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Abstract
This article demonstrates in detail how the British government, the Office of Communications and The Authority for Television on Demand have interpreted the requirement in the European Union's Audio Visual Media Services Directive that any material on video-on-demand services which might seriously impair the physical, mental or moral development of minors must be made available only in a way that ensures minors will not normally hear or see it. By EU standards, the approach adopted has been a strict one, raising questions about whether the UK authorities have gone beyond the requirements of the Directive, and thus whether their policies need underpinning by new legislation at the national level. This in turn poses further questions about the desirability of such legislation, its compatibility with Article 10 of the European Convention on Human Rights, the advisability of driving abroad the providers of ‘adult’ on-demand services, and the practicability of attempting to regulate transnational media traffic in an increasingly online world where standards of acceptability vary widely from one country to another.
Acknowledgements
The author would like to thank Pete Johnson, Jerry Barnett, Myles Jackman and Dr Daithí Mac Sitígh for their considerable help whilst researching this article.
Notes
1. Such material may be sold only in licensed sex shops, to which no-one under the age of 18 may be admitted. However, the British Board of Film Classification (BBFC) has very strict rules about what may and may not be classified at R18 (for a discussion of the limits of the possible at this level, see Petley Citation2013).
2. I am very grateful to Dr Daithí Mac Sítigh of Edinburgh University for providing a copy of this letter, which he obtained from the DCMS as a result of an application under the Freedom of Information Act before the publication of Sexually Explicit Material and Video on Demand Services. However, the letter was heavily ‘redacted’ (in other words, censored); indeed, one of its three pages is entirely blank.
3. Somewhat oddly, given Dr Cumberbatch's eminence in this particular field, the review was appended by a brief ‘peer review commentary’ by Professor Sonia Livingstone.
4. Ofcom's views on what parents think about the regulation of sexual material appear to be based on research carried out for it by Opinion Leader in 2009 and published as Attitudes Towards Sexual Material on Television (http://stakeholders.ofcom.org.uk/binaries/consultations/bcode09/annexes/sextv.pdf), although, as the title suggests, the research was concerned primarily with attitudes to sexual material broadcast by conventional means. This and other audience research by Ofcom is discussed in Petley (Citation2011a).
5. One should point out here that there is by no means universal agreement that such material is ‘harmful’, even to the ‘vulnerable’.
6. Again, I am very grateful to Dr Daithí Mac Sítigh for providing a copy of this letter (which, on this occasion, was not ‘redacted’), obtained from the DCMS as a result of an application under the Freedom of Information Act.
7. In effect, little more than five seminars, attended mainly by industry representatives, in the second half of 2012.
8. Details of ATVOD's determinations: http://www.atvod.co.uk/complaints/determinations/2013-determinations
9. Details of Ofcom's determinations: http://www.ofcom.org.uk/about/annual-reports-and-plans/financial-penalties/financial-penalties-imposed-for-the-period-2012-13/
10. Interestingly, in cases involving non-pornographic material, Ofcom has behaved very differently, and interpreted ‘television-like’ in a much narrower fashion. See, for example: http://stakeholders.ofcom.org.uk/binaries/enforcement/vod-services/Everton-TV.pdf and http://www.olswang.com/media/37671139/eclr_volume_13_issue_5_pg_14-15.pdf