATVOD chief executive Pete Johnson said.

"UK websites offering ‘hardcore’ adult video-on-demand content cannot sidestep the new statutory rules by claiming that the content is, in effect, too explicit to be regulated. Instead they must ensure that such content is provided in a manner which ensures that children do not normally see or hear it," Johnson said