Guess Me Weight

Following on from our previous post we see an interesting example of Ofcom's wide brief, with a "guess your weight" competition held in central London yesterday. Protesters took rather unusual measures to highlight their objections to an amendment made to the 2003 Communications Act.

This amendment meant that any paid-for pornography bought online will now be regulated by the same guidelines set out by the British Board of Film Censors (BBFC) as DVDs sold by sex shops, which involves a number of sexual activities, produced by UK film makers, being banned for online broadcast.

As the Telegraph notes:

The new rules were brought in after the Department for Culture, Media and Sport decided that the laws relating to DVDs and online paid-for video porn were inconsistent.

DVDs are regulated by the BBFC, while online porn is regulated by the Authority for Television On Demand (ATVOD) and Ofcom. With the rise of VOD, the DCMS concluded under 18s would be able to access R18 content.

Providers of what is known as On Demand Programme Services ("ODPS") are required by law to notify ATVOD before the service begins, and to advise ATVOD if the service closes or undergoes significant changes.

Despite calling itself an "independent co-regulator" it comes as no surprise to learn that the Authority for Television On Demand (ATVOD) is another example of the complex mixture of Ofcom approved and EU financed regulatory structures:

On 18 March 2010, Ofcom delegated certain of its functions and powers in relation to the regulation of On Demand Programme Services to ATVOD by means of a formal designation. The designation included provision for a review of the arrangements after two years. Accordingly, on 22 March 2012 Ofcom launched such a review and on 15 August 2012 issued a statement confirming the Designation with amendments to give ATVOD greater operational freedom.

And while service providers must pay a fee to ATVOD in relation to each On Demand Programme Service, the fees which are charged by ATVOD are the subject of a public consultation each year and are approved by Ofcom.

We see yet another cosy alliance between those which sit on, and have previously sat on, boards across the great number of Ofcom approved regulators.

For example we see that Ruth Evans is the independent ATVOD Chair, and has previously sat on the Deputy Chair of the Office for Communications Consumer Panel for five years and on the Board Director of PhonePay Plus, which regulates premium rate services in the UK.

The Deputy Chair, Nigel Walmsley, was until recently a Council Member of the Advertising Standards Authority, and the Chairman of the Broadcasters Audience Research Board (BARB), and Pete Johnson, the Chief Executive Officer was previously Head of Policy and Business Development at the British Board of Film Classification.

Independent Board Member Robin Foster's profile describes him as having:

... previous experience as a strategy partner at Ofcom, helping to establish Ofcom and playing a key role in Ofcom’s first major strategic reviews of public service broadcasting, telecommunications and spectrum.

Then ODPS have to consider the universal guidelines on child internet safety issued by the UK Council for Child Internet Safety (UKCCIS).

Ofcom is not ATVOD's only focus as it notes itself:

Under the terms of its designation as the appropriate regulatory authority for editorial content in On - Demand Programme Services (“ODPS”), one of ATVOD‟s designated functions is to ensure that Service Providers promote, where practicable and by appropriate means, production of and access to European works (within the meaning given in Article 1 (n) of the Audiovisual Media Services Directive („the Directive‟) (section 368C(3) of the Act) 

Thus those protesting might be interested to know that Westminster is largely impotent in this case. The dominating factor, which unsurprisingly the Telegraph fails report, is laid bare in the Statutory Instrument in the Explanatory Notes (page 3):

The Audiovisual Media Services Regulations 2009(a) and 2010(b) implement Directive 2007/65EC of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services(c) (“the AVMS Directive”).

And EU Directive 2010/13/EU (Audiovisual Media Services Directive) states:

It is necessary, in order to avoid distortions of competition, improve legal certainty, help complete the internal market and facilitate the emergence of a single information area, that at least a basic tier of coordinated rules apply to all audiovisual media services, both television broadcasting (i.e. linear audiovisual media services) and on-demand audiovisual media services (i.e. non-linear audiovisual media services).

Confirming once again the UK's submissive role as a European Union member state.