VOD censorship in UK

Background

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 Classification
• 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.

 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 secure.

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.

 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.

Vaizey said:

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.

A starting point is Ofcom's report to Government, Sexually Explicit Material and Video On Demand Services which has just been published.

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.