TV-Like Content: Closing the Loophole

The government plans to close the “TV-Like” loophole which a handful of porn services have used to stay in business.

For years, the British censorship state has become infuriated with the way digital communications have entirely sidelined their tight controls over film, TV and video content. The TV regulator Ofcom and the BBFC, which censors DVD, had no control over content on the Internet, whether or not it was published in the UK.

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In order to regain some control, the regulators seized on the Audiovisual Media Services Directive, a framework from the EU designed to extend broadcast TV regulation to online streaming services. The directive was written to apply only to “TV-Like On Demand Programme Services”, and was expected to apply to the BBC’s iPlayer and similar services.

However, the British censors saw their opportunity, and set up ATVOD in 2010 in order to implement the directive. While most EU countries followed the spirit of the directive, and set up minimal regulatory regimes, ATVOD instead drafted its own onerous rules and demanded large annual payments (£2,900 in the first year) from services (mainstream and adult) it considered to be “TV-like”.

Since ATVOD’s first goal was to raise funds, it cast its net wide, and declared a wide range of online newspaper and magazine services to be TV-like. The Sun newspaper swiftly appealed, and Ofcom (ATVOD’s effective parent) found in its favour. As a result, ATVOD dropped attempts to bring the Sun, as well as The Sunday Times Video Library, Telegraph TV, The Independent Video, FT Video, Guardian Video, Guardian YouTube, News of the World TV and Elle TV, under its control.

Subsequently, ATVOD tried to declare that some BBC YouTube channels – Top Gear and BBC Food – were TV-like services, and again lost on appeal.

Later, adult services also used the same appeal, sometimes successfully. The first successful appeal was by Mistress Tytania (who I interviewed for a podcast). She therefore found herself in the peculiar position of running the only hardcore adult service legally allowed to trade in the UK while ignoring ATVOD’s rules.

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In our interview, Mistress Tytania said “I think ATVOD are now trying to correct all the holes in their argument. I’m free for now, but I don’t know for how long.” Well, now we know how long. Tucked away in the recently issued consultation on new porn laws, was an important line:

“… our proposals would also apply to pornography that the BBFC would rate as category 18 sex works and would apply to all online content, not just VOD services.”

At a stroke, this closes the only possible route of appeal for adult services that wish to remain in the UK. It also extends the age verification requirement to still images as well as video, and to soft imagery as well as sexually explicit. It will probably also extend to cartoons, drawings and other artwork, and maybe even to text.

It will cover Twitter and Google, and many other non-porn services, as these feature nude imagery. In other words – as I have often pointed out – this is a blueprint for censoring the Internet as a whole, not (as billed) protecting children from seeing porn.

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