ATVOD

The Association for Television on Demand

The Association for Television on-Demand (“ATVOD”) has been designated as the appropriate regulatory authority for editorial content in an ODPS and also for determining whether the provider of an ODPS has complied with its obligation to notify. 

 

On 28 July 2010 and 28 September 2010 we wrote to inform the service provider that ATVOD had considered the Service and had formed a preliminary view that the Service may be an ODPS in respect of which a notification has not been given. However, before ATVOD reached a determination that a contravention of section 368BA had occurred in accordance with its powers under section 368BB(1) of the Act, we invited the service provider to make representations about that apparent contravention within 21 days.

 

In a response dated  2 August 2010 the service provider stated that:

 

 

“Paulraymond.com is a subscription only website whose primary function is to support the magazines published by the company….Accordingly, most of the content and functions on the website are photosets, messaging, contacts, magazine subscriptions and dating plus more details and information on the latest issues of the magazines.  In addition to the above we have a “videos” section which provides 3 to 5 minute clips of adult content. Some, but not all of these clips are put onto the “full length video” section, and these run for anything from 10 to 20 minutes, typically. Accordingly, content is predominantly non-video…

…we would very much doubt that you would class these videos as “TV-like” and they would certainly not be suitable for broadcast on any normal television channel both due to their content and the set up structure and quality of the clips.”

Taking those representations and the relevant considerations into account, ATVOD has concluded that the Service is an ODPS. This is because the Service fulfils each of the relevant criteria set out in section 368A(1) of the Act as follows:

 

(a)        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;

 

Although the service sits within a broader website whose principal purpose appears to be to act as a marketing tool for printed magazines, the ‘Full Length Videos’ service presents programmes as a catalogue of viewing options and could exist as a coherent VOD consumer offering if removed from the broader service.  There are currently 920 pornographic videos available, which are advertised on the home page as ranging from 20 to 30 minutes long (see Annexe 1) although as stated in provider’s representations, a more typical length is 10 to 20 mins.  These are comparable to the form and content of pornographic programmes normally included in television programme services, the quality and structure of which vary greatly.   Shared features with such television programmes include:  sexual encounters shown in full from initiation to climax; changes of camera angle; music soundtrack on some videos; chat between female performers and behind-camera male filmmakers on some videos.

 (b)       access to it is on-demand;

 

Access to the service is via the website ‘http://www.paulraymond.com/’ and it is also accessible via ‘http://topshelftv.com/’ (see Annexe 1). The navigation bar at the top of the page is used to access the ‘Full length videos’ section, which can also be reached from a window on the home page.  Anyone over eighteen can subscribe to the service, select videos and watch them at a time of their own choosing.

(c)        there is a person who has editorial responsibility for it;

 

The catalogue of programmes has clearly been selected and organised to form a coherent and distinct editorial proposition. 

 (d)       it is made available by that person for use by members of the public; and

 

Anyone over eighteen with the means of payment can access the material.  Restrictions on access are only the act of having subscribed to the service and payment via Direct Debit, debit / credit card or SMS / PRS.

(e)        that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.

 

Paulraymond.com Full Length Videos is apparently controlled by Paul Raymond Media Ltd, 207 Old Street, London EC1V 9NR

 

Having made the determination that the Service is an ODPS,  ATVOD has concluded that there are reasonable grounds for believing that a contravention of section 368BA has occurred because on the basis of the information available (a) the Service is an ODPS, and (b)  the provider of the Service has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of  the intention to provide that service or, if the Service was already being provided on 18 March 2010, did not give a notification before 30 April 2010.

 

The service provider may request an appeal by Ofcom of ATVOD’s decision that the Service is an ODPS or that it is the provider of the ODPS. Ofcom requires appeals to be made in writing within 10 working days of the date of the relevant decision.  In urgent cases a shorter period may apply. Appeals must be made according to Ofcom’s current procedures. These may be found at: http://stakeholders.ofcom.org.uk/consultations/on-demand-programme-services/

 

If no appeal is made or if any appeal to Ofcom is unsuccessful or if Ofcom determines that the request has been made out of time, ATVOD may issue an enforcement notice under section 368BB(1)(a) of the Act following consultation with Ofcom. ATVOD may also refer the matter to Ofcom for consideration of the imposition of a financial penalty under section 368BB(1)(b) of the Act.